State of Tennessee v. Wayne Robert Wait

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 28, 2011 Session

STATE OF TENNESSEE v. WAYNE ROBERT WAIT

Appeal from the Circuit Court for Blount County
No. C-16182 Michael H. Meares, Judge (at trial)
Jon Kerry Blackwood, Senior Judge (at sentencing)1

No. E2010-01212-CCA-R3-CD - Filed October 28, 2011

A Blount County jury convicted the Defendant, Wayne Robert Wait, of second degree
murder and, thereafter, the trial court imposed a sentence of 18 years at 100% in the
Department of Correction. On appeal, the Defendant raises the following issues for our
review: (1) whether the trial court abused its discretion in allowing a police officer to testify
about blood spatter evidence he observed at the scene when the officer was not tendered as
an expert in blood spatter analysis; (2) whether the trial court erred in limiting the admission
of prior violent acts allegedly committed by the victim offered to corroborate the Defendant’s
contention that the victim was the first aggressor and to support his self-defense claim; and
(3) whether his sentence is excessive because the trial court failed to apply mitigating factors
and gave too much weight to the sole enhancing factor. We conclude that there is no
reversible error and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Robert W. White (at sentencing and on appeal) and Damon Wooten (at trial), Maryville,
Tennessee, for the appellant, Wayne Robert Wait.

1
The trial judge, Michael Meares, who presided over the Defendant’s trial was not re-elected. The successor
judge was disqualified from participating in the matter because he had presided over the Defendant’s
preliminary hearing. Therefore, a new judge, Jon Kerry Blackwood, had to be designated to adjudicate the
motion for new trial hearing and sentencing hearing.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Michael A. Flynn, District Attorney General; Tammy M. Harrington and Robert L. Headrick,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION
FACTUAL BACKGROUND

This appeal arises out of the August 12, 2006 fatal shooting of the victim, Michael
Troy Bruce. On February 5, 2007, a Blount County grand jury charged the Defendant with
the first degree premeditated murder of the victim. See Tenn. Code Ann. § 39-13-202. The
Defendant’s trial was held April 23-26, 2008.

Murray Edward Boring testified that on August 12, 2006, he lived on Hill Haven Road
in Louisville. The cabin he had been building on the property was still unfinished at that
time, and Mr. Boring was staying in the loft of the cabin or sometimes in a camper on the
property. The Defendant, aka “Moses,” and the victim both lived in the same community
with Mr. Boring; the Defendant lived in a camper next to the victim’s residence.

When asked how he began the day on August 12, 2006, Mr. Boring replied that he and
the Defendant had gathered up bottles on the property and were hauling them to the dump;
they did this in response to complaints by the victim, who was worried about his father, the
owner of the property, seeing all the trash. While driving off the property, the two men saw
the victim and gestured to him to look at the bottles they had collected. After going to the
dump, Mr. Boring and the Defendant stopped at a gas station to purchase alcohol and then
returned home to watch television. The victim went to Phelps Dairy Farm to cut up a fallen
tree.

Mr. Boring testified that he, the Defendant, and the victim were all friends and that
they often drank together and watched westerns. On the day in question, the Defendant and
Mr. Boring were drinking beer—the Defendant consuming maybe two or three—and
watching television at the cabin when the victim returned that afternoon. According to Mr.
Boring, the victim had been drinking and was agitated; the victim asked the Defendant, who
was sitting on the sofa, to give him money for marijuana, but the Defendant said no. The
victim became angry and kicked the Defendant’s beer bottle over, breaking it. Mr. Boring
told the victim to “take it outside” if he was going to fight the Defendant. The victim then
told Mr. Boring that it was “none of [his] business.” Mr. Boring said, “well, I guess it is,
you’re in my house[,]” and got up out of the chair that he had been sitting in. The victim then
picked up a two-by-four piece of lumber to confront Mr. Boring. In response, Mr. Boring
picked up a piece of lead pipe and knocked the two-by-four out of the victim’s hands. Mr.
Boring then threw the lead pipe out into the yard.

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 At some point, the Defendant had exited the cabin to retrieve his shotgun, which he
had placed in Mr. Boring’s camper trailer just outside the cabin. Mr. Boring said he and the
victim were standing “just kind of staring each other down,” when he “caught some
movement” behind him, so he turned and saw the Defendant in the other doorway holding
the shotgun. Mr. Boring asked the Defendant to put the gun down, but the Defendant raised
his weapon. Mr. Boring said that he felt a shot come past him as he was dropping his hand
and that the shot hit the victim in his chest. Mr. Boring was standing very close to the victim
when the victim was shot, within two to three feet, causing him to be covered with blood
“from head to toe[.]” Mr. Boring opined that, due to the location of the victim’s wound, he
“was dead before he hit the ground.” Realizing that he could not help the victim, Mr. Boring
“was getting out of there [b]ecause [he] didn’t know whether [he] was going to be the next
one that got hit with something.” As Mr. Boring was exiting the cabin, the Defendant said,
“Well, I done [sic] it this time. Go over Bill’s and call.” Mr. Boring left and phoned 9-1-1
at 3:13 p.m. After placing the call, Mr. Boring waited by the road for the police to arrive;
the Defendant also waited.

According to Mr. Boring, the whole incident lasted only “a couple of minutes at the
most.” Mr. Boring stated that the Defendant was standing outside the house when he fired
the shotgun and opined that the victim was not moving forward when the Defendant shot
him.

Mr. Boring testified that both the victim and the Defendant drank frequently and both
were known to carry firearms. Mr. Boring characterized the victim as “a little agitating
sometimes” and “a different type of person” who “had a tendency to get on people’s bad
side[.]” Mr. Boring described an incident where the victim shot at his feet while they were
watching a movie; the bullet “just barely missed” his feet. The victim was mimicking a John
Wayne film, and after Mr. Boring “jerked [his] feet back[,]” that was the end of it. Mr.
Boring characterized the Defendant as “one of the nicest men [he] ever met” and a “peaceful
man.” Mr. Boring opined that the Defendant was not intoxicated at the time he shot the
victim, stating, “No. He’s drank more than that.”

Following the 9-1-1 call, Detective James Wilson of the Blount County Sheriff’s
Department was dispatched to the scene. Detective Wilson talked to officers already on the
scene to get an idea of what happened; he was informed that the Defendant had been detained
and was seated in a patrol car. Detective Wilson proceeded to process the scene, recovering
the “pump-action” 12-gauge shotgun from the trailer behind Mr. Boring’s cabin, and
discovering that the Defendant had loaded the weapon with double-aught buckshot. The
shell casing was still inside the shotgun, accordingly it was concluded that the Defendant had
not attempted to reload the weapon after firing at the victim. Detective Wilson also found

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a pellet—consistent with the double-aught buckshot—on top of the chair that Mr. Boring had
been sitting in prior to the shooting.

Detective Wilson’s investigation confirmed that the trajectory of the shot came from
near the door and revealed that the weapon was pointed in a “downward angle” when it was
fired. The two-by-four piece of wood the victim was holding, before being knocked of his
hands, was also taken into evidence. According to Det. Wilson, the path of the nine pellets
showed that “the victim’s body was somewhat angled” when he was shot, despite that the
fact that the Defendant and the victim were approximately the same height. He observed that
there were no injuries to the victim’s hands, but acknowledged on cross-examination that this
was possible if the victim’s hands were raised. Also, two knives were discovered in the
victim’s back-pants pocket.

Detective Wilson examined the victim’s body and observed that there was a large
amount of blood pooled around the body. Detective Wilson testified that his observations
of blood spatter and pooling at the scene corroborated Mr. Boring’s placement of the
individuals present at the scene and the fact that the victim was standing, and not moving
forward, at the time he was shot.

After processing the scene, Det. Wilson, along with Det. David Henderson,
interviewed the Defendant, who gave a lengthy statement. Detective Wilson confirmed that
the Defendant was cooperative with authorities, that he offered no resistance, and that there
was no evidence he disturbed anything at the scene.

In his statement to the authorities, the Defendant stated that the victim had a violent
temper and that the victim often put guns to the Defendant’s head. When the victim came
in the cabin, he kicked over the Defendant’s bottle, breaking it, and was swinging his fists
in the Defendant’s face. The Defendant walked out and retrieved the shotgun that he had
placed in Mr. Boring’s camper earlier that day after Mr. Boring had told him that the victim
was on a “warpath.” He got the gun “to draw a line” with the victim. The Defendant said
that the victim started toward him to take the gun away and that then it “got out of control.”
He could not allow the victim to disarm him because the victim was “strong and mean as a
snake” with “two aggravated assaults for waving guns at people.” According to the
Defendant, he had suffered mental and physical abuse over the years at the hands of the
victim, including being pistol-whipped by him. He believed that, if disarmed by the victim,
the victim would have used the shotgun to beat him to death.

The Defendant stated that he was on the back porch of the cabin and that the victim
was six to eight feet away, coming towards the back door, when he fired the shot. The
Defendant indicated that he did not get the weapon completely “shouldered” before firing.

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After shooting the victim, the Defendant returned the shotgun to the camper near Mr.
Boring’s trailer. He claimed that Mr. Boring remained seated throughout the altercation.
The Defendant admitted that he intentionally shot the victim and that the gun did not
accidentally discharge; he acknowledged that he could have left the cabin rather than
returning armed to confront the victim.

A blood sample was collected from the Defendant at 1:20 a.m. on August 13, 2006,
and testing showed that the level of alcohol in the Defendant’s blood was .06% at that time
and that no drugs were detected. A sample was also taken from the victim at the time of
autopsy, which reflected that the level of alcohol in his blood was .25% and that no drugs
were detected.

Doctor Darinka Mileusnic-Polchan, Acting Chief Medical Examiner for Knox County,
testified as an expert witness in forensic pathology. She stated that the cause of death was
a gunshot wound to the chest, which shredded the victim’s heart and caused a “large amount
of blood that gushed from the body.” She testified that based upon her review of the scene,
the photographs, and the autopsy of the victim (performed by a different medical examiner),
the victim was at an angle at the time he was shot, i.e., not directly facing the shooter. Based
upon her review of the blood spatter at the scene, her opinion was that the victim was not
advancing at the time he was shot and that he collapsed from a standing position:

Well, to me, it seems to me that it’s relatively simple scene, that [the
victim] would be stationary, facing Mr. Boring and facing the TV, in that
particular area. Shooting scenes are always tricky because we don’t really
know up front in what kind of position or what kind of movement the victim
or the perpetrator could be. They frequently end up being dynamic. Again, it
depends really on what was happening right before the shooting. In this
particular case, all the indications were that Mr. Boring and the victim were
standing almost facing each other at an angle. That makes sense, because
that’s what I see at the time of the autopsy, the way the trajectory goes through
the body.

As far as the shooter, I cannot really tell what he was doing. But I can
tell you that he was relatively close and the barrel and the victim were about
within three feet.

Dr. Mileusnic-Polchan testified that it was possible that the victim was conscious for as much
10 to 15 seconds after being shot, but here it appeared that the victim “falls over in the
direction where he was standing.”

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 Three witnesses testified for the defense. Robert Newton Perry, III, and Brenda Kay
Gibbs testified that the victim had a reputation for violence in the community and about a
conversation they had with Mr. Boring the day after the shooting. Mr. Perry relayed what
he was told by Mr. Boring as follows:

In the course of the conversation, [Mr. Boring] said that [the victim] came in,
got abusive with [the Defendant], and picked up a board and was threatening
with it. And [Mr. Boring] said you don’t come in my house and tell people to
leave my house and cause trouble with them in my house, and was asking [the
victim] to leave and to stop. [The Defendant] got up and left, went out one
door. Came back in the other after [Mr. Boring] had picked up pipe and
knocked the board out of [the victim’s] hand with it, which I don’t think [the
Defendant] knew that. [The Defendant] came back in the other door, had a
gun. Said that he said, “No, Moses,” and that [the victim] turned, put one foot
like this and the gun went off and [the victim] was shot.

According to Mr. Perry, the victim was not truthful, was dangerous, and always carried a
gun; he characterized the victim as “a canon ready to go off. . . . He would get real violent
quickly, over nothing.” Mr. Perry described the Defendant as “rally easygoing, laid back,
downright submissive, especially to [the victim]”—the Defendant had a reputation for
peacefulness. Mr. Perry opined that Mr. Boring “was more sober than [he’d] seen him in a
long time” on the day this conversation took place.

Ms. Gibbs was also present when the conversation took place, and she gave a similar
account of what Mr. Boring said to them that day: “Said [the victim] turned, took a step
toward [the Defendant], and the shot was fired.” She described the victim as “very violent,”
as “easily agitated” when he was drinking (which was almost daily), and as untruthful.
According to Ms. Gibbs, the Defendant was “[v]ery peaceful.”

Michael Owle testified that the victim had often threatened to kill the Defendant and
had brandished a gun around the Defendant. Mr. Owle also relayed an incident where the
victim had fired a gun near the Defendant’s feet, and the bullet “landed” within 12 to 16
inches of the Defendant’s feet. Mr. Owle said that the more drunk the victim got, the more
“violent he tended to get[,]” and that even if the victim was not drinking, he would get
violent if he “didn’t get his way and everybody do [sic] what he said[.]” Mr. Owle also said
that the victim was armed most of the time; however, he described the Defendant as “one of
the most peaceful men [he’d] ever met.”

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 Following the conclusion of proof, the jury found the Defendant guilty of the lesser-
included offense of second degree murder. See Tenn. Code Ann. § 39-13-210. On
November 20, 2009, the trial court sentenced the Defendant to the Department of Correction
for 18 years, as a violent offender. He now appeals.

ANALYSIS
On appeal, the Defendant argues the trial court erred in three respects: (1) The trial
court abused its discretion in allowing a non-expert witness to engage in expert testimony
about blood spatter evidence; (2) The trial court erred when it excluded proof about prior
violent acts committed by the victim; and (3) The trial court failed to consider appropriate
mitigating factors and improperly weighted the sole enhancement factor. We will address
each of these allegations in turn.

I. Detective Wilson’s Blood Spatter Testimony

The Defendant argues that the trial court erred by allowing Det. Wilson to testify
regarding “blood spatter and blood spatter evidence” when he was not qualified to do so.
The State contends that Det. Wilson’s testimony was not expert testimony, but opinion
testimony by a lay witness that satisfied the requirements of Tennessee Rule of Evidence 701.
Alternatively, the State argues that, even if Det. Wilson’s testimony was allowed in error,
such error was harmless because Dr. Mileusnic-Polchan offered blood spatter testimony at
trial without objection. We agree that the error was harmless.

During his direct testimony, Det. Wilson gave the following explanation of a crime
scene photograph:

This was again a photograph of [the victim] from the rear area where
he was standing. . . .

Essentially, you can see these areas here -- this area where the blood
comes down his back was -- was pooling evidence as the victim was bleeding.
This area in here is the exit area of nine projectiles of the buckshot, and that’s
where the blood had come from in the rear. Also from front. The entrance
wound itself, it can’t be seen in the photographs, was a very large entrance
wound. Basically perforated the heart and -- just basically a funnel from his
heart. There’s a lot of blood and that’s exactly the reason why. He’s going to
bleed out in most of the area here. And you can see -- once he actually stopped
and this was his final resting position you can see the blood to the rear that
leaked out and what was still in these areas.

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 What we noticed -- what I noticed that was indicative to me was there
was a lot of blood in this area, somewhat, that had fallen. It was directly on
top of areas of this shelving here. Not spatter evidence that was, you know, in
the background, as far as an offshoot of the projectiles flying through, that was
in this area, but appeared to be blood that would be expelled from the body
while the human heart is still pumping. And there are -- those areas are open
to allow that blood out.

This area right here, there was a very large amount of blood that had
fallen into a bucket as you can see on the side, but as well into the bucket.
There was water that was several inches deep in the bucket and there was
enough blood in the short amount of time before he fell that leaked down into
it that turned the water red.

At this point, defense counsel lodged the following objection: “Your Honor, at this
point, we would object. He is no blood spatter expert and has no qualifications on blood
spatter and we don’t think he’s qualified to --” The trial court did not allow the State an
opportunity to lay a foundation to establish Det. Wilson’s qualifications to answer the
question at issue, but simply ruled, “I’m going to overrule the objection. I think that he can
describe what he saw and what his conclusions were from that, sir. You can cross-examine
him.”

After the objection was overruled, Det. Wilson continued with his explanation:

Again, a larger amount of blood just concentrated in this area and in this
area here. There’s an area here where -- as can be seen, there is a pronounced
absence of blood. There’s also a relative area here where you can see it
appears as if the blood is congregated in this area and then this area, a little bit
here and then as the victim fell where the rest of it pooled out in this area here.

What we believe, and what the physical evidence indicated to me and
to the others at the scene, was that the victim was standing in this area here.
Then Mr. Boring was standing in this area here. Mr. Boring’s photos clearly
show that he had a large amount of blood -- it essentially covered his entire
right arm as well as on his body. This would be consistent with what Mr.
Boring and [the Defendant] have testified to later as to where persons in the
room were standing. If Mr. Boring were standing in this area looking in this
general direction and [the victim] were standing in this area, looking back in
this general direction, then those areas of the trajectory, where they struck the
victim, where the blood was located on the floor and on the scene, where the

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 blood was located on Mr. Boring and his testimony, all corroborate one
another that [the victim] was, in fact, standing in this area here. Whenever he
was struck in the heart and the blood very quickly began to expel out of this
body in a large volume, this would be consistent to the rear of this area here,
whereas he had nine pellets that blew out of his back as he perhaps started to
turn, and again ended up in this position, would have traversed through this
area here.

Detective Wilson was then asked to review another photograph of the victim “taken
from near his head, looking toward his feet.” Detective Wilson again gave a lengthy review
of the photograph:

These areas that we described are here and they’re even more pronounced in
this photograph, relative absence of blood. And, again, there are some smaller
amounts here as the victim were to start moving and turning, that blood is
spurting out, it’s going to cover those areas. But as you can see, there’s a
pronounced area here. One, two, three, four areas upon this table on top of it,
to the side. These areas here are obviously more pronounced, where there’s
blood that had been there. This area here is almost completely covered. As
you can see, the side of this bucket is almost entirely [red]. And inside that
bucket, that water has a red hue to it. That’s a lot of blood that was expelled
out into this area. And, again, you can see as the victim fell he fell upon his
right side, his right leg is underneath his left leg.

Unless qualified as experts, witnesses may only offer opinions or inferences which are
both “rationally based on the perception of the witness” and “helpful to a clear understanding
of the witness’s testimony or the determination of a fact in issue.” Tenn. R. Evid. 701(a).
Tennessee Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” This court has held that “lay
opinion testimony under Rule 701 is limited to those observations of a lay witness that are
not based on scientific, technical, or other specialized knowledge which would qualify the
witness as an expert under Rule 702.” State v. Timothy Murrell, No.
W2001-02279-CCA-R3-CD, 2003 WL 21644591, at *6 (Tenn. Crim. App. July 2, 2003)
(citing United States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002)).

On appeal, the Defendant cites to State v. Halake, in support of his argument that Det.
Wilson’s testimony was erroneous and prejudicial, thus requiring a new trial. See 102
S.W.3d 661 (Tenn. Crim. App. 2001). In Halake, the police discovered two small round

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spots of the victim’s blood on the defendant’s pants legs. Id. at 669. Defense counsel
objected when the prosecution asked a police detective to testify about the similarity between
the blood spots on the defendant’s pants and other blood spatter that the officer had observed
from other gunshot wounds in other cases. Id. The officer, who had observed 100 crimes
scenes and various forms of blood spatter, was not trained as an expert in identifying blood
spatter. Id. After defense counsel’s objection, the State attempted to lay a foundation to
establish the officer’s qualifications to answer the question. Id. at 670. The trial court then
held a jury-out hearing and ruled that, while the officer was not qualified to testify as an
expert based on his training, he could qualify as an expert based upon his observations of
numerous blood spatters at other crime scenes. Id. The trial court also noted that his
qualification as an expert was for the limited purpose of answering the prosecution’s one
question. Id. Following this ruling, the officer testified as permitted: The spots of the
victim’s blood found on the defendant’s pants were consistent with other gunshot blood
spatter based upon the officer’s experience. Id. at 669. On appeal, a panel of this court held
that the trial court erred by qualifying the officer as an expert, there not appearing to have
been a sufficient basis to do so. Id. at 672. The court went on to hold that the defendant was
prejudiced by the officer’s testimony concerning the blood spatters. Id.

Here, the State argues that Det. Wilson was not offered as an expert witness and that
his testimony as a lay witness was admissible pursuant to Rule 701, Tennessee Rules of
Evidence. The State cites to State v. James Williams, in support of its argument that Det.
Wilson’s conclusion were based on his observations without further testing and could have
been made by anyone with Det. Wilson’s experience. See No. 88-175-III, 1988 WL 138843
(Tenn. Crim. App. Dec. 30, 1988), perm. appeal denied, (Tenn. Apr. 3, 1989). In Williams,
the officer “testified, over objection, that marks on two of the four bullets were ‘strike marks’
caused by the indention of a firing pin[,]” and “the trial judge ruled that this testimony
concerned ‘a matter of such common knowledge that it doesn’t take an expert to make a
statement or observation about [it].’” Id. at *2. The panel reasoned that the officer “had 18
years of experience in police work” and that “the officer’s conclusion was based on simple
observation of the bullets, without further testing, and could have been made by anyone
familiar with weapons.” Id. However, given the nature of the testimony offered by Det.
Wilson, we do not consider the facts in the Williams case to be analogous with the situation
presented here.

Halake is directly on point to the case at bar. In Halake, this court concluded that
“[t]he trial court properly categorized [the officer’s blood spatter] testimony as expert
testimony because his opinion testimony was predicated upon specialized knowledge that is
unfamiliar to most lay-persons and that is normally offered as expert testimony, due to its
complex nature.” 102 S.W.3d. at 670-71 (citing State v. Melson, 638 S.W.2d 342 (Tenn.
1982) (recognizing “blood stain analysis” and the analysis of blood spatters as a field of

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expertise); State v. Paul Dennis Reid, No. M1999-00803-CCA-R3-DD, 2001 WL 584283,
at *18 (Tenn. Crim. App. May 31, 2001) (referring to the testimony of an expert in blood
spatter analysis); State v. John Charles Johnson, No. M2000-00529-CCA-R3-CD, 2001 WL
208512, at *3-4 (Tenn. Crim. App. Mar. 1, 2001) (referring to the expert testimony of a
forensic pathologist in blood spatter analysis), perm. appeal denied, (Tenn. July 9, 2001);
State v. Damon Theodore Marsh, No. M1999-01879-CCA-R3-CD, 2000 WL 1449849, at
*2 (Tenn. Crim. App. Sept. 29, 2000) (referring to the testimony of an expert on blood spatter
analysis); State v. Joyce M. Lindsey, No. 02C01-9804-CR-00110, 1999 WL 1095679, at *6
(Tenn. Crim. App. Oct. 28, 1999) (referring to the testimony of an expert in blood spatter
analysis), perm. appeal denied, (Tenn. June 26, 2000); State v. Allan Brooks, No. 01C01-
9510-CC-00324, 1998 WL 754315, at *3 (Tenn. Crim. App. Oct. 29, 1998) (referring to the
testimony of an expert in blood spatter analysis), perm. appeal denied, (Tenn. Apr. 19, 1999);
State v. King David Johnson, Jr., No. 01C01-9610-CC-00430, 1997 WL 661501, at *2
(Tenn. Crim. App. Oct. 24, 1997) (referring to the testimony of an expert in blood spatter
analysis); State v. Joey L. Kilzer, C.C.A. No. 1, Dyer County Criminal, 1988 WL 132721,
at *1 (Tenn. Crim. App. Dec. 14, 1988) (referring to the expert testimony of a forensic
pathologist in blood spatter analysis), perm. appeal denied, (Tenn. Apr. 3, 1989)). The
Halake court further noted that “[b]lood spatter analysis is a complicated subject, as the
analyst studies the blood spatter and determines what blow created the spatter, thereby
recreating the events of the crime.” Id. at 672 (citing Melson, 638 S.W.2d 342). The panel
further elaborated that “[o]ther states have also recognized the complexity of blood spatter
analysis and the necessity of having a well-qualified expert testify regarding his or her
analysis of the blood spatters.” Id. (citing State v. Goode, 461 S.E.2d 631 (N.C. 1995)
(rejecting the defendant’s argument that an expert was not sufficiently qualified as a blood
spatter analyst, as the expert attended two training seminars on blood-spatter analysis, one
basic and one advanced, as well as other courses that dealt with this type of analysis, and who
now instructed other SBI agents on blood spatter analysis); Danny J. Veilleux, Annotation,
Admissibility, in Criminal Prosecution, of Expert Opinion Evidence as the “Blood Splatter”
Interpretation, 9 A.L.R.5th 369, at § 15[a]-[b] (1993) (annotating cases in which police
officers with sufficient training and expertise were allowed to testify as blood spatter analysis
experts and cases in which police officers were deemed not to have sufficient qualifications
to testify as experts)).

In the instant case, because the trial court abruptly ruled the testimony was admissible
as observations by a lay witness, Det. Wilson’s qualifications to testify a blood spatter expert
were not addressed. We note that later in Det. Wilson’s direct testimony, Det. Wilson was
asked about the two-by-four recovered from the scene, and he stated that “it’s not my
expertise to be a blood spatter expert but I can tell you the trailing . . . edges indicating the
direction were all consistent with what we found.” The trial court’s conclusion that Det.
Wilson could testify as a lay witness did not have a basis in the rules of evidence. Detective

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Wilson’s review of the photographs for the jury not only included his observations at the
scene, but also included blood spatter analysis about a material fact disputed at trial—where
the persons present in the room were positioned at the time of the shooting. Under these
circumstances, there was not a sufficient basis established to qualify Det. Wilson as an expert
in blood spatter, and we therefore hold that the trial court erred by allowing the testimony.

However, we agree with the State that such error was harmless. The medical
examiner Dr. Darinka Mileusinc-Polchan offered blood spatter testimony, without objection,
about the positioning of the individuals in the room when the Defendant shot the victim. Dr.
Mileusinc-Polchan’s testimony fell within her purview as a forensic pathologist. See John
C. Johnson v. State, No. M2004-02675-CCA-R3-CO, 2006 WL 721300, at *14 (Tenn. Crim.
App. Mar. 22, 2006), perm. appeal denied, (Tenn. Aug. 20, 2007). The Defendant did not
offer any real evidence, other than his own self-serving statements, to dispute Dr. Mileusinc-
Polchan’s findings; her conclusions on the blood spatter evidence present at the scene were
not seriously contradicted by any witness at trial. Dr. Mileusinc-Polchan’s testimony
encompassed Det. Wilson’s conclusions about the blood spatter evidence he observed at the
scene; and the jury obviously accredited Dr. Mileusinc-Polchan’s testimony, which
corroborated Mr. Boring’s version of events. We are satisfied that the evidence established
the Defendant’s intent to kill the victim beyond a reasonable doubt. Therefore, it was
harmless error. See Veilleux, supra, at § 15[b] (citing Commonwealth v. Duffey, 548 S.2d
1178 (Pa. 1988)) (the Pennsylvania Supreme Court, under similar circumstances as presented
here, determined that the admission of the expert testimony by a state trooper regarding blood
spatter analysis, although error, was harmless).

II. Admissibility of Specific Violent Acts by the Victim

Next, the Defendant argues that the trial court erred in refusing to admit testimony
from two witnesses, Rhonda Cooper and Carl Guillen, who would have testified concerning
the victim’s prior violent acts against them. The Defendant submits that this testimony was
“corroborative” evidence in support of his contention that the victim was the first aggressor
and that he acted in self-defense or defense of a third person. The Defendant contends that,
had this testimony been allowed, the jury “would likely have . . . reach[ed] a different
outcome in this case.” The State responds that the trial court acted within its discretion when
it limited testimony about prior violent acts allegedly committed by the victim. According
to the State, because the Defendant was allowed to offer evidence regarding the victim’s
propensity for violence as well as testimony regarding specific instances of threats made by
the victim toward the Defendant, the Defendant is not entitled to relief.

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 The trial court held a jury-out hearing at which the witnesses testified. Rhonda
Cooper testified that she was familiar with the victim and the Defendant. When asked if the
victim had ever pulled a firearm on her, she gave the following narrative of events:

A. We were at Carl’s little camper where --
Q. Is that Carl Guillen?
A. Yes. Little campsite like. There was a problem between [the
victim] and Michael, which was my ex-boyfriend. And [the victim] left, went
and got his gun and came back, and put the gun in my face. He had parked his
car out in the street, walked up, put the gun in my face, and I began to cry and
beg him not to shoot me, you know. . . .
Q. Did he fire any shots that day?
A. Yes, he did.
Q. Okay. Did you see him fire the shots, just hear them?
A. Yes, I did.
Q. And what direction was the gun pointing when he did that?
A. He was firing at Michael Davis and at Carl, but mostly at Michael.
He was trying to shoot Michael.
Q. Do you have any idea why he was trying to shoot Michael.
A. They had been -- they had had an altercation. They were at odds --
he had before pulled a pistol on Michael at another time. They were having
a disagreement over that. They had been fighting over that. And Michael hit
him.

Ms. Cooper stated that everyone who worked at the Phelps’ farm was aware of the incident.
She could not recall whether she ever specifically discussed the incident with the Defendant,
who was often present on the farm.

On cross-examination, Ms. Cooper was asked if the incident happened on June 28,
2006, but due the passage of time, she responded with only a “maybe.” According to Ms.
Cooper, the incident happened at the Phelps’ farm in the area where Carl Guillen lived, and
the only people present were her, Michael, Carl, and the victim. Ms. Cooper further
elaborated that, when the victim left to go retrieve his gun, he tried to run them over with his
car as he exited. Ms. Cooper acknowledged that the victim was charged with aggravated
assault as a result of these events; however, she was not aware that the charges had been
dismissed following her failure to appear in court.

Carl Guillen then testified about this earlier episode involving the victim. He gave
a similar account of events as to that of Ms. Cooper. Mr. Guillen elaborated that the initial
dispute happened three days prior to this June 2006 shooting, when the victim pulled a gun

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on Michael Davis at the diary farm and threatened to shoot his tires because he would not
leave the area. On June 28, when the victim arrived at Mr. Guillen’s place, Michael punched
the victim, and Mr. Guillen “broke up” the fight that ensued. It was then that the victim left
to go get his weapon. On cross-examination, Mr. Guillen stated that, although he heard the
gun fire, he did not see the victim shoot or know what the victim was shooting at. Mr.
Guillen also testified that he did not have any specific discussions about this incident with
the Defendant, although “it probably was discussed at times” amongst farm personnel.

Johnnie Phelps, a member of the family owning the Phelps’ farm, also testified. He
stated that the Defendant worked for him on the farm. Mr. Phelps said that he was familiar
with the incident that occurred between the victim, Mr. Guillen, Ms. Cooper, and Ms.
Cooper’s boyfriend. Mr. Phelps relayed that the June 28, 2006 incident involving those
individuals was “widely talked about” on the farm by farm employees and that the “vast bulk
of the employees” knew about the altercation.

The trial court excluded the proffered evidence, ruling as follows:

The State v. Ray (phonetic) seems to the [c]ourt to be more on point, if you’re
looking at your annotations there. In a murder trial it’s proper to exclude
testimony of defense witnesses as to a specific instance of violent conduct by
the victim offered to prove the first aggression by the victim since the
testimony amounted to character evidence.

. . . It’s not the Defendant’s knowledge of a prior incident that makes
the prior incident of conduct of the deceased admissible. The fact that he had
a reputation for violence or reputation for going armed, the [c]ourt feels is
admissible, to offer opinion testimony about his character for violence or his
habit of carrying -- going armed. But to offer this specific instance with this
Ms. Cooper and the holding the gun to her head, that is about his being angry
and going back and getting a gun. And in this specific case, there’s no
indication that the deceased was armed at the time of this killing.

So, I don’t understand -- you know, you’re saying it’s offered to show
his aggression. I’m going to allow you to put on opinion testimony with
respect to his character for violence. But to show this specific act, you have
to give me another reason why it would be admissible.

Following a later jury-out hearing about the proposed testimony from Michael Owle,
the trial court made the following notation:

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 And just to review briefly, what the [c]ourt -- the prior specific
incidents of conduct that the Defendant had proffered earlier today [the
testimony of Ms. Cooper and Mr. Guillen], the [c]ourt finds no basis for saying
that those specific incidents are probative on this issue of self defense. There’s
no proof that the Defendant actually knew about them, the specific incident of
holding the gun to the lady’s head. So, they don’t go to his state of mind. And
they don’t -- it doesn’t seem to be material on the issue of who’s the first
aggressor, either. I mean, what those incidents have to do with the deceased’s
propensity to go get a gun and the evidence in this case is that he was unarmed
at the time of the shooting. And so your argument that they’re somehow
relevant on the issue of who the first aggressor was, the [c]ourt didn’t buy that.

A defendant may offer proof of a victim’s prior violent acts under limited
circumstances. In those cases in which a defendant’s fear of the victim is relevant and the
defendant is aware of the prior violent acts, the defendant, and the defendant alone, may
testify concerning his or her knowledge of the victim’s violent conduct. Williams v. State,
565 S.W.2d 503, 505 (Tenn. 1978); see also State v. Hill, 885 S.W.2d 357, 361 n.1 (Tenn.
Crim. App. 1994). If the State questions his basis of knowledge concerning the prior violent
acts, then the defendant may introduce the corroborating witnesses in rebuttal. Hill, 885
S.W.2d at 361 n.1. These witnesses may only testify as to what they told the defendant, not
as to what they personally observed. Id.

In those cases in which it is alleged that the victim was the first aggressor, the
defendant may offer evidence through the testimony of a third person to support this
assertion. State v. Ruane, 912 S.W.2d 766, 781-82; see also Neil P. Coen, et al., Tennessee
Law of Evidence § 4.04[5][d] (5th ed. 2005) (“[I]n a criminal case where there is some
evidence suggesting that the victim was the first aggressor, the defendant may offer proof of
the victim’s prior violent acts with third persons.”). This evidence is considered
corroborative evidence, not substantive. Ruane, 912 S.W.2d at 781-82. Additionally, the
defendant need not be aware of these prior violent acts. Hill, 885 S.W.2d at 357; see also
State v. Furlough, 797 S.W.2d 631, 649 (“[W]hether the defendant knew of that reputation
is irrelevant.”). There are three prerequisites to the introduction of corroborative evidence
of the victim’s first aggressor tendencies: there must be proof that the defendant acted against
the victim in self-defense; the trial court must determine whether there is a factual basis
underlying the defendant’s allegations that the victim had first aggressor tendencies; and the
trial court must determine whether the probative value of the corroborative evidence is
outweighed by the potential for unfair prejudice. State v. Billy Joe Henderson, No.
03C01-9804-CR-00139, 1999 WL 398087, at *6 (Tenn. Crim. App. June 18, 1999) (citing
Ruane, 912 S.W.2d 766), perm. appeal denied, (Tenn. Nov. 22, 1999)

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 Following our review, we conclude that the trial court’s ruling was erroneous. The
Defendant sought admission of the evidence to corroborate his claim that the victim was the
first aggressor and that he acted in self-defense or defense of another. Indeed, the trial court
instructed the jury on the defense of self-defense and defense of a third person. The trial
court should have proceeded to analyze the admissibility of the proffered proof. However,
we determine that the trial court’s failure in this regard is harmless.

The proof which the Defendant wanted to introduce was that the victim had earlier
placed a pistol to a women’s head and shot at her boyfriend following a physical altercation
between the victim and the boyfriend. This is only weak corroboration of the Defendant’s
claim that the victim was the first aggressor during their confrontation. The victim was
unarmed at the time the Defendant shot him, and the circumstances surrounding both
incidents are dissimilar. Moreover, there was absolutely no proof in the record other than
the Defendant’s own statements that the victim made any move toward or against the
Defendant or Mr. Boring. Additionally, while the Defendant was prevented from presenting
testimony about this June 28, 2006 incident, he was permitted to present Michael Owle’s
testimony about specific prior violent acts and threats by the victim against the Defendant.
The Defendant was also allowed to present testimony from other witnesses about the victim’s
violent character and reputation for violence in the community. Accordingly, we hold that
the trial court’s error does not affirmatively appear to have affected the result of the trial on
the merits. See Tenn. R. App. P. 36(b). See, eg., State v. Charles Ray Allen, No. M1999-
00818-CCA-R3-CD, 2000 WL 1649507, at *7 (Tenn. Crim. App. Nov. 3, 2000), perm.
appeal denied, (Tenn. Apr. 9, 2001); State v. John D. Joslin, No. 03C01-9510-CR-00299,
1997 WL 583071, at *37 (Tenn. Crim. App. Sept. 22, 1997) (“[W]e are confident that the
jury had before it a complete and accurate description of the violent, aggressive nature of the
victim”), perm. appeal denied, (Tenn. Nov. 9, 1998).

III. Sentencing

The Defendant contends that the trial court erred in setting the length of his sentence
at 18 years. At the time of the sentencing hearing, the Defendant was fifty-six years old, had
never been married, and had no children. The Defendant reported that he moved to
Tennessee in 1982, that he lived with his mother in Friendsville, and that he had three sisters
who lived in Blount County. The Defendant listed his physical health as good, although he
listed problems with “busted up joints” including his shoulder and knee and claimed to have
“mild heart disease.” He described his mental health as good. The Defendant stated that he
had not used illegal drugs but admitted that he began drinking alcohol in 1975, stating that
he drank eight 16-ounce beers two or three times a week, and would sometimes drink
whiskey. The Defendant depicted episodes where he would go bar-hopping: “He would park
his car on the edge of town and then walk from place to place ‘honey-tonking.’ After a night

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of this he would walk back to his car and go home.” He acknowledged that alcohol had
caused some of his problems but said “he could quit using alcohol for many weeks at time
if he wanted to.” The Defendant claimed that “he was slowing down the amount he was
drinking prior to his arrest” due to his age and health.

The Defendant reported that he left high school after the tenth grade due to his
dyslexia, which caused him to be unable to complete his assignments. He claimed that he
could read “very well” and had a “high IQ.” The Defendant was last employed as a sweeper
at Bevco Parking services, but left that job after his father died in 2004. He also claimed that
“he used to do farm work.” At the sentencing hearing, the Defendant testified that he had
a head injury that kept him from working and that he was about to return to work when the
shooting happened.

His criminal history showed multiple convictions for public intoxication and one
conviction for possession of a weapon with the intent to go armed. The Defendant reported
most of his prior arrests to his presentence officer; however, he thought the weapons charge
had been dismissed, but the clerk of the court in Alcoa told the presentence officer that the
Defendant had been convicted of the charge.

The victim’s mother completed a Victim Impact Statement. She asserted that the
Defendant, “a free loader,” was asked to leave the property many times and that, on the day
of the shooting, the victim had returned to make sure the Defendant had moved out. While
she admitted that her son may have had a drinking problem, she considered him to be a “good
man” and a hard worker, expressing profound grief over his death. The victim’s mother, who
had sought grief counseling, requested that the Defendant spend the “rest of his natural life”
in jail. She also claimed that some of the victim’s personal belongings had been stolen
following the shooting. The victim’s father also wrote a letter to the court, reiterating much
of the same sentiment. The victim’s mother and sister testified about their loss at the
sentencing hearing.

On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial

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court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

In conducting a de novo review of a sentence, this court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The defendant’s potential for rehabilitation or
treatment should also be considered. See Tenn. Code Ann. § 40-35-103(5).

The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

the trial court is free to select any sentence within the applicable range so long
as the length of the sentence is “consistent with the purposes and principles of
[the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
and principles include “the imposition of a sentence justly deserved in relation
to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
punishment sufficient “to prevent crime and promote respect for the law,”
[Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
40-35-103(5).

Id. (footnote omitted).

The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing

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factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

Second degree murder is a Class A felony. See Tenn. Code Ann. § 39-13-210(c). As
a Range I, standard offender, the Defendant faced a potential sentence of 15 to 25 years for
his Class A felony conviction. See Tenn. Code Ann. § 40-35-112(a)(1). The trial court
imposed an enhanced sentence of 18 years.

In setting the length of the Defendant’s sentences, the trial court found one
enhancement factor to be applicable: the Defendant had a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range. See Tenn. Code Ann. § 40-35-114(1). The trial court also found that one mitigating
factor applied: the Defendant, although guilty of the crime, committed the offense under such
unusual circumstances that it is unlikely that a sustained intent to violate the law motivated
the criminal conduct. See Tenn. Code Ann. § 40-35-113(11). In weighing these two factors,
the trial court reasoned as follows:

The [c]ourt is aware of this altercation that occurred with the incident
with the pipe and his reaction to it. The [c]ourt finds that this mitigating factor
certainly applies in this situation. . . .

....

And [the c]ourt finds that that enhancement factor, although that
enhancement factor involves criminal behavior, they do not rise to the level of
felonies. It is an extensive criminal history that involves alcohol and a
possession of a firearm.

And it’s unfortunate in our society that there’s a lifestyle that the
majority of our population simply do not understand. And that is the easy

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 resort to violence as a result of alcohol addiction, the use of alcohol, or drugs.
It seems to be endemic that the appropriate way to resolve disputes under those
circumstances is resort to the availability of a weapon.

Now, this is not to mean that in giving this enhancement factor greater
weight than the mitigating factor, this [c]ourt is seeking to rely on any other elements other
than the elements of this offense.

This is why the enhancement factor outweighs the mitigating factor.
Because the [D]efendant has had a prior history of alcohol addiction, or
alcoholic-related crimes, and has possessed a weapon. And those two volatile
factors, in themselves, are going to lead to violence. Ultimately, they’re going
to lead to violence.

Therefore, that enhancement factor outweighs the mitigating factor that
the [c]ourt has found.

The Defendant argues that the trial court erred in the several ways. First, the trial
court erred by applying enhancement factor (1) due to “the remoteness of [the Defendant’s]
minor criminal offenses.” Second and alternatively, the trial court erred by giving
enhancement factor (1) more weight than mitigating factor (11). According to the
Defendant, the reasoning behind the trial court’s decision to more heavily weigh the
enhancement factor “is flawed due to the fact that by all accounts and evidence [the
Defendant] was not impaired by alcohol or any other substance at the time of the incident in
this cause.” Third, the trial court erred by not finding three additional mitigating factors
applicable in setting the length of the Defendant’s sentence: (2) the Defendant acted under
strong provocation; (3) substantial grounds exist tending to excuse or justify the Defendant’s
criminal conduct, though failing to establish a defense; and (10) the Defendant assisted the
authorities in locating or recovering any property or person involved in the crime. See Tenn.
Code Ann. § 40-35-113(2), (3), (10). The State argues that the record supports the
application of enhancement factor (1) based upon the Defendant’s multiple prior convictions
for public intoxication and one prior conviction for possession of a weapon with the intent
to go armed. In regard to factors for mitigation, the State submits that, “[a]lthough the
[D]efendant asked the trial court to consider the other mitigating factors, the trial court, in
its discretion, chose not to apply them in this case.” Because the trial court considered the
relevant advisory factors and imposed a sentence consistent with the purposes and principles
of the Sentencing Act, the State asks us to affirm the sentence.

Given the facts of this case, we conclude that enhancement factor (1) was properly
applied given that the Defendant has previous convictions, albeit misdemeanors, which

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indicate a history of similar behavior. See, e.g., State v. Johnny Robinson, No.
02C01-9505-CC-00126, 1996 WL 89419, at *2 (Tenn. Crim. App. Feb. 29, 1996) (defendant
had no prior felony convictions, but did have at least two convictions for driving under the
influence, two convictions for driving with a revoked license, and three convictions for
public intoxication, which were similar to convictions at issue; therefore, the trial court, was
entitled to give considerable weight to the factor in assessing the length of the vehicular
assault sentence). In its sentencing determination, the trial court did consider the mitigating
factors espoused by the Defendant but found only one factor applicable to the Defendant.
The weight to be given the various factors is within the broad discretion afforded our trial
courts. We conclude that the trial court did not err or abuse its discretion in setting the
Defendant’s sentence at 18 years.

CONCLUSION
For the reasons articulated above, we affirm the Defendant’s conviction and sentence
for second degree murder.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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