State of Tennessee v. Jamie Jones

06/09/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. JAMIE JONES

Appeal from the Criminal Court for Shelby County
No. 13-04061 Lee V. Coffee, Judge

No. W2016-00491-CCA-R3-CD

The defendant, Jamie Jones, appeals his Shelby County Criminal Court jury convictions
of felony murder and aggravated child abuse, claiming that the trial court erred by
denying his motion to recuse, by permitting the State to amend the indictment, by
admitting certain evidence at trial, and that the cumulative effects of these errors
prevented him from receiving a fair trial. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Mark Mesler (on appeal), and André C. Wharton and Alexander Wharton (at trial),
Memphis, Tennessee, for the appellant, Jamie Jones.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and
Eric Christensen, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

In August 2013, the Shelby County Grand Jury charged the defendant with
alternative counts of felony murder, one count of aggravated child abuse, and one count
of aggravated child neglect, arising out of the death of the victim, the defendant’s three-
year-old son, L.S.1 The trial court conducted a jury trial in August 2015.

1
As is the policy of this court, we refer to minors by their initials.
 The State’s proof at trial showed that the victim’s mother, P.S.2, was
fourteen years of age when the victim was born on October 4, 2009. From the time of his
birth until December 26, 2012, the victim resided with P.S., his grandmother, R.S., and
his aunt, C.S., in Hernando, Mississippi. According to C.S., the defendant, who resided
in Memphis, would see the victim “periodically.”

On December 25, 2012, the victim spent the entire day with his maternal
family, and R.S. testified that he was “[h]ealthy” and “a happy little three-year-old.” C.S.
stated that the victim had no bruises, marks, or abrasions on his body when he fell asleep
in her room that night.

When C.S. awoke the next morning, the victim and P.S. were gone. P.S.
testified that the defendant had arrived at her residence early on the morning of December
26 and that she and the victim had left with the defendant while the rest of the family was
still asleep. P.S. let the victim return to the defendant’s residence for the next several
days.

On January 1, the defendant arrived at the home of P.S.’s friend, Christina,
with whom P.S. had been staying. When the victim got out of the defendant’s car, P.S.
noticed that the victim had a bruise on his forehead, and the defendant explained that one
of his daughters had pushed the victim down some stairs. Shortly thereafter, C.S. arrived
at Christina’s house. C.S. observed the victim wearing only a diaper and noticed that the
victim had a knot on his forehead just above his left eye. C.S. saw no other marks or
bruises on the victim’s torso, back, arms, or legs, but she did notice that the victim’s lips
were “very chapped” and that he had a small bruise on the inside of his lip. C.S. also
believed that the victim appeared to be malnourished.

C.S. returned home and reported what she had seen to R.S. and her brother.
C.S. and R.S. then returned to the residence where the victim was staying, but P.S.
informed them that the victim was not there. C.S. and R.S. eventually located the victim
at the home of the defendant’s sister, where they found the victim dressed in girls’
clothing because, as P.S. explained, he had defecated in his clothing earlier. Through the
testimony of C.S., the State introduced into evidence a photograph taken of the victim at
that time, which appeared to show a fairly large bruise or knot on the victim’s forehead
above his left eye. R.S. called the police, and both police officers and a social worker
arrived at the house sometime later. After C.S. and R.S. had spoken with the police
officers, they returned home without the victim. They never saw the victim alive again.

P.S. testified that, after her mother and sister had gone home, she took the
2
To protect the anonymity of the minor victim, we will refer to his maternal relatives by their
initials as well.
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victim to the hospital, at the direction of the social worker, to undergo a Computerized
Axial Tomography (“CAT”) scan. Following the CAT scan, the victim left the hospital
with P.S. and the defendant, and the defendant eventually took the victim home with him
while P.S. returned to Christina’s residence. On January 8, P.S. took the victim to the
Department of Children’s Services (“DCS”). At that time, P.S. noticed that the victim
had “little fingernail scratches on his face” that appeared to have been made by a child,
and the bruise on his forehead was still present. Following the DCS meeting, the victim
returned home with the defendant.

On January 14, the defendant’s mother arrived at Christina’s house; she
was crying and told P.S. that they needed to go to the hospital because the victim had
fallen “down the stairs” and was unresponsive. Shortly thereafter, C.S. received a call
that the victim was unresponsive and had been taken to Le Bonheur Children’s Hospital
(“Le Bonheur”). Before C.S. made it to the hospital, P.S. called to inform her that the
victim had died.

Matthew Balmut, a registered nurse in the emergency department at Le
Bonheur, testified as an expert in the field of emergency room nursing. Mr. Balmut was
working as the trauma nurse on January 14 when the victim arrived at the hospital shortly
before 1:00 p.m.. Someone was performing cardiopulmonary resuscitation (“CPR”) on
the victim when Mr. Balmut first encountered him in the hospital lobby. The victim was
transferred to a stretcher, and the nurse who had been performing CPR on the victim
climbed onto the stretcher with the victim and continued CPR all the way to the
emergency department. Mr. Balmut testified that from the time he first encountered the
victim until the victim’s death, the victim never had a heart rate and never breathed on his
own. All attempts to resuscitate the victim failed, and the victim was pronounced dead at
1:34 p.m.

For close to three hours after the victim’s death, Mr. Balmut remained with
the body and examined the victim from “head to toe.” Mr. Balmut described the victim’s
injuries:

[I]n five and a half years I’ve never – this is, by far, the worst
set of injuries I’ve ever seen, by orders of magnitude worse
than anything I’ve ever seen. I saw present, essentially, from
head to toe, everything from his feet to his hands. His
scrotum was bruised. He had what looked to me like burns
across his head that looked like a friction burn, like when you
get a carpet burn on your knee when you’re a kid.

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When asked if the victim’s injuries could have been caused by a fall down a set of eight
stairs, Mr. Balmut responded as follows:

No, sir. Impossible. I guess anything is possible, but I
don’t see any way at all that these injuries could be caused by
any number of falls of any height whatsoever. I’ve seen kids
that have jumped off of bunk beds. I’ve seen kids that have
come off of second, third floors of apartment buildings. I’ve
seen kids that were ejected from a moving vehicle on the
interstate and tumbled down a highway for a hundred-plus
feet, and none of them had injuries nearly as severe – nothing
near as severe as the injuries that he came in with.

Mr. Balmut also recalled that the victim “had maybe [50] puncture wounds on his lower
abdomen, pelvis, flank area that looked like they had ink, like – almost like if you just
took a ballpoint pen and just sat there and just – and like stabbed somebody with it.” Mr.
Balmut denied that the victim’s bruises were the result of resuscitative efforts. Mr.
Balmut testified that the victim’s injuries were “the worst thing [he’d] ever seen in years
of working” at the hospital and opined that the injuries were the result of child abuse.

Doctor Camilla Forsythe, a pediatric emergency physician at Le Bonheur,
testified as an expert witness in the area of pediatrics and pediatric emergency medicine.
Immediately upon seeing the victim on January 14, Doctor Forsythe knew that he “was a
victim of trauma” based on “the distribution of wounds on the face and on the
extremities.” Doctor Forsythe noted that the victim, who was in full cardiac arrest when
he arrived at the hospital, had “some form of burn on his face” along with “extensive”
bruising on his face, his trunk, and his extremities. Doctor Forsythe learned from a social
worker and from the defendant that the victim had allegedly “fallen down the stairs”
earlier in the day and that the defendant had brought him to the hospital “to have him
checked out.” Doctor Forsythe had “never, ever seen a child fall down even a flight of
stairs with the extent of bruising that” the victim had, recalling that the victim even “had
a bruise on the tip of his penis.”

When the victim was brought to the emergency department from the
hospital lobby, his body temperature was significantly lower than average, which
suggested to Doctor Forsythe that the victim’s circulation “had paused for a period of
time that was longer than just getting from” the hospital lobby to the emergency
department. Taking both his low body temperature and low lactic acid levels into
account, Doctor Forsythe opined that the victim had had poor circulation for over an
hour. In addition, the victim had no reaction to pain stimuli, no gag response, and his

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pupils were fixed and dilated. Doctor Forsythe opined that the victim died “of
nonaccidental trauma” as the result of a “beating.”

When Doctor Forsythe informed the defendant and P.S. that the victim had
died, P.S. was “extremely upset,” but the defendant said nothing. When Memphis Police
Department (“MPD”) Officer Michael Tippett informed the defendant that he would be
taking him from the hospital to the police department for an interview, the defendant was
“emotionless.”

The defendant’s wife, Teairra Jones, recalled seeing “three bumps” on the
victim’s head around January 1 and stated that the defendant had told her that the victim
had fallen down the stairs. On the morning of January 14, the defendant drove Mrs.
Jones to work, and he then returned home to watch the victim and his two young
daughters. Shortly after noon, the defendant called Mrs. Jones:

He told me that [the victim] had fallen and that he
couldn’t get him to respond. He did take him a bath, and he
laid him down, but he couldn’t get – when he fallen, he took
him a bath, and when he laid him down, he couldn’t get him
to wake up.

I was like, “Well, Jamie,” I was, like, “Get him to the
hospital.” And he was, like, “Okay, I’m going to have to take
him to the hospital.”

Mrs. Jones asked a co-worker to drive her to the hospital, and while en route, she spotted
the defendant’s car and flagged him down. She then got into the defendant’s vehicle and
saw the victim, who was “laying there” and “kind of making a little noise.” The victim’s
eyes were closed, and Mrs. Jones was unable to tell whether the victim was breathing or
had a pulse. According to Mrs. Jones, the defendant began “vomiting everywhere” when
the doctor informed them that the victim had died. Mrs. Jones confirmed that the victim
was “fine” when she left for work on the morning of January 14, and, with respect to
post-mortem photographs of the victim, she testified that the victim had multiple bruises
that she had not seen earlier in the day.

MPD Crime Scene Investigator J.R. Rector photographed the defendant’s
residence and testified that the exterior of the defendant’s apartment complex had eight
steps leading to a landing, followed by eight additional steps leading to the defendant’s
second-floor, two-story apartment. Photographs of the apartment’s interior revealed what
appeared to be fecal matter smeared on a hallway wall leading to the downstairs
bathroom and an indentation on the wall opposite the fecal matter. On the second floor
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of the apartment, Officer Rector photographed a blue towel located in the hallway floor
just outside the upstairs bathroom, and he stated that “the towel and the floor beneath it
had been soiled with fecal matter.” Officer Rector testified that the blue towel was wet
when he collected it on January 14. A photograph of the apartment’s interior staircase
depicted at least nine carpeted stairs.

Doctor Karen Chancellor, Chief Medical Examiner for Shelby County,
performed the victim’s autopsy and testified as an expert witness in the field of forensic
pathology. Through Doctor Chancellor’s testimony, the State introduced into evidence
41 photographs depicting the following injuries to the victim’s body: bruising on the back
of his head; bruising and abrasions on the top of his head; bruising on the right side of his
head; a bruise on his left cheek; an abrasion and a small scratch around his left ear;
multiple areas on the victim’s forehead, nose, upper lip, chin, and below his right eye
where the “top layer of the skin has been removed” likely due to a “burn or chemical type
burn”; a half-inch scratch or abrasion on his lower right side of his face; bruising and a
laceration on the inside of the victim’s lower lip; a large abrasion underneath the victim’s
chin; a large bruised area on the right side of the victim’s neck; multiple scratches on the
back of the victim’s neck; a two-inch bruise on the back of the victim’s right shoulder;
multiple bruises on the back of the victim’s left shoulder; a large, rectangular area of
bruising just below the right side of the victim’s ribcage “which could [have] be[en]
caused by a part of a shoe” as well as multiple smaller bruises on the right side of the
victim’s torso; several smaller bruises on the left side of the victim’s torso; multiple
bruises extending from the victim’s right shoulder to the upper arm to the forearm to the
hand; multiple bruises extending from the victim’s left shoulder to his upper arm to his
forearm, as well as scratches and abrasions on his left arm; “large areas of bruising” on
both the right and left sides of the victim’s back, in addition to scratches on his back; the
buttocks and back of the upper thigh area, which was “just one large area of bruising”;
two bruises on the back of the victim’s right knee; bruising on both of the victim’s inner
thighs; bruising on the victim’s upper right thigh; bruising on the tip of the victim’s
penis; bruising on both of the victim’s lower legs; multiple bruises on the victim’s lower
right quadrant; a large area of bruising on the victim’s right hip; “tiny abrasions” on the
victim’s right hip which would have been caused by a “blunt object”; three lacerations to
the victim’s liver “caused by blunt force of the abdomen” and which led to internal
bleeding; severe injuries to the victim’s adrenal glands, which are located above the
kidneys and are “situated deep inside the body” and which injuries resulted in the right
adrenal gland, located just behind the liver, being torn into two pieces; and hemorrhaging
of the bowel mesentery.

Doctor Chancellor estimated the victim’s total blood loss due to internal
bleeding to be more than 25 percent of the total amount of blood in his body. With
respect to the large, rectangular bruise below the victim’s right ribcage at the site of his
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liver, Doctor Chancellor opined that the amount of damage caused to the liver and right
adrenal gland must have been caused by “[a] great deal of force” that could not have
occurred from the victim’s falling down a flight of stairs, nor could the victim’s facial
burns or penis injury have been caused by a fall. Doctor Chancellor testified that the
victim’s extensive injuries were not accidental in nature, and she estimated that the victim
had a minimum of 116 bruises on his body. Doctor Chancellor clarified that she “did not
find a difference in the ages of the injuries” to the victim’s body, explaining that her
review of the bruises under a microscope revealed “fresh hemorrhage” indicating that all
bruises were “of a similar age.”

Doctor Chancellor opined that the victim’s death was caused by multiple
blunt force trauma and that the manner of death was homicide.

MPD Sergeant Mundy Quinn interviewed the defendant on the afternoon of
January 14. When Sergeant Quinn entered the interview room, the defendant was asleep
with his head on the table. Sergeant Quinn provided the defendant with Miranda
warnings, and the defendant executed a written waiver of his constitutional rights. The
defendant told Sergeant Quinn that he had driven Mrs. Jones to work that morning and
that he had then returned to his residence and prepared breakfast for his daughters and the
victim. At some point, the defendant was helping one of his daughters, and he told the
victim “to go ahead and go down to the car.” Shortly thereafter, he heard the victim
crying, and the defendant discovered the victim “at the bottom of the steps with blood all
over him.” The defendant then corrected himself, stating that the victim was not crying,
and that, instead, the victim was unconscious but began to cry when the defendant picked
him up. The defendant explained that he brought the victim upstairs to give him a bath
because he had defecated on himself. Following the bath, the defendant realized that the
victim “wasn’t acting like himself,” so he decided to take him to the hospital. When
Sergeant Quinn asked the defendant why he had not called for medical assistance, the
defendant responded that “he didn’t think about it.” The defendant also explained that he
did not seek help from a neighbor because, in Memphis, “you don’t knock on someone’s
door.” Sergeant Quinn testified that the defendant provided this narrative in a “carefree”
manner, devoid of emotion. The defendant never mentioned putting the victim down for
a nap.

The defendant told Sergeant Quinn that, while en route to Le Bonheur, he
“stopped on South Parkway and called his wife and mother.” The defendant insisted that
the victim was talking and “saying, ‘Da-Da’” during the ride to the hospital.

Sergeant Quinn confronted the defendant with the extent of the victim’s
injuries, showing him photographs of the victim’s facial injuries, as well as bruising to
the front and rear torso, and asking if any of the injuries had occurred on a prior occasion.
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The defendant insisted that all of the victim’s injuries had occurred on January 14.
Sergeant Quinn testified that the rectangular bruising on the right side of the victim’s
torso showed a specific pattern that was consistent with the athletic shoes the defendant
was wearing. Sergeant Quinn also stated that “[t]here was no blood found on the stairs or
the platform where [the defendant] said” he found the victim covered in blood.

With respect to discrepancies in the defendant’s statements, Sergeant Quinn
recalled that the defendant, in his oral statement, claimed that he had called his wife and
met her at a gas station on South Parkway but that in his written statement, the defendant
stated that he had called his wife from a gas station at Raines and Millbranch before
meeting her on South Parkway. In addition, the defendant told Sergeant Quinn in his oral
interview that he had failed to call 9-1-1 because it did not occur to him, but in his written
statement, the defendant claimed that he did not call for emergency services because he
did not have a telephone. Sergeant Quinn noted that the defendant had provided a
telephone number at the outset of his interview.

With this evidence, the State rested. Following the trial court’s denial of
the defendant’s motion for judgments of acquittal and a Momon colloquy, the defendant
elected to testify.

The 28-year-old defendant testified that, prior to December 26, 2012, he
had custody of the victim “on occasion[],” stating that a dispute between R.S. and him
resulted in the necessity of his visiting the victim at R.S.’s residence. The victim began
staying with him on December 26, and he had primary custody of the victim until the day
he died. According to the defendant, he drove Mrs. Jones to work on the morning of
January 14, and their two daughters, who were ages three and one at the time, and the
victim accompanied them. The foursome then returned to the apartment, and the
defendant was preparing to take all of the children to meet P.S. at 10:30. While the
defendant was getting the children ready, the one-year-old told the defendant that the
victim had defecated on himself, and the defendant described what happened next:

[S]o I got upset and told [the victim] that I was going to
discipline him, because he know better.

So, I ended up taking [the victim’s] clothes off, and I
grabbed the blue towel that they displayed, and I cleaned him.
I told my oldest daughter to go get [her] belt. . . . And [she]
brought the black belt to me, and after I finished cleaning [the
victim], I struck him across the back twice, and [the victim]
ran out of the bathroom.

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 As [the victim] was running, [the victim] hit his right
shoulder on the wall coming out of the bathroom. As he got
up, he ran into the master bedroom. And he ran into the
master bedroom, and he rolled across our bed – our bed, and I
struck him three or maybe four more times.

The defendant clarified that the victim had not had a bath yet and that he was naked. The
defendant then continued:

I’m not sure if that’s where [the victim’s] penis was
injured or not. Honestly, I do not, I don’t remember seeing
[the victim’s] penis. But if it happened, that’s where it
happened at. [The victim] got – he rolled out of bed, and to
this day, I don’t know if [the victim] thinks that I was – I
don’t know if he think I was playing with him, or if he
thought that – you know, to this day, I just don’t – I don’t
know what he was thinking, you know.

And he was smiling at me, but he was crying, also, at
the same time, and I’m chasing him, and he ran out of the
room, and he fell down the stairs in the house, and I don’t
know what caused [the victim] to fall. I don’t know. To this
day, I still don’t know. And when he made it to the bottom of
the stairs, [the victim’s] face was bruised really bad, and I
chased him.

Then, when I got down stairs, he thinking that I was
still chasing him, but, actually, I was trying to see what was
wrong with [him], and [he] ended up going in my downstairs
bathroom. He’s still naked, you know, and he’s very bruised
up.

And I went to attend him, but I didn’t know [the
victim] had defecated on himself. In the pictures that the
State showed to you about the downstairs bathroom where the
defecation was, I ended up picking [the victim] up, not
knowing that he had defecated, and dropped him, and that’s
how the [feces] ended up being on the wall.

....

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 I did not go to the store to make a phone call. I had a
phone. And I called my wife and told my wife that [the
victim] had fell, and he’s not breathing, and I told her that I
tried CPR, not knowing that I don’t know how to do it, and he
wasn’t responding, so I told her I was going to rush him to the
hospital.

She told me to give her five to ten minutes and that she
would meet me at Millbranch and Raines store when I was
headed to the hospital. So, I took [the victim], rushed to clean
him up, rushed to put his clothes back on, and rushed him to
the hospital.

I met my wife on Millbranch and Raines and rushed to
Le Bonheur.

The defendant denied a lack of emotion upon learning of his son’s death,
insisting that he had vomited upon hearing the news and that he had sat on the floor,
rocking back and forth. The defendant also denied that he was asleep when Sergeant
Quinn came in to interview him.

With respect to his police interview, the defendant testified that Sergeant
Quinn was “[v]ery rude, very disrespectful” and that “he kn[e]w for a fact that he [was]
going to get a murder charge put on” the defendant. The defendant explained that he was
dishonest when he gave his statement to Sergeant Quinn because he “didn’t want to lose
[his] life behind a mistake” and that he “tried to cover up [his] wrongdoing at the time”
he gave his statement. The defendant also stated that he was “very lightheaded” and that
his stomach was “weak” during the interview.

The defendant admitted that he had caused the victim’s death, but he
insisted that “those were not [his] intentions that day.” The defendant denied striking the
victim with a shoe or stomping, punching, kicking, stabbing, or biting him.

On cross-examination, the defendant admitted that, in January 2011, the
one-year-old victim had spent the weekend with him and that when the defendant brought
the victim to daycare at the end of the weekend, the victim had abrasions under his eye
and behind his ear and scratches on his arms and legs. As a result of these injuries, the
defendant was no longer welcome in R.S.’s home.

The defendant conceded that his three-year-old daughter had pushed the
victim down four carpeted steps in his apartment on January 1, which caused the bruise
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and knot on the victim’s forehead. The defendant claimed that he had spanked the victim
three to four times on his buttocks and back on January 13 for defecating on himself and
that the spanking had caused some of the bruises on the victim’s body that were
discovered on January 14.

On rebuttal for the State, MPD Lieutenant Alisa Mitchell testified that
when she accompanied Sergeant Quinn into the interview room on January 14, the
defendant’s head was down and he was asleep.

Based on this evidence, the jury convicted the defendant as charged of one
count each of felony murder in the perpetration of aggravated child abuse, felony murder
in the perpetration of aggravated child neglect, aggravated child abuse, and aggravated
child neglect. The trial court merged the felony murder convictions and imposed an
automatic sentence of life imprisonment. Following a sentencing hearing, the trial court
merged the aggravated child neglect conviction with the aggravated child abuse
conviction and imposed a sentence of 25 years to be served at 100 percent service by
operation of law and to be served consecutively to the defendant’s life sentence for an
effective sentence of life plus 25 years. Following the denial of his timely motion for
new trial, the defendant filed a timely notice of appeal.

In this appeal, the defendant contends that the trial court erred by denying
his motion to recuse, by permitting the State to amend the indictment, by admitting
certain evidence at trial, and that the cumulative effects of these errors prevented him
from receiving a fair trial. Although the defendant does not challenge the sufficiency of
the evidence at trial or raise any claims related to his sentencing, we find the evidence
adduced at trial overwhelmingly supports the defendant’s convictions of felony murder,
aggravated child abuse, and aggravated child neglect, and that the record fully supports
the sentence imposed. We will now address each of the defendant’s issues in turn.

I. Motion to Recuse

The defendant first contends that the trial judge erred by denying his
pretrial motion requesting that the trial judge recuse himself from the trial of this case.
We disagree.

When a judge’s impartiality could reasonably be called into question, the
judge should recuse himself. Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App.
1994). Recusal is appropriate “when a person of ordinary prudence in the judge’s
position . . . would find a reasonable basis for questioning the judge’s impartiality.” Id.
As such, a trial judge addressing a motion for recusal must determine whether he or she
has a subjective bias against the defendant and whether the trial judge’s impartiality
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could reasonably be questioned under an objective standard. State v. Connors, 995
S.W.2d 146, 148 (Tenn. Crim. App. 1998). Adverse rulings by a trial court do not,
standing alone, establish judicial bias requiring recusal of the trial court. See, e.g.,
Herrera v. Herrera, 944 S.W.2d 379, 397 (Tenn. Ct. App. 1996). The issue of a trial
judge’s recusal based upon alleged bias or prejudice rests within the sound discretion of
the trial court, and this court will not interfere with the lower court’s discretion unless
clear abuse appears on the face of the record. Owens v. State, 13 S.W.3d 742, 757 (Tenn.
Crim. App. 1999); Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991).

At the defendant’s bond hearing on May 9, 2014, the trial judge found “a
reasonable likelihood of conviction” and noted that the potential of a life sentence plus 25
years “create[d] the inference of a flight risk.” Although the trial judge expressed his
disagreement with the law that requires the setting of a bond in first degree murder cases,
the judge nonetheless followed the law and set the defendant’s bond at 10 million dollars:

And I will put [the defendant] on notice that if he wins
the lottery and somebody goes in and says, I’m posting this
ten million dollar ($10,000,000) bond, the Court will, in fact,
summarily revoke that bond because it is the Court’s intention
that [the defendant] should be detained pending a disposition
of these charges, and I will give [the defendant] the quickest
trial date that the lawyers’ calendars will accommodate
because if [the defendant] says, “Judge Coffee, I’m not guilty
of this,” it is my intention to get this case tried sooner than
later so that [the defendant] can resolve and the State of
Tennessee can resolve these issues that traverse between [the
defendant] and the State. But this Court will set a bond to
cover this indictment at ten million dollars . . . .

Fifteen months later, on the date the defendant’s trial was scheduled to begin on August
17, 2015, the defendant filed a motion to recuse on the basis that the trial judge’s setting
of such a high bond amount, coupled with the judge’s comments of revoking that bond
should the defendant win the lottery, evinced the trial judge’s bias against the defendant.
The trial judge denied the defendant’s motion, finding it to be untimely filed and ruling
that, in any event, he had not prejudged the case and that he would continue “to treat [the
defendant] with the same fairness and the same standard that” he treats all others
appearing before him.

On appeal, the defendant reiterates his claim that the trial judge’s comments
regarding the defendant’s bond amount evince bias against the defendant; that the trial
transcript “is replete with examples of the trial court’s apparent animosity toward”
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defense counsel; and that trial counsel likely chose to delay the filing of the motion to
recuse in the instant case because, one month prior to the defendant’s bond hearing, the
trial judge had denied motions to recuse filed by trial counsel in two unrelated cases.

First, the defendant has waived our consideration of this issue by failing to
raise it in a timely manner. Tennessee Supreme Court Rule 10B provides that a party
seeking recusal or disqualification of a judge “shall do so by a timely filed written
motion,” supported by an affidavit and alleging with specificity the grounds for the
motion. Tenn. Sup. Ct. R. 10B § 1.01. “‘[R]ecusal motions must be filed promptly after
the facts forming the basis for the motion become known, and the failure to assert them in
a timely manner results in a waiver of a party’s right to question a judge’s impartiality.’”
State v. Antonio Freeman, No. M2012-02691-CCA-10B-CD, slip op. at 5-6 (Tenn. Crim.
App., Nashville, Jan. 15, 2013) (quoting Duke v. Duke, 398 S.W.3d 665, 670 (Tenn. Ct.
App. 2012)). That the defendant waited 15 months before seeking recusal on the basis of
the court’s comments at the bond hearing results in waiver of this issue. Furthermore, the
defendant’s suggested reason for the delay – that trial counsel did not wish to seek
recusal so soon after having recusal denied in two unrelated cases – is quite simply an
invalid excuse.

In any event, the judge’s comments regarding his belief that setting bond is
inappropriate in first degree murder cases are not evidence of his bias against the
defendant in particular, and the court explained that the likelihood of a conviction and the
potential for flight guided his decision in setting the bond amount. The defendant’s
statement, without argument or citation to the record, that the record was “replete with
examples of the trial court’s apparent animosity toward” defense counsel avails him
nothing. “Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.” Tenn. R. Ct.
Crim. App. 10(b). Although it is true that the trial court denied, without explanation,
defense counsel’s request to approach the bench during the early testimony of P.S., the
trial court had recently overruled two of defense counsel’s objections to the relevance of
foundational questions, and the defendant fails to explain to this court the basis of his
objection or how the trial court’s denial of counsel’s request to approach prejudiced him
in any way.

In sum, we find no abuse of discretion in the trial court’s denial of the
defendant’s motion to recuse.

II. Amendment of Indictment

Next, the defendant argues that the trial court erred by permitting the State
to amend the indictment to expand the temporal scope by one day. We disagree.
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 “Without the defendant’s consent and before jeopardy attaches, the court
may permit such an amendment if no additional or different offense is charged and no
substantial right of the defendant is prejudiced.” Tenn. R. Crim. P. 7(b)(2). A trial
court’s ruling on a motion to amend an indictment is reviewed for an abuse of discretion.
State v. Kennedy, 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999). “[T]he amendment of
the date in an indictment does not charge the defendant with a new or an additional
crime.” Id. at 284 (citations omitted).

Here, the original indictment charged the defendant with committing the
respective crimes against the victim “between January 1, 2013 and January 15, 2013.”
Two weeks prior to trial, the State moved to amend the temporal scope of all counts of
the indictment by a single day, changing January 1, 2013 to December 31, 2012. The
trial court granted the State’s motion. On the first morning of trial, the defense
challenged the court’s ruling, arguing that the expansion of the temporal scope hindered
their ability to prepare a defense and that the State was using this amendment as “a back
door way of” admitting Tennessee Rule of Evidence 404(b) evidence of the defendant’s
prior bad acts. The State responded that the amendment was not based on any new
information and was made “out of an abundance of caution,” explaining that jurors might
believe that any events which occurred on January 1 would not have been included in the
scope of the indictment because the charging instrument uses the word “between” to
separate the two relevant dates.

The trial court, noting that it had already ruled on this issue, agreed with the
State’s reasoning that the expansion of the temporal scope would avoid any confusion
among jurors as to whether the date of January 1 was actually included within that time
frame. With respect to the defendant’s argument that the State was attempting to
introduce prior bad act evidence through the “back door,” the court ruled that any
evidence of potential prior bad acts would be handled through an appropriate Rule 404(b)
hearing at the relevant time during trial.

Clearly, the State, in seeking to expand the temporal scope of the
indictment by a single day, did not alter the offenses charged, and the defendant was in
no way prejudiced by this amendment. As such, we find no abuse of discretion in the
trial court’s decision to permit the State to amend the indictment.

III. Evidentiary Issues

The defendant next contends that the trial court erred by admitting certain
evidence at trial. Specifically, the defendant argues that the court erred by admitting into
evidence photographs of the victim’s internal organs, by permitting Sergeant Quinn to
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offer lay opinion testimony regarding a shoe print, and by admitting evidence of prior
instances of abuse under Tennessee Rule of Evidence 404(b).

As is pertinent to each of these sub-issues, questions concerning evidentiary
relevance rest within the sound discretion of the trial court, and this court will not
interfere with the exercise of this discretion in the absence of a clear abuse appearing on
the face of the record. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.
Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992). An abuse of discretion occurs when the trial court applies an incorrect legal
standard or reaches a conclusion that is “illogical or unreasonable and causes an injustice
to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing
Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).

Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may be still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.

A. Photographs

“Tennessee courts have consistently followed a policy of liberality in the
admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d
895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The
general rule . . . is that photographs of a murder victim’s body are admissible if they are
‘relevant to the issues on trial, notwithstanding their gruesome and horrifying character.’”
Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Even relevant
photographs may be excluded, however, if their probative value is substantially
outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at
950-51. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.”
See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound
discretion of the trial court and will not be overturned on appeal absent a showing that the
trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011)
(citing Banks, 564 S.W.2d at 949).

Here, the State sought to introduce, through the testimony of Doctor
Chancellor, a number of autopsy photographs depicting the extent of the victim’s injuries.
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During a hearing outside the presence of the jury, the defendant objected to the
admissibility of the six photographs depicting the damage to the victim’s internal organs,
arguing that the gruesome nature of the photographs was intended to “shock” and
“scare[]” the jurors and that the testimony of Doctor Chancellor would sufficiently
establish the victim’s internal injuries without the need to supplement that testimony with
photographs.

The trial court determined that the photographs at issue were relevant to
supplement Doctor Chancellor’s testimony about the extent of the victim’s internal
injuries and were “not particularly horrifying” or “gruesome.” The court further found
that the probative value of the photographs outweighed any danger of unfair prejudice to
the defendant.

Having reviewed the photographs, we conclude that, although graphic, they
are not especially gruesome or horrifying. Indeed, the defendant states on appeal that the
photographs “are completely unrecognizable or identifiable as internal parts of the human
body,” which begs the question of how such photographs could be considered
inflammatory. Accordingly, the probative value of the photographs was not substantially
outweighed by the danger of unfair prejudice. The defendant is not entitled to relief on
this issue.

B. Sergeant Quinn’s Testimony

Lay witnesses may give testimony in the form of an opinion when the
testimony is “(1) rationally based on the perception of the witness and (2) helpful to a
clear understanding of the witness’s testimony or the determination of a fact in issue.”
Tenn. R. Evid. 701(a). This court has previously held that a witness need not be an
expert in “shoe or footprint identification” to testify regarding shoe print analysis because
such testimony would be considered “common knowledge.” State v. Anthony Duran
Hines, No. M2007-00493-CCA-R3-CD, slip op. at 2-3 (Tenn. Crim. App., Nashville,
May 12, 2008); see also State v. Billy Tate, No. E2012-02576-CCA-R3-CD, slip op. at 9-
10 (Tenn. Crim. App., Knoxville, Sept. 27, 2013).

Here, Sergeant Quinn opined that the rectangular bruising on the right side
of the victim’s torso showed a specific pattern that was consistent with the athletic shoes
the defendant was wearing at the time of his interview with Sergeant Quinn. Such
testimony did not run afoul of Rule 701(a), and the trial court did not abuse its discretion
in permitting Sergeant Quinn to offer this lay opinion.

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 C. Evidence of Prior Bad Acts

Generally speaking, “[e]vidence of a person’s character or trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). This rule is subject to certain exceptions, however,
including “evidence of a pertinent trait of character offered by an accused or by the
prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b); State
v. Thacker, 164 S.W.3d 208, 239-40 (Tenn. 2005). To admit such evidence, the rule
specifies four prerequisites:

(1) The court upon request must hold a hearing outside the jury’s
presence;

(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to
be clear and convincing; and

(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

In the instant case, the trial court conducted hearings outside the jury’s
presence to determine the admissibility of evidence regarding both the January 1 incident,
in which the victim was found with a large knot on his forehead, and the 2011 incident, in
which the victim was returned to daycare by the defendant with scratches and abrasions
on his body. With respect to the January 1 incident, the trial court determined that it did
not fall under the purview of Rule 404(b) because the State was not attempting to show
that the defendant had caused the victim’s head injury. Instead, the evidence was offered
both to prove aggravated child neglect and to show that, two weeks prior to his death, the
victim was an otherwise healthy child. With respect to the 2011 incident, the court found
by clear and convincing evidence that the incident had occurred and that the defendant
had opened the door to admission of the evidence by testifying on direct examination
about his “dispute” with R.S. and the necessity of having to visit the victim at R.S.’s
home. The court further found that the 2011 incident provided “contextual background”
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of C.S.’s and R.S.’s concern for the safety of the victim, and it also rebutted the
defendant’s claim that the victim’s injuries were the result of an accident.

In our view, evidence concerning the January 1 incident, including the
photograph of an otherwise happy, healthy victim with a knot on his head, was not
prohibited by Rule 404(b) because it was not offered to show that the defendant had
caused the victim’s injury, but such evidence was properly admitted both as evidence of
aggravated child neglect and to show the state of the victim’s health two weeks prior to
his death. Concerning the 2011 incident, although we do not think much of the
“contextual background” basis for admission, the defendant undoubtedly opened the door
to the introduction of this evidence on cross-examination by mentioning his dispute with
R.S. on direct examination, and the probative value of such evidence to show absence of
a mistake or accident outweighed any prejudicial impact.

Given the trial court’s compliance with the requirements of Rule 404(b), we
find no abuse of discretion in the lower court’s decision to admit the aforementioned
testimony.

IV. Cumulative Error

Finally, the defendant contends that the cumulative effect of the errors at
trial deprived him of the right to a fair trial. Having considered each of the defendant’s
issues on appeal and concluded that the defendant is not entitled to relief for any, we need
not consider the cumulative effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77
(Tenn. 2010) (“To warrant assessment under the cumulative error doctrine, there must
have been more than one actual error committed.”).

Conclusion

The defendant has failed to establish entitlement to relief on any of the
issues presented. Accordingly, the judgments of the trial court are affirmed.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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