State of Tennessee v. John Steven Hernandez

05/15/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 14, 2018 Session

STATE OF TENNESSEE v. JOHN STEVEN HERNANDEZ

Appeal from the Criminal Court for Davidson County
No. 2013-C-2028 Steve Dozier, Judge

No. M2016-02511-CCA-R3-CD
_____________________________

In 2013, a Davidson County jury convicted the Defendant, John Steven Hernandez, of
first degree premeditated murder for a killing that occurred in 1993, for which the trial
court imposed a sentence of life in prison. On appeal, the Defendant contends that the
trial court erred when it: (1) did not dismiss the charge against him based on pre-
indictment delay; (2) did not dismiss the charge against him based on post-indictment
delay; (3) denied his motion to suppress evidence; (4) made several erroneous evidentiary
rulings; and that (5) the evidence is insufficient to sustain his conviction; and that (6) the
Defendant is entitled to a new trial based upon the cumulative effect of the errors. After
review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLEY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

Jeffrey A. DeVasher (on appeal), Georgia Sims and Kevin J. Griffith (at trial), Assistant
Public Defenders, Nashville, Tennessee; Angela L. Bergman and David R. Esquivel (on
appeal), Nashville, Tennessee, for the appellant, John Steven Hernandez.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Stacy L. Rebecca and
Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION
I. Facts

This case arises from the murder of Annis Szekely, which occurred in her home in
East Nashville on March 7, 1993. On July 23, 2013, a Davison County grand jury
indicted the Defendant, who was the estranged husband of the victim’s daughter, for first
degree premeditated murder. The Defendant filed an affidavit of indigence and the trial
court appointed him counsel.

A. Pre-Indictment and Post-Indictment Delay

On April 23, 2014, the Defendant entered a plea of not guilty to the charge against
him, and the trial court set a hearing for May 22, 2014. On January 21, 2015, the State
moved the trial court to reset the case, which at the time of the motion was set for June 8,
2015. On February 6, 2015, the Defendant’s attorney informed the trial court the State
had requested the case be reset and that the Defendant was “not opposed” to the case
being reset. The parties agreed to reset the trial for August 17, 2015.

On August 5, 2015, the Defendant filed a motion seeking a continuance of the trial
because his counsel had learned there was DNA evidence remaining from scrapings taken
from underneath the victim’s fingernails that could be independently tested. The trial
court granted the motion and reset the trial for April 4, 2016.

On February 2, 2016, the Defendant filed a pro se motion asking the trial court to
appoint him as co-counsel because his current counsel had not been responsive. The trial
court denied this motion.

On March 30, 2016, the Defendant filed a motion to dismiss the case for speedy
trial violation or, in the alternative, be granted a continuance. The Defendant noted there
had been a twenty-year delay between the crime and the State’s filing of the indictment,
which he asserted violated his right to due process. The motion stated further that
Defendant’s counsel was still unprepared for trial two years after being appointed, so the
Defendant would have to give up his right to a speedy trial in order to obtain competent
counsel. The motion argued that the pre-indictment delay violated the Defendant’s due
process right and that the post-indictment delay violated his right to a speedy trial. The
State countered that the Defendant had not shown that it had intentionally caused the
delay or that he was prejudiced by the delay.

The parties then referenced a motion that the Defendant’s counsel (“Counsel”), an
assistant public defender, had filed the day before the March 31 hearing. Counsel
acknowledged that even though the Defendant’s trial was scheduled for the following
Monday, she was unsure whether she could be prepared to argue the motion at the present
time. Counsel then discussed the pre-indictment and post-indictment delay, saying that
she considered herself a State actor for purposes of determining whether the Defendant’s
speedy trial rights had been violated. She asserted that her unpreparedness should be
imputed to the State because she was paid by the State, who did not adequately fund her
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office. Insufficient funding caused her caseload to be “excessive” and thus she was
unable to adequately prepare for the Defendant’s trial. She noted the Defendant had
waited nine months before being extradited and had endured a three-year delay. She
further noted that it had been two years since the Defendant had been arraigned. The
Defendant’s counsel noted that there had been “delays on both sides,” and said that while
she had thought she would be prepared for trial, she was not. She further informed the
trial court that her unpreparedness put the Defendant in the untenable position of having
to either waive his right to a speedy trial or, in the alternative, to represent himself.

The Defendant’s counsel asked that the trial court dismiss the indictment or, in the
alternative, release the Defendant on his own recognizance. The Defendant’s counsel
reiterated that it was the Defendant’s desire not to continue the case. He wanted to
proceed, even if it meant moving forward pro se because he had been incarcerated for
more than two years. The State said that it was ready to proceed on the set trial date of
April 4, 2016.

The trial court set a hearing for April 11, 2016, during which it tasked the parties
to present evidence about the pre and post indictment delays.

At the April 11, 2016 hearing, the Defendant’s counsel informed the trial court
that she was prepared to move forward with presenting proof on the pre-indictment delay
but that she needed at least a month to prepare evidence on the post-indictment delay
issue.

The Defendant’s counsel asked that the trial court appoint outside counsel to
litigate the issue of the post-indictment delay. The trial court set a hearing for that
particular issue for May 9, 2016, and the hearing then proceeded on the pre-indictment
delay issue.

1. Pre-Indictment Delay

Glenn Arnold testified that he was an investigator for the Public Defender’s office
and had investigated this case. He said he had visited the police property room on two
occasions, and reviewed and photographed the items displayed to him on both occasions.
Mr. Arnold testified that when he first viewed the evidence in January 2015, some of the
items were stored in plastic bags with tears or holes in them and that some of the bags
were empty. Mr. Arnold agreed that there were a “number” of evidence bags that were
torn, ripped, or damaged in some way. He photographed those bags.

Mr. Arnold testified that he saw two test tubes: a human blood sample and a saliva
sample. The property tag had a different defendant’s name, different incident number,
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and different victim’s name. On his second trip to the property room in April 2016, Mr.
Arnold noticed some of the evidence had been re-bagged. He took additional pictures of
that evidence. Mr. Arnold testified that he never encountered anything that was
identified as the Defendant’s blood.

Mr. Arnold testified that when he viewed the evidence the week before the
hearing, the evidence that included a different defendant’s name and a different victim’s
name was no longer included.

Mr. Arnold testified that several of the witnesses in this case were now deceased.
One of the witnesses was Dr. Charles Harlan, the medical examiner who conducted the
autopsy, and the other was Detective E. J. Bernard, who investigated the case. He also
believed that a civilian witness, Andrew Saicasson, was deceased.

During cross-examination, Mr. Arnold agreed that Mr. Saicasson was one of the
victim’s sons and that he was not in town when the homicide occurred. Mr. Arnold
agreed that Dr. Harlan’s report was contained in the discovery and that another medical
examiner could review the doctor’s findings and testify about the report.

Mr. Arnold agreed that the victim had been found with her hands tied and bound
to a bed with a plastic bag over her head. While he was unsure whether the items missing
from the property room would have been helpful to the defense, he said that it would
have been helpful if the defense could have seen the items law enforcement gathered,
which included chains, straps, a book called “Slave Mistress,” a black mask, a leather
mouth part, clamps, hooking tightener, bullets, and a pistol. Mr. Arnold also agreed that
the Defendant’s DNA had been taken by swab while he was incarcerated in Texas on an
unrelated matter, and sent to Tennessee for testing. The Defendant’s DNA was not taken
from a vial of blood contained in evidence.

Amber Elaine Treat, a private investigator, testified that the Public Defender’s
office hired her to assist in this investigation. She read the discovery report and
investigated potential alibi witnesses. She recounted that the Defendant said he had been
working at Labor Source on March 6 before the murder, so she contacted the owner of
Labor Source, Michael Dodson. She said Mr. Dodson told her he was unable to retrieve
the “punch-in, punch-out” records for 1993 because the computer software only kept
track of payments made and not the time records of his employees. He also said he was
only required to keep time records for seven years, so the Defendant’s time records no
longer existed.

Ms. Treat said she listened to an audio recording of an interview with Kalon

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Radovich, the son of the Defendant’s ex-wife, Victoria Ramsey1, and the grandson of the
victim. Mr. Radovich had found the victim’s body. Ms. Treat said that the statement was
a thirty-seven-minute audio file, but that the audio cut off after the three-minute mark.

Ms. Treat said she traveled to the crime scene in this case. She said the house had
been completely “gutted and remodeled.” In 1993, the house was a divided duplex, with
two families living in the home. At the time of her investigation, the house was a single-
family house and the dividing walls had been removed.

During cross-examination, Ms. Treat acknowledged that the State alleged the
crime occurred on March 7, not March 6, when the Defendant had said he was working.
She said, however, that there were discrepancies in the time frame, and proof the
Defendant was working on March 6 would still have aided the defense because they
could have argued that the murder actually occurred on March 6 while he was working.

The State called Mike Smith, who testified that he was a detective for
Metropolitan Nashville Police Department (“Metro PD”) at the time of this crime in
1993, but had since retired. Detective Smith acted as the lead detective in this
investigation, working with several other investigators. Detective Smith testified that he
was working on March 7, 1993, when he got a call that the victim’s body had been found.
He went to the scene, where he found present two other detectives, Detectives Mann and
Fowler. The detectives had different assignments to document the crime scene.
Detectives Mann and Fowler and Sergeants Moore and McElroy all interviewed
witnesses and the victim’s relatives. Detective Smith said he prepared a report, which he
supplemented for the last time on March 30, 1993.

Detective Smith testified that he took evidence from the property room to the
Tennessee Bureau of Investigations (“TBI”) crime laboratory for testing. Detective
Smith reviewed the file and testified that Detective Larry Flare supplemented the file on
February 3, 1998; Detective Ray Ellum supplemented the file on August 13, 2001;
Detective Terry McElroy, who was deceased at the time of the hearing, supplemented the
file on August 14, 2001; and Detective Lee Freeman supplemented the file on February
24, 2006.

During cross-examination, Detective Smith testified that he was involved in
executing a search warrant at the Defendant’s home on March 8, 1993, at 5:00 a.m.
Detective Smith said that he spoke with Victoria Ramsey later that day on the evening of
March 8, 1993. He also interviewed several witnesses, including Judy Crabtree on March
1
Ms. Treat called the Defendant’s ex-wife “Victoria Hernandez.” The Defendant’s ex-wife testified later, and gave
her name as “Victoria Ramsey.” For clarity, we will refer throughout this opinion to the Defendant’s ex-wife as
“Victoria Ramsey”.
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11, 1993, and Kevin and Pam Bush on March 15, 1993. Detective Smith said that he had
recorded audio from his interview with Ms. Bush. On March 16, 1993, Detective Smith
again spoke with Ms. Ramsey. During that interview, Ms. Ramsey said she had spoken
with the Defendant about how the victim had died. The detective recalled that Ms.
Ramsey had also given him a recording of a phone conversation between Ms. Ramsey
and the Defendant.

Detective Smith testified that the investigation notes revealed that on March 23,
1993, Officer Blackwood told him that the fingertip of a latex glove stuck to Scotch tape
had been found around the victim’s neck. On March 30, Ms. Singleton, the woman with
whom the Defendant lived at the time of this offense, called to inform Detective Smith
about conversations she had had with the Defendant.

Detective Smith said that he wrote a memo to Lieutenant Jay Cobbs on May 6,
1993, informing the lieutenant that the TBI had determined the DNA sample under the
victim’s fingernails was too small for testing.

Detective Smith identified a report from 2001, after he had been reassigned to
another division, which documented discussion with the Kentucky State Police as to
whether Ms. Ramsey would be willing to be wired to speak with the Defendant, who was
then in their custody.

During redirect examination by the State, the detective testified that the evidence
he brought to the crime laboratory did not provide a physical link between the Defendant
and the crime scene.

James Adendall, a detective with the Metro PD cold case unit, testified that his
unit reviewed this case in January 2010. He looked at the evidence, reviewed the
interviews, and attempted to locate witnesses involved in the case. He also resubmitted
some evidence for testing in 2010 and in 2012. Detective Adendall testified that he
located the victim’s fingernail scrapings and sent them to the Orchid Cellmark forensic
laboratory (hereinafter “Cellmark”) in Dallas, Texas for testing. The detective said that
in 2011, Detective Silfress of the Kentucky State Police informed him that he was
working on a case in Kentucky involving the Defendant and that he had DNA from a
water bottle used by the Defendant. Also around that time, Detective Adendall sent the
clear tape and latex glove evidence to Cellmark for testing. In February 2012, Detective
Adendall obtained a search warrant and obtained a sample of the Defendant’s DNA by
travelling to Texas, where the Defendant was incarcerated on an unrelated case, and
executing the warrant for the Defendant’s DNA. Detective Adendall then submitted the
sample to Cellmark for analysis.

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 Detective Adendall testified that in June 2013, he received results from Cellmark
that physically linked the Defendant to the victim’s murder, and he presented the case to
the Davidson County grand jury. The Defendant was indicted in 2013. The Defendant
was extradited from Texas to face charges in Tennessee on April 4, 2014.

During cross-examination, Detective Adendall testified that his unit investigated
unsolved cases at least a year old. He agreed that when he received the case file in
January 2010, it was well-documented. Detective Adendall agreed the interview with
Kaylin Radovich ended abruptly because the recording equipment malfunctioned. He
also agreed that many of the interviews were difficult to hear because of the equipment in
use at the time.

Detective Adendall said that as part of his investigation, he re-interviewed Shirley
Singleton, Victoria Ramsey, and two other witnesses.

Detective Adendall testified that he originally sent items to the TBI to be tested,
but the TBI informed him that it did not have the technology to test those items and that
they would need to be tested privately. He then contacted Cellmark and sent the items to
them for testing. He sent them swabs from the victim, nail clippings, and the Defendant’s
watch. In September 2010, Ms. Leile at Cellmark advised him that a male’s DNA had
been found under the victim’s fingernails. In October 2010, he learned that law
enforcement did not have a known DNA profile for the Defendant. Detective Adendall
said he then contacted the Kentucky State Police, who responded in February 2011
saying that they had a DNA profile for the Defendant. Cellmark, however, needed an
actual sample from the Defendant, not just the DNA profile, so Detective Adendall met
with the Kentucky State Police who gave him a cup and water bottle used by the
Defendant. He sent those items to Cellmark in April 2011. In May 2011 Cellmark did
testing of the nail clippings and the water bottle and prepared a report.

Detective Adendall said that, in July 2011, he asked Cellmark if they could test the
latex glove tip and the clear tape. He received a report on the analysis of these items at
the end of October 2011.

The detective said that in January 2012, he reviewed and summarized a taped
phone conversation between the Defendant and Ms. Ramsey. Later that month, he sought
a search warrant to obtain the Defendant’s DNA, who was then in Texas. He went to
Texas, collected a buccal swab with the Defendant’s DNA and subsequently sent the
sample to Cellmark. Ms. Leile emailed him a final report on February 28, 2012. The
report included the Defendant as a possible contributor of the DNA found under the
victim’s fingernails. Shortly thereafter, Detective Adendall gave a copy of this report to
Tom Thurman with the District Attorney’s Office. On March 14, 2013, the detective
7
received an email from Ms. Leile asking permission to discuss the case with Mr.
Thurman. He granted her permission and, in July 2013, forwarded witnesses names and
phone numbers to the District Attorney’s Office. The Defendant was indicted in June or
July 2013.

Detective Adendall testified that in January 2015 he contacted Cellmark to ask if it
had returned the evidence to the property room, and discovered the evidence had not yet
been returned. At the State’s instruction he asked Cellmark to hold the property for
potential further testing. In May 2015, he contacted Ms. Leile to inform her that he was
sending her buccal swabs from Mr. Radovich, the victim’s grandson, for comparison.
Cellmark returned the property to the property room in August 2015.

2. Post-Indictment Delay

The parties reconvened on May 9, 2016, and presented evidence regarding the
post-indictment delay. Counsel informed the trial court that she was still not ready to
proceed on the issue of whether the Public Defender’s Office’s underfunding and
understaffing denied the Defendant his right to a speedy trial. She said she was
attempting to secure outside counsel to present the issue properly. Counsel argued that,
while the trial court could set a trial date, she could not and would not guarantee she
would be ready for trial.

The State responded and asked that the Public Defender’s Office be removed from
the case because they were going to put the case off indefinitely. The State asked the trial
court to appoint an attorney that could prepare the case and proceed with a trial. Defense
counsel responded that the Defendant was entitled to consistent, effective representation
and a speedy trial, which were in conflict by the caseload at the Public Defender’s Office.

On May 25, 2016, the parties reconvened and Defendant’s counsel informed the
trial court that it had likely secured an outside firm to present the issue regarding the post-
indictment delay. The State again asked that the Public Defender’s Office be removed
from the case so that they could set a trial date.

On June 1, 2016, at another hearing, the Defendant’s counsel informed the trial
court that the law firm of Bass, Berry and Sims had agreed to take the case pro bono for
the purpose of presenting evidence about the post-indictment delay. The Defendant’s
counsel then said that she could be ready for trial before late November 2016. The
parties agreed to a hearing date and to a trial date of October 17, 2016. The trial date was
later moved to September 19, 2016.

The State expressed concern that, if the trial court allowed the assistant public
8
defender’s argument to stand, every public defender could continue a case for long
enough to have the case dismissed. The State asked for supplemental discovery to cover
eight points so that it could adequately discuss whether a first degree murder indictment
should be dismissed because of the workload of the Public Defender’s Office. The State
opined that the Public Defender’s Office should not be successful in their argument when
they had not informed the trial court before or since that they could not take additional
cases until they resolved some of their pending cases. The State wanted the time records
for the attorneys at the Public Defender’s Office. Ms. Bergman, the Bass Barry and Sims
attorney representing the Defendant on this limited matter (hereinafter “Private
Counsel”), posited that the State was not entitled to the time records or any of the other
requested information. She further stated that the information relied upon by her expert
had been provided as an exhibit.

The trial court asked Private Counsel if the expert had looked at the time sheets of
every public defender who had worked on the case during the year-and-one-half that they
represented the Defendant. The expert had not viewed their time sheets but had asked the
public defenders about their schedules. She said that the expert had not viewed the
schedules for paid leave time or vacation leave or the number and nature of out of office
activities undertaken by the assistant public defenders during normal office hours.
Private Counsel further noted that the State was the opposing party on all cases handled
by the Public Defender’s Office and could compile its own list of cases.

The trial court asked Private Counsel to have the expert share his notes with the
State before the hearing. The trial court ordered the Public Defender’s Office to provide
the time records related to the Defendant’s case and ordered that those be filed under seal.

When the parties reconvened on September 1, 2016, Private Counsel gave opening
remarks summarizing the Defendant’s position on this matter. She said that he was
indicted July 23, 2013, and the case was currently set for trial September 19, 2016.
Private Counsel said that during the three-year delay, the Defendant was forced to choose
between his constitutional right to a speedy trial and his constitutional right to effective
assistance of counsel. Private Counsel opined that the factors considered in determining
whether the Defendant’s speedy trial rights had been violated weighed in favor of the
Defendant. Private Counsel acknowledged that delays requested by defense counsel are
generally attributable to the defendant, but that the United States Supreme Court had
made an exception to that rule when there is a systemic breakdown of the public defense.
Private Counsel said that the Defendant had a good relationship with his public defenders
but their workloads inhibited their ability to prepare for his trial. The State disagreed
with Private Counsel on each of these arguments, saying that the delay was not
unreasonable given the severity of the offense and the fact that the Defendant’s counsel
asked for many of the delays. The State further posited that there was not a systemic
9
breakdown of the Public Defender’s Office.

Carol Dawn Deaner, the Public Defender for Metro Nashville Davidson County
whose mission is to serve citizens of Davison County who have been charged with a
crime and cannot afford an attorney, testified that tension existed within her office
because her office had more work than they had time to complete. Currently on staff,
Ms. Deaner had forty-eight full-time employees, with a forty-ninth position unfilled
because there was no funding. Ms. Deaner said that two of her employees were funded
by the county and ran an education rights program, so they did not have active caseloads,
leaving forty-six employees. Two other employees were “half-time” employees, leaving
forty-four and a half attorney positions. She no longer carried a full-active caseload. Ms.
Deaner testified that twenty-one of the attorneys in her office had less than five years’
experience, which meant they required more supervision and did not have the skills or
experience to handle more serious cases.

Ms. Deaner said her office had seven investigators and that they were currently
attempting to hire two more investigators to fill vacancies. She said her office also had
thirteen legal secretaries and several other paralegal-type support staff, totaling sixteen
support staff. Ms. Deaner testified her office did not have sufficient support staff or
attorneys to service every client, noting that her office closed 30,000 cases annually. She
said there was simply not enough time to provide what she termed “reasonably effective
representation” to all clients based upon her office’s staffing numbers. Ms. Deaner
testified she could not hire more attorneys because she did not have funding, which came
from both Metropolitan Government of Nashville, Davidson County (“Metro”)
government and the State of Tennessee. Ms. Deaner presented evidence showing that the
State had funded each of the other districts at significantly increased rates since 1993, but
that funding for the 20th judicial district containing the city of Nashville remained
relatively “flat,” which she opined was contrary to the then-enacted Tennessee Code
Annotated section 8-14-210.

Ms. Deaner testified about the actions she took in an attempt to increase her
office’s funding. In 2012, Ms. Deaner attempted to increase awareness within the
Governor’s office and the Department of Finance and Administration (“F&A”), as well
as the Davidson County delegation to the Legislature, about this issue. She met with
David Thurman, the head of F&A, who was the budget director at the time, along with
others to inform them that she did not think that they had been “collating our annual
increases consistent with the statutory language.” She asked for a two million dollar
increase, which was the amount that would be equal to the percentage increase in the
other judicial districts. Ms. Deaner identified a letter she wrote to Mr. Thurman that
explained her calculations and provided numerous documents to support the need for
additional funding. As a result, Mr. Thurman and F&A began a study (“Spangenberg
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Study”) and made a request to Davidson County for additional information.

The Spangenberg Study progressed through the end of 2012 and the beginning of
2013. The Governor’s office then issued a short letter characterizing the Public
Defender’s Office position as an argument that the State’s funding for Davidson County
Public Defender’s Office had not kept pace with inflation. The letter indicated that the
Governor’s office agreed with this contention and appropriated an additional $500,000
for the Public Defender’s office in Davidson County. The letter also recommended a
change in the statute. The statute was, in fact, later amended to reflect that the increase or
decrease in the Davidson County Public Defender’s Office’s funding should reflect
inflation, a relationship which Ms. Deaner observed had no relevance to her office’s
caseload.

Ms. Deaner further explained that in addition to her office’s funding from the
State, it also received funding from Metro. She offered evidence showing the share of
her office’s budget that Metro had increased over the last twenty-three years. In 1993,
half of her office’s budget was paid by the State and half was paid by Metro. By 2011,
twenty-five percent of her budget was paid by the State and seventy-five percent was paid
by Metro. The increased funding from Metro did not, however, make up for stagnant
funding from the State. She explained that, by statute, in districts where local
governments provided funding for their District Attorney General’s Office (“DA’s
Office”), when the district increased their funding to the DA’s office, the district also had
to increase the funding to the Public Defender’s Office in an amount at least seventy-five
percent of the increase to the DA’s Office. The statute was designed to “keep
equilibrium” between the DA’s office and the Public Defender’s office.

Ms. Deaner then discussed her office’s workload using information from their case
management system, JIS. She noted that, in 2014, her office closed 29,617 cases and in
2015, it closed 29,834. The data compiled, however, relied upon human entry from her
staff, which she said often fell by the wayside when her staff were “running tight for
time.” She said the database did a reasonably good job in keeping her office’s annual
numbers, but she discussed concerns about the accuracy of the tracking of caseloads.

Ms. Deaner testified that the legislature had commissioned a study to determine
how many cases any one state attorney could handle, which served as the basis of the
Spangenberg Study caseload standards. That study found that no public defender should
handle more than 500 misdemeanor cases in a year, if that is the only type of case
handled. It further found that a public defender should not handle more than 233 felony
cases. She noted, however, that the study was done in 1999, when the practice of
criminal defense was significantly different in that there were not nearly as many expert
issues. Further, these numbers were the highest in the country. Ms. Deaner said that, on
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average, in her office the lawyers were handling well more than the Spangenberg Study
standards said that they should.

Ms. Deaner testified that the Spangenberg Study found that no public defender
should handle more than five first degree murder cases in a year and that, if they had five
such cases, they should have no other cases. In 2014, her office closed twenty-two first
degree murder cases, meaning that 4.4 of her twenty-two attorneys should have handled
only those twenty-two cases. To be in line with the Spangenberg Study, her office would
need sixty-seven attorneys, or 22.5 more than the office actually had. Ms. Deaner said
that in 2015, her office would have needed 73.8 attorneys, roughly thirty more than she
had, to comply with the Spangenberg findings.

Ms. Deaner testified that, while there were no specific strategies she used to help
her attorneys handle a caseload beyond the Spangenberg Study guidelines, her office did
encourage “meet an[d] plea” practices when applicable. That included resolving a case
within a few hours of meeting a client through a plea bargain agreement. Additionally,
she encouraged a “tag team” approach in general sessions where the lawyer covering the
docket that day would represent any public defender clients facing charges that day. She
noted that the impact of this type of representation was that it was in some ways
ineffective, because that same lawyer did not follow the case and a new lawyer had to get
acquainted with it. It also caused “the ball” to “get[] drop[ped] a lot easier,” making it
harder to meet performance standards, because there was less time for investigation, to
conduct appropriate interviews, or do any legal research.

Ms. Deaner testified that, recently, she had tried to implement some practices to
improve their performance standards, such as implementing workload controls and
workload caps on the jail docket so that lawyers who were getting new cases each
morning were not getting more than ten new misdemeanor cases (class A), more than
eight felony cases, or more than six domestic violence cases in any one day. Ms. Deaner
said that her office continued to represent every individual charged with a class B or C
misdemeanor, except in the cases of conflicts, and this could be an additional fifteen to
twenty-five clients per docket. Each case required the attorney to meet with the
prosecuting attorney, communicate with the client, convey any offer and discuss legal
options and decide how to proceed, and then return to the clerk’s office to convey the
information. Ms. Deaner said that her attorneys should do more, including interviewing
their clients, trying to obtain releases for those individuals if possible, and investigating
legal issues.

Ms. Deaner testified that her office began declining cases in 2014 as having a
“workload conflict.” In the first twelve-month period, her office declined 2,000 cases.
Her office declined approximately 2,300 cases the following year in general sessions
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court alone. She said her office was not keeping track of how many cases it had declined
in criminal court on the same basis. In cases her office declined to take, the private bar
was responsible for representing the clients, and they were paid $40 per out-of-court hour
and $50 per in-court hour, not to exceed $500 per misdemeanor case. These attorneys
were not supervised, and there was no oversight to their performance. Ms. Deaner agreed
that no one reviewed the private attorney’s caseloads.

Ms. Deaner opined that if her office reduced their caseload consistent with the
standards, a reduction of 10,000 cases, it would be difficult to find private attorneys to
handle that many cases. She further opined that the Administrative Office the Courts
(“AOC”) could not afford to pay all of those private lawyers their fees.

Ms. Deaner testified that her office was appointed to represent the Defendant in
April 2014, and his case was set for trial in September 2016. She agreed that this was a
reasonable amount of time to prepare his case and she anticipated that the attorneys
representing him would be ready for trial. She said that she had had to restrict them from
taking any new cases and to shift their supervisory duties to give them time to prepare.

The trial court asked Ms. Deaner why she did not shift Counsel’s duties the first
time that the defense attorneys requested a continuance. She acknowledged that it was a
good question and one for which she did not have an explanation. Ms. Deaner explained
that, when these attorneys were six months out from trial, they probably had every
intention of being prepared but got busy. Further, the culture of her office meant that
everyone was busy and everyone had a lot of cases so no one attorney wanted to shift
their caseload onto another attorney.

Ms. Deaner testified the changes she had to make to the defense attorneys’
workloads meant that something for another client was not being done. The Deputy
Public Defender, who typically did not handle cases because of her administrative
responsibilities, had been doing jail dockets for the two defense attorneys who were
primarily responsible for the Defendant’s case, Ms. Sims and Mr. Griffith. Further, she
suspected that Mr. Griffith and Ms. Sim’s other clients were not receiving an appropriate
amount of attention. Ms. Deaner said that, in the last three years, her attorneys did not
have adequate time to spend with each client. She read from some of the standards
expected of defense attorneys, which included meeting with each client, advising them
fully about all their rights and options, interacting with their family members, etcetera,
and said the attorneys in Nashville Public Defender’s office did not have time to meet
those standards.

Ms. Deaner opined that a number of the Nashville Public Defender’s Office’s
clients got “reasonably effective representation” consistent with Constitutional
13
requirements, but that there were clients who did not.

During cross-examination, Ms. Deaner testified that between 1996 and 1997, her
summary of her office records showed her office handled 31,645 charges. That number
varied slightly but increased to 44,232 charges over the next nine years. When she took
office, and shortly thereafter, they began tracking cases and not charges, and cleaned up
their database, so she could not say whether her office handled significantly more cases
than in 2005. Ms. Deaner said she had never filed a lawsuit against the State or asked
Metro to file a lawsuit against the State to address her workload concerns, but she said
she had discussed the possibility with the legal department at the mayor’s office.

Ms. Deaner agreed that she met with the mayor for the budget for fiscal 2017. She
requested funding for eight additional positions, six of which were lawyer positions. She
informed the mayor at that meeting that what her office needed most was a data analyst.
She agreed she did not inform the mayor that her office needed 29.3 additional attorneys
or that her office was having a systemic breakdown. The trial court asked Ms. Deaner
why she did not present the issue to the mayor’s office, and Ms. Deaner responded that
the reason that her office was not meeting standards was because of underfunding by the
State, not Metro. Metro exceeded its statutory obligation to her office, so she did not ask
Metro for the difference. Additionally, the amount of help her office needed far exceeded
what Metro could provide, so she decided to not ask for more.

Ms. Deaner agreed that, as part of implementing her office’s workload controls,
she sent a letter to the general sessions judges saying assistant public defenders would not
accept new clients if the client had not come to her office prior to three days before their
court appearance, so her office would have adequate time to prepare. This and other
workload controls reduced her office’s caseload by about fifty cases per week, or seven
percent.

Ms. Deaner agreed that the lawyers in her office could generally come to her with
a problem at any time. During her tenure, three assistant public defenders had informed
her that they were overloaded. Ms. Sims had never come to her and said she was
overloaded. Ms. Sims did not inform Ms. Deaner that the Defendant filed a motion in
February to act as co-counsel. Ms. Deaner learned in March or April that the Defendant
wanted to go forward with his trial pro se regardless of whether his counsel was prepared.
After she learned of this, she did not look into the case to see what had been done. Ms.
Deaner said she was aware that Ms. Sims had co-counsel, the use of her office’s
investigator, and the use of a second investigator for whom the trial court had approved
funding. Ms. Deaner was unsure whether all the witnesses had been interviewed in
preparation of the case. She did, however, take Ms. Sims at her word that she was not
ready to proceed with the case.
14
 Ms. Deaner testified that Ms. Sims’ caseload included four murder cases, eight
felony cases, and twenty-two post judgment matters, too many in light of the
Spangenberg Study. She stated that an attorney may not be able to handle more than two
jury trials in a twenty-month period because it takes just as much time to prepare a case
to plea on the morning of trial as it does to try the case, so it was unfair to parse out an
adequate caseload for a lawyer based on cases tried. Ms. Deaner agreed that Ms. Sims
had twelve open cases and that she had tried one case in 2015 and one case in 2016.

Norman Lefstein, a professor of law and Dean Emeritus of the Indiana School of
Law, testified as an expert in the area of public defense services. He offered the opinion
that the caseload of the Metro Public Defender’s Office in Nashville was extremely high
and put the lawyers at risk of failing to provide their clients with competent, timely, and
effective representation. Professor Lefstein testified he had reviewed the Spangenberg
Study and that the numbers contained therein regarding lawyer caseloads were the
highest he had seen anywhere. He said the Spangenberg numbers were 233 felonies or
550 misdemeanors that a lawyer could handle over the course of a rolling twelve-month
period. Professor Lefstein felt these numbers were inflated based on an inherently flawed
methodology in the study.

Professor Lefstein opined that the lawyers in Ms. Deaner’s office would not have
time to adequately handle their caseloads. He said further that the forty-four lawyers in
the office had seven investigators, which was a six to one ratio. When he worked as a
public defender in the past, it was a one to one ratio for lawyers to investigators, in part
because prosecutors used the investigative services of the police who gave them the case
and defense attorneys had a very different starting position. Professor Lefstein agreed
that he thought that there had been a systemic breakdown of the Metro Nashville Public
Defender’s Office.

During cross-examination, Professor Lefstein testified that he only reviewed the
numbers given to him by the lawyers in this case and did not verify those numbers. He
also only spoke to the three attorneys involved in this litigation and did not speak with
any other public defenders, prosecutors, judges, or clerks, and he never came to court to
observe before he formed the opinion that there had been a systemic breakdown of
services from the Nashville Public Defender’s Office. Professor Lefstein agreed that he
was given a list of cases to review, but did not know how many of those were civil
habitual motor vehicle offender cases, or general sessions cases, or indigence motions.
He also did not ask the attorneys how much time a post-judgment case would take. He
further agreed that he did not inspect the timesheet from the Public Defender’s Office in
Nashville, and had never researched the specifics of the Defendant’s case or the
representation he received.
15
 Professor Lefstein said he did not know how long the Defendant’s trial was
expected to take, how many motions had been filed in his case, how many witnesses were
anticipated, or if there were interns working on the case. He agreed that most public
defenders in the office where he had worked handled more than twelve cases at a time.
Nevertheless, Professor Lefstein said he was comfortable giving his opinion based on the
information that he had reviewed, that he believed the Nashville Public Defender’s Office
needed to be adequately “resourced,” and also that there needed to be private attorneys
involved to handle the additional work.

Professor Lefstein clarified that his use of the term “systemic breakdown” did not
mean that every single defendant was inadequately represented, but rather that defendants
were at constant risk of not being adequately defended. He did not offer a specific
number of attorneys needed to adequately staff a public defender’s office and said that
the study under way should provide more guidance.

Ms. Sims testified that she was an assistant public defender and that she strived to
provide the type of representation to her clients that they would receive at a high quality
law firm. She said that while she was very proud of some of the work that she had done
for some of her clients, she could not do everything necessary for most of her clients.
She offered that she provided “effective” representation to most of her clients, but that
there were some clients that she did not think that she represented effectively due to her
excessive workload.

Ms. Sims said that, before she was assigned to the Defendant’s case around 20132
she was a “line” public defender in Division I court. Other than her team leader, she was
the most experienced on her team, so her caseload tended to be heavier and include more
serious felonies. At the time, she did not have any supervisory duties. In 2014, Ms. Sims
was promoted to team leader for Division I, and she assumed formal supervisory duties
for two other attorneys, which included case assignments, scheduling, and personnel
management. She did not reduce her caseload at the time of her promotion, and she
estimated that her supervisory duties took about fifteen percent of her time.

Ms. Sims testified that in 2014, she had 157 open cases, which included one
murder case, eighty-one felony cases, five misdemeanors, and forty-seven post-judgment
matters. This number, she said, did not include any of the cases that carried over from
previous fiscal years or that were opened before July 1, 2013. It also did not include any
cases for which she sat as second chair. Therefore, she concluded that the number of
cases that she had at the time was higher than that figure. In 2015, Ms. Sims opened one
2
It appears that Ms. Sims was actually appointed to represent the Defendant beginning at his arraignment in April
2014.
16
murder case, thirty-four felony cases, eight misdemeanor cases, 111 post-judgment
matters, and 108 general sessions cases. For the same reason, these numbers were also
lower than the actual number of cases she had worked on. Further, by the end of 2015,
she was supervising five other attorneys, taking upwards of twenty-five percent of her
time.

In 2016, Ms. Sims had two additional murder cases, twenty felony cases, two
misdemeanor cases, 191 post-judgment matters, and 223 general sessions cases. Ms.
Sims testified that, also in 2016, the experience level of the attorneys she supervised
dropped significantly, so she had to increase the amount of time she spent formally
training and supervising the attorneys on her team.

Ms. Sims said that during the pendency of the Defendant’s case she had the same
investigator assigned to her. The investigator positions, however, had significant
turnover and Ms. Sims’s investigator was asked to absorb responsibilities for vacant
positions. This caused Ms. Sims to be more hesitant about her investigation requests and
she would do some of the investigation herself, leaving less time for actual legal
representation work. Ms. Sims estimated that in 2016, she worked between forty and
fifty hours per week, not including time that could not be tracked. She still only spent
about four hours per client, which she believed was not an adequate amount of time. Ms.
Sims said her performance did not meet the attorney’s performance standards of her
office.

Ms. Sims spoke directly about her representation of the Defendant, which began in
April 2014. Ms. Sims agreed the Defendant was indicted in July 2013, but said he was in
custody in Texas and there was a lengthy process to extradite him. Ms. Sims said she
brought on Mr. Griffith as second chair to split the duties of representing the Defendant
evenly. Ms. Sims said that, because of the inadequacy of her investigative staff, very
little investigation occurred on the Defendant’s case for a “long period of time.” She
requested funds for an additional outside private investigator from the trial court, which
granted her request.

Ms. Sims said that the Defendant’s first trial date was in June 2015, but the State
had some issues with witnesses being present so, because she was also not ready for trial,
Ms. Sims agreed to continue the case. The case was reset for August 2015. At that time,
Ms. Sims filed a motion to continue because there was some DNA evidence they had
learned was still in existence a few weeks before trial, so she needed time to deal with
this late-disclosed evidence. She said that, but for that evidence, she was ready to
proceed to trial. The trial was scheduled for April 2016. In February 2016, the
Defendant filed a motion asking to be appointed as co-counsel and also asking that his
April 2016 trial date not be delayed. Ms. Sims said that between the August 2015 date
17
when she was prepared for trial and the April 2016 rescheduled trial date, Ms. Sims was
unable to prepare for trial because of her workload. At that time, Ms. Sims filed a motion
to dismiss for speedy trial violation and in the alternative a motion for a continuance.

Ms. Sims testified that since April of 2016, her workload had shifted so that she
could prepare for the Defendant’s upcoming trial on September 19. She stopped
accepting or assigning herself new cases, instead assigning those cases to her team. She
also decreased her appearance on the general sessions docket schedule. Ms. Deaner and
the Deputy Public Defender, Ms. Manning, had been required to cover some of the
general sessions dockets. Ms. Sims said that she had not done this before because
everyone in the office was busy, so it was just a shifting of work, making her colleagues’
workload less bearable.

Ms. Sims testified that in the three years since the Defendant’s indictment, Dr.
Charles Harlan, the medical examiner who performed the autopsy in the case, had passed
away. Ms. Sims identified the final order revoking Dr. Harlan’s medical license based
upon a number of misdeeds that were investigated, which included issues with Dr.
Harlan’s investigating cases and forming conclusions. Anyone from the medical
examiner’s office who testified in place of Dr. Harlan could not testify about the facts
related to his misconduct and whether that was present in this case.

Ms. Sims detailed ways in which it was difficult for the Defendant to review,
maintain, and discuss the evidence in the case against him with his counsel. Ms. Sims
reiterated that the primary cause of the Defendant’s case being delayed was her workload,
and that his representation was the responsibility of the State.

During cross-examination, Ms. Sims testified that she thought she had provided
deficient representation to some of her clients. She said she could not answer whether
she had offered the Defendant deficient representation because his case had not yet been
tried but that, had the case had gone to trial in April, her representation would have been
deficient. Ms. Sims said her inability to be prepared for trial in August 2015 represented
an ethical lapse by her office toward the Defendant.

Ms. Sims testified that in 2015, she conducted two jury trials: one in Division III,
for which she sat second chair and was, therefore, not reflected in her numbers; and the
other in Division I. Ms. Sims testified that in 2016, she had tried a rape of a child case
only, and that since then, she had not conducted any jury trials. The State then
questioned Ms. Sims regarding each week of her work and whether she had a trial
scheduled, and she did not have any trials scheduled between January and June of 2016.
Ms. Sims noted that she had a first degree murder trial set for August 21, for which she
was first chair. Ms. Sims said that, as her affidavit reflected, she had opened twelve cases
18
in criminal court during the fiscal year of 2016. Ms. Sims stated that, because of carry-
over cases and the data issue, twelve open cases was not the sum total of her caseload.
Ms. Sims could not offer testimony regarding the sum total of her open cases, but she
said it was closer to fifteen.

Ms. Sims agreed that several investigators, social workers, and interns from her
office visited the Defendant in jail. She agreed that a total of 760 hours had been
submitted into the public defender’s database as going toward the Defendant’s defense.

Ms. Sims agreed that starting in December 2015, she had two investigators
working on this case. Ms. Sims agreed the defense did not make a request for personnel
or experts to assist the defense. Ms. Sims said the Defendant never asked that she be
removed from the case. Further, she had never asked to withdraw from his case. She
said, however, the Defendant understood how much work she had done on the case and
that he would have to start over again with a new attorney. He was, therefore, making a
“calculated and rational decision” to keep Ms. Sims as his attorney but that the choice
was not necessarily totally free and voluntary.

Ms. Sims agreed that, at the March 31 hearing on the speedy trial motion, the
Defendant said he would be happy to agree to any continuance if he was removed from
the care of DCSO and placed in the custody of TDOC, because he believed he would
receive better treatment. He did not object to the continuance otherwise, but he was
never moved to TDOC custody.

Kevin Griffith testified that he began working at the Public Defender’s office in
2010 after he graduated from law school. He felt he was unable to provide the
representation that he would like for clients, because of his workload. Mr. Griffith said it
was impossible to have the time that he needed for every client on every case. Mr.
Griffith said that in the fiscal year 2014, he was assigned fifty-seven felony cases, eleven
misdemeanor cases, thirty-six post-judgment matters, and 129 general sessions cases.
This, however, did not convey the full number of his cases because the number did not
include any cases that were not assigned to him within the computer system or any cases
that he opened prior to 2014 that were not settled as of 2014. For example, the
Defendant’s case was not reflected in his numbers, because he was not the lead attorney,
despite the fact that he had spent a significant amount of time on the case.

Mr. Griffith said that, in 2015, he was assigned one murder case, twenty-four
felony cases, twelve misdemeanor cases, fifty-three post-judgment matters, and 118
general sessions cases. During that time, while he did not have any formal supervisory
duties, he was responsible for maintaining the complicated general sessions schedule. In
March 2016, Mr. Griffith was made the team leader of Division V Criminal Court, and
19
his supervisory duties took 15 to 20% of his time. In 2016, he was assigned thirty-five
felony cases, six misdemeanor cases, fifty-four post-judgment matters, and 325 general
sessions cases. Again, he clarified that this was not an accurate representation of his
cases due to inadequacies in office recording of caseload. He noted that the post-
judgment matters number was significantly low based on the failure to reassign the case
in the database. Mr. Griffith said that, based on the numbers, he had 3.5 hours to spend
on each case and that this number could be significantly less depending on the actual
number of cases that he carried at any given time, based on cases lasting into another year
than the year they were assigned, and cases for which he sat second chair. Mr. Griffith
opined that he did not have time to adequately represent each of his clients.

About the Defendant’s case, Mr. Griffith said that he and Ms. Sims were not
prepared for the August 2015 trial because they did not have time to devote to the case
given their large workloads. They further were not prepared in April 2016. Mr. Griffith
had three trials between August 2015 and April 2016 and had three other very serious
cases that settled within weeks of their scheduled trial, so he had to prepare for trial in all
three of those cases. Mr. Griffith said they would be prepared for trial by the current
September trial date because the workload had been shifted to other attorneys, putting a
strain on their team. Mr. Griffith said that he and Ms. Sims never went to Ms. Deaner
with the issue of their inability to be prepared for the trial dates.

Mr. Griffith said that he felt that his workload had prevented him from meeting the
performance standards expected of him for each client he represented. He agreed that he
had met the standards with respect to some of his clients but not all.

During cross-examination, Mr. Griffith agreed that post-judgment matters
assigned to him included probation violations, petitions to declare indigency, and a
petition for a suspended sentence, which did not take nearly as much time as a trial. Mr.
Griffith testified that he had spent more than an hour on some of these issues but said that
they did take significantly less time than other types of cases.

Diana Latiolia, a statistical research analyst with the Metro Nashville criminal
justice planning department, testified that her department gathered information upon
which to base relevant statistics. She created a report entitled “number of cases by
criminal court divisions,” which she offered in her testimony. Her information contained
the number of defendants represented by the entire Public Defender’s Office from 2011
to 2015. She clarified that the report showed the number of cases pending as of a specific
day in each of the relevant years.

Ms. Latiolia testified that in 2011, 830 defendants were represented by the Public
Defender’s Office. In 2012, that number was 907. In 2013, the number of defendants
20
was 823; in 2014, 893; and in 2015, 700. Ms. Latiolia testified that she looked at the
percentage of defendants represented by the Public Defender’s Office in each of the
criminal court divisions and how that percentage had changed over time. In Division I,
the Public Defender’s Office represented 54% fewer defendants in 2015 than in 2012.

Ms. Latiolia examined the number of general sessions cases handled by the Public
Defender’s Office. In 2011 there were 2,622 cases; in 2012, 2,355; in 2013, 2,263; in
2014, 2,025; and in 2015, 2,182. The number of defendants represented by the Public
Defender’s Office was much fewer, explaining that defendants may face multiple
indictments. In 2011 there were 439 defendants; in 2012, 339 defendants; in 2013, 375
defendants; in 2014, 315; and in 2015, 415. These numbers included all pending matters,
regardless of the year that the case was initiated.

During cross-examination, Ms. Latiolia agreed that the numbers in the reports
were based on entries by the clerk’s office and the numbers were dependent on the clerk
entering those numbers correctly. She said she had never spoken with the Public
Defender’s Office about the report or requested search perimeters to ensure the accuracy
of the numbers. Ms. Latiolia agreed there were a number of categories not contained in
the report, including: community corrections violations; final forfeit; or motions/petitions
or review status to report. Ms. Latiolia explained that the report was prepared to include
cases that have a pending status and also a future court date. She said she was unable to
determine from this information how many cases were closed in any given year. She
mentioned there were limitations such as retrial dates of the same defendant, which may
cause underreporting of the number of jury trial settings. Based upon this, her office
manually looked at the clerk’s entries and believed their report was as close to accurate as
possible. Mistrials were also not counted in her report, as it only included cases disposed
of by trial.

Tom Davis, the Director of Records and Offender Information with the Davidson
County Sheriff’s Office (“DCSO”), testified and identified the Defendant’s visitation
history from April 2014 to August 2016. He said that the DCSO tried to accommodate
every attorney visit, even if a defendant is in a “[s]pecial management unit.” He then
identified the Defendant’s disciplinary reports, which contained reports of six incidents.

During cross-examination, Mr. Davis testified he had no personal knowledge of
whether the visits listed in the visitor log were accurate. He also did not have personal
information about the incidents in the disciplinary reports. Mr. Davis also agreed the
report did not contain any grievances lodged by the Defendant.

The State offered recordings of the Metro Counsel Budget Hearing for the years
2013 through 2016, the period Ms. Deaner testified about her office. It also offered her
21
testimony for the mayor in fiscal year 2017. Ms. Deaner was recalled and testified that
the testimony that she gave was in response to the question of whether the PD’s office
could function on the amount allotted with the mayor’s budget. She agreed that she told
the office that in the fiscal year 2015, her office handled in the vicinity of 30,000 cases.
She maintained that this number accurately conveyed the status of her office.

Ms. Deaner took issue with the statistics presented by Ms. Latiola. She said the
snapshot of those statistics from an arbitrary day in each year in no way offered any
insight into how many cases her office closed each year. She said she had not looked at
the search parameters but questioned the reliability of information input into CJIS about
who the assigned counsel of a case was. She also did not think this data was a good
comparison to the data that she had offered. Upon questioning from the trial court, Ms.
Deaner agreed that if the Defendant’s case was dismissed, her request with the
Legislature for more funds potentially held more weight.

Based upon this evidence, and the arguments of counsel, the trial court denied the
Defendant’s motion by written order, making findings summarized below.

B. Pretrial Motions
1. Motion to Suppress 1993 Search Warrant and Evidence

The Defendant filed a pretrial motion to suppress evidence obtained as the result
of the search of his home in 1993, and on appeal maintains the trial court erred in denying
that motion. At the hearing on the motion to suppress, the parties presented the following
evidence: Mike Smith, a retired detective with the Metropolitan Nashville Police
Department (MPD), testified that he was working as a detective in 1993 and was lead
investigator in this murder case. He executed a search warrant on March 8, 1993, at the
Defendant’s home located in Davidson County. Before Clifford Mann, who was another
detective working the case, applied for the search warrant, the Defendant spoke with
police, giving them a description of clothing he was wearing the day of the murder.
During the interview, the Defendant stated that he had received military training on tying
specific knots. Detective Mann then filed for a search warrant, the main purpose of
which was to search for clothing, and upon the warrant’s execution, the detectives found
the sought-after clothing.

Detective Smith testified that during the execution of the warrant, the officers also
found evidence they believed was relevant to the murder, including items typically used
for sexual bondage acts, including ropes. They deemed these potentially relevant because
the victim had been found bound with ligature and a plastic bag covering her face.
Detective Mann testified that his inventory list was missing a hammer that officers also
found at the Defendant’s home.
22
 During cross-examination, Detective Smith agreed that officers had spoken with
the Defendant’s live-in girlfriend at the time, Shirley Singleton. Ms. Singleton told
officers the Defendant had washed the clothes the officers were looking for, and that she
had hung them to dry. The detective agreed that Ms. Singleton was home when officers
executed the search warrant at 5:00 a.m. on March 8, 1993. The detective said his notes
indicated the clothing was found on a clothesline in the second bedroom. Officers
continued their search and collected several items from the closet of that bedroom,
including guns, ammunition, and pornography books on bondage. On a shelf in the same
bedroom, officers found a large knife. Detective Smith agreed that, at the time he
executed the search warrant, he had no information that the victim had been shot or
stabbed, and the search warrant did not include a listing that officers intended to search
for weapons.

Detective Smith further agreed that, even after officers had found the clothing they
sought, they searched a second bedroom and the closet in that bedroom. Officers found
and collected a nylon bag in that closet which contained some bondage items including
chains, clasps, locks, and straps. Detective Smith agreed that, at the time, there was no
evidence that the victim had been sexually assaulted.

Detective Smith testified that officers collected a hammer, which was listed in a
supplemental report. The detective was unsure where the hammer was found. He agreed
that the hammer was the only tool he collected from the house. The detective agreed that,
as his report indicated officers gathered hair samples from the washing machine, the
officers must have searched the washing machine. He had no independent recollection of
this.

During redirect examination, Detective Smith testified that, while officers found
some clothing on the line in the bedroom, they also looked in the closets because they
were not sure exactly what clothing would become relevant. He further stated that
officers knew the telephone cords used to bind the victim had been cut with a sharp
instrument, such as a knife.

The State then informed the trial court that it was not seeking to introduce the guns
or ammunition. They were seeking to introduce the book, which included the term
“bondage” in its title, because the victim was bound at the time of her death.

The trial court denied the Defendant’s motion to suppress, finding the items
additional to the clothing were within plain view.

2. Motion to Exclude DNA
23
 The Defendant filed a motion to exclude the DNA evidence obtained pursuant to a
search warrant issued in February 2012. He challenged the relevancy of the evidence
pursuant to Tennessee Rules of Evidence 401 and 403. The Defendant argued that, while
this evidence was circumstantial, it was still subject to rules 401 and 403. The Defendant
contended that the prejudice of introducing the DNA evidence from the tape outweighed
its probative value because 2,258 of 4,114 individuals in the database could have
contributed the DNA on the tape, and 878 of 1,601 Hispanic individuals could have
contributed it. That meant that the chance of testing another unrelated male and being
able to exclude him as a contributor was only around 45%, and thus over half of the
males in this ethnic group were included in the result. The pre-concentrated nail
clippings weighed a little more heavily, with a 63% chance that a Hispanic male could be
excluded as a contributor. The post-concentrated nail clipping testing increased the
percentages of being able to exclude a Hispanic male to 93%, meaning six possible
contributors out of 1,600, but the Defendant argued that those calculations did not rise to
the level typically seen in DNA calculations.

The State countered that it was relevant that male DNA was found on the tape and
under the victim’s fingernails, and that the evidence was further relevant because while
the type of DNA testing used, Y-STR, may not have the high statistics of other DNA
testing it did serve by process of elimination to increase the probability of identification.
The weight assigned to such evidence was for the jury to decide. The State further
posited that the statistical numbers here were not far from others allowed by courts across
Tennessee, and said this evidence was an important “brick” in the “wall” of
circumstantial evidence it must build to convict the Defendant.

The trial court denied the motion to suppress the DNA evidence. The findings
will be discussed below.

C. Trial

The case proceeded to trial on September 19, 2016, and the parties presented the
following evidence: Kem Kalon Radovich testified that, at the time of the murder, he
was fifteen years old and living in a two-bedroom duplex on Woodland Street with his
mother, eight-year-old brother, and the victim, who was his grandmother. Mr. Radovich
noted that the home was usually unlocked. Mr. Radovich knew the Defendant because
the Defendant had previously been married to his mother, and Mr. Radovich still
considered the Defendant his stepfather. Mr. Radovich described his relationship with
the Defendant as “very good,” saying that he still visited the Defendant at his house even
after the divorce.

24
 Mr. Radovich recalled the events of the day his grandmother was murdered.
Earlier in the day he had been at the home that the Defendant shared with Shirley
Singleton, who was the mother of Mr. Radovich’s friend Larry Singleton, and with whom
the Defendant resided after the divorce. Mr. Radovich said that he and his brother,
Joseph, spent the weekend at the Defendant’s home but that Ms. Singleton was working
that weekend, so she was home very little.

On that Sunday afternoon, Mr. Radovich and his friend Larry had returned to the
Defendant’s house from a fun house, and the two were playing a game. It began getting
dark, so Mr. Radovich decided to return home to finish his homework before school. The
Defendant encouraged Mr. Radovich to stay and take the school bus from the
Defendant’s house the next morning, but Mr. Radovich insisted on making the twenty to
thirty-minute walk home because of his homework. Mr. Radovich said that, when he
returned home about 5:00 or 6:00 p.m., he noticed the door was locked and he did not
have a key. He looked through the window and saw the television was on a channel his
grandmother never watched, and the volume was very loud, which he found odd. Mr.
Radovich knocked on the door several times and checked all the windows, which he
found tightly shut. He went to the nearest gas station where he used a pay phone to call
the Defendant and tell him there was something wrong. Mr. Radovich then returned to
his house, found a heavy metal jack, and beat down the back door. Upon entering, he
found his grandmother lying on the ground with a bag over her head, so Mr. Radovich
pulled it off. His grandmother’s mouth was open and Mr. Radovich remembered that he
started screaming.

Mr. Radovich said he left the house shortly thereafter, incoherent and screaming
for help. He did not remember much of what happened until he recalled sitting inside a
police car, numb and shaking. Mr. Radovich said his memory from that point was vague,
and he was unsure whether the Defendant came to the home.

Mr. Radovich said he knew a man named Nathan Allen Smith, who was a year his
senior. Mr. Smith was related to Mr. Radovich’s neighbors and came to stay with them
infrequently. Mr. Radovich said that he and Mr. Smith sometimes got into trouble
together but that he was unaware of any issue between Mr. Smith and the victim.

During cross-examination, Mr. Radovich testified that he could not recall all the
statements he had made to police in 1993. He did not recall telling them that, upon his
return from the fun house, the Defendant said he had been trying to reach his
grandmother by phone and that Mr. Radovich should return home. Mr. Radovich said he
did not recall telling detectives that the Defendant told him to call him when he returned
home so that the Defendant knew he got home safely.

25
 Mr. Radovich said he and the Defendant had a good relationship in 1993, and it
was not unusual for Mr. Radovich to spend the weekend with the Defendant. Mr.
Radovich said he trusted the Defendant at the time, and he told detectives that the
Defendant had never shown signs of violence and would never hurt his grandmother. Mr.
Radovich said he was not afraid of the Defendant but “kn[e]w his anger,” having seen
him get angry many times.

Mr. Radovich said he had not spoken with the Defendant since the murder. He
and his mother moved to Wisconsin, where he currently resided.

On redirect examination, Mr. Radovich testified that detectives had swabbed his
mouth for testing.

Erin Wilson, a 911 operator, identified an audio recording of the 911 call about the
murder. Greta McClain testified that she was a first responder to the call about the murder
in this case. When she arrived, the victim’s grandson was present and appeared to be
crying and possibly in shock. Ms. McClain went into the home where she found the
victim tied to the bed. During cross-examination, Ms. McClain said that, shortly after she
arrived at 7:32 p.m., several detectives arrived.

EMT Ken Hollis responded to the scene at 7:40 p.m. When he arrived, the victim
was in the bedroom lying on the floor, and tied to the bed with a bag over her head. Mr.
Hollis said that he and his partner removed the bag and assessed whether the victim could
be revived. They also lifted her shirt to attach an EKG and detect any heart activity.
These efforts were unsuccessful, as rigor mortis had already set in. Mr. Hollis agreed that
there was a student driver with him that evening. He also said the bag over the victim’s
head was bloody and that he wore latex gloves for the duration of the time he was at the
scene.

Tom Jones, a crime scene investigator with the Metro PD, testified that he
responded to the crime scene. When he arrived, he first did a walk-through with a video
camera recording anything that caught his eye. That video recording was admitted into
evidence. Mr. Jones also attempted to lift some latent fingerprints at the scene, including
from a telephone. Those fingerprints were submitted to the latent print examiners at the
police department. Mr. Jones took some photographs at the scene, including one of a
phone cord that had been cut from a phone in the victim’s bedroom, and said the cord
appeared to have been cut by a sharp instrument.

Mr. Jones identified photographs that he took of the victim’s left arm tied with the
cut telephone cord to the frame of the hospital bed located in her bedroom. Mr. Jones
photographed a knot tied in the cord, and he sent that knot with the victim’s body to the
26
morgue for the autopsy. Mr. Jones subsequently went to the morgue and gathered the
victim’s clothing and the ligature. While there, he took fingernail scrapings from under
the victim’s fingernails. Mr. Jones saw a bruise on the back of the victim’s left hand and
also a ring on that hand.

Charles Ray Blackwood was a crime scene investigator with the Metro PD at the
time of these events, and this case was his last full-time assignment. Mr. Blackwood
responded to the call in this case and collected and documented evidence at the crime
scene. Mr. Blackwood identified photographs that he took of the crime scene, which
included pictures of the victim on the floor with a plastic bag over her head, bedding, and
a pillow on the floor. He said that a fingernail was broken on the victim’s left hand and
there was blood under her nail. Mr. Blackwood testified that there was tape on the plastic
bag and that, when he removed the tape from the bag, he found what appeared to be a
piece of latex glove.

During cross-examination, Mr. Blackwood testified that latent print analysis did
not reveal how long a fingerprint had been on a piece of evidence. Mr. Blackwood said
that he collected a clump of hair from beneath a splintered floorboard and some hair and
fiber around the victim’s body. He unsuccessfully searched trash cans and other areas for
the murder weapon. He agreed there were other people present at the scene, such as the
EMTs who evaluated the victim, and he could not be certain that every one of them wore
gloves.

Randall Fowler, a retired Metro PD officer, testified that he was a homicide
detective in 1993 and participated in this investigation. He interviewed the Defendant at
around 7:00 p.m. while the Defendant was in Detective Fowler’s police vehicle, parked at
the crime scene. The detective explained that when he arrived at the scene there was a
young man present and, shortly thereafter, the Defendant arrived. The young man
introduced the Defendant as his stepfather. Detective Fowler took the Defendant to the
vehicle to ask him what he might know about the crime. The Defendant explained that
the victim was his mother-in-law and that he had seen her last on the day before the
homicide, which was a Saturday, when he asked to borrow $20.

The Defendant told the detective that when he came to the victim’s home on
Saturday at around 6:00 p.m., the victim greeted him. He told her that he wanted money,
and he could see that she had packed clothing he had stored at the victim’s home. The
Defendant said it appeared she wanted him to take the clothing and some papers out of
the house. The Defendant said he did not want to take the clothing because he could not
carry it along with groceries, and he needed to stop at the grocery store. The Defendant
told the detective that he was wearing tennis shoes, blue jeans, and a shirt at the time but
that he had fallen in a “mud hole,” so he had washed all the clothing and also his shoes.
27
When the detective asked the Defendant where the “mud hole” was located, the
Defendant told him it was in an alley.

During cross-examination, Detective Fowler testified that the television was on
when he arrived at the victim’s home. The first person he spoke with was the victim’s
grandson, Mr. Radovich, and he then spoke with the Defendant. The detective spoke
with Jonathan Brock, a neighbor, and asked if Mr. Brock had seen anything related to the
murder. He also asked Mr. Brock his opinion about the Defendant. Mr. Brock told the
Detective that his younger brother, Nathan Allen Smith, “hated” the victim. Mr. Brock’s
mother, Silenda Crosby, was present and confirmed that Mr. Smith hated the victim.
Detectives followed up on that lead and learned that Mr. Smith was not in the area at the
time of the murder. Detective Fowler testified that he had also interviewed another
potential witness, Judy Crabtree, on March 10, 1993, to ask her about this homicide.

Robin Wolf Howard testified she dated Mr. Brock around the time of the murder,
and that she lived in a duplex with Mr. Brock and his mother, who were musicians. Ms.
Howard said that at the time, she worked at a restaurant. She recalled that their neighbors
were the victim, Ms. Ramsey, and Ms. Ramsey’s two sons. She knew the Defendant as
Ms. Ramsey’s husband and said that the Defendant would occasionally come to their
home to ask for a ride to different locations.

Ms. Howard recalled that on the day she learned that the victim had been
murdered, she was watching Mr. Brock perform with his band. Earlier that day, at
around noon or 1:00 p.m., she heard a “bunch of commotion” on the other side of the
duplex. She heard a man’s voice, which she described as “southern . . . angry . . . [and]
[e]xcited.” She also heard what sounded like a child’s whimper. Ms. Howard said that
she did not call the police because there were two male children who lived in the home,
so it was not uncommon for there to be a ruckus on that side of the duplex.

When Ms. Howard heard that the victim had been killed, she became emotional
because she knew the commotion she had heard was likely surrounding her death. Ms.
Howard said that Mr. Smith was a teenager at the time of this murder but was not living
with them.

Thomas Simpkins, a retired Metro PD officer, testified that, at the direction of
Detective Smith, he went to the Defendant’s house on the day of the search and retrieved
from police several bags of evidence, including a wooden-handled hammer, clothing
including a pair of pants and tennis shoes and a jacket, a hair sample. Officer Simpkins
turned those items into the property section.

During cross-examination, Officer Simpkins agreed that the property had been re-
28
bagged over the years. A note on the bags said that the property had been “re[-]bagged
due to the deterioration of the brown bags.”

During redirect examination, Officer Simpkins testified that he photographed the
items before he placed them in bags. He recalled the tennis shoes had been found
hanging on a clothesline in one of the bedrooms, along with the pants and other clothing
items. He was unsure whether the jacket was also on the clothesline. The officers found
the hair samples in the washing machine.

Mike Smith testified that he was a detective for Metro PD assigned to the murder
squad at the time of this murder, and acted as lead detective in this case. Several other
officers assisted him, some of whom were now deceased. When Detective Smith arrived
at the scene, he noted the only sign of forced entry was to the back door. The damage
appeared to have been caused by a “bumper jack.” The detective identified photographs
from the crime scene that depicted how it looked that day. There were photographs of
the victim’s purse, which included her wallet and approximately $43 in cash. Another
photograph showed the victim was wearing a diamond ring on her left hand at the time of
her death. Detective Smith did not see anything that appeared to be missing from the
home.

Detective Smith testified that Detective Clifford Mann conducted the Defendant’s
interview and assisted in this investigation. Detective Smith personally executed the
search warrant of the Defendant’s residence. He asked Officer Simpkins to gather the
evidence found during the search.

Detective Smith said that he also interviewed Ms. Ramsey, whom he provided
with a tape recorder, which she later returned. Detective Smith also interviewed Ms.
Singleton.

During cross-examination, Detective Smith said that no charges were brought
against the Defendant in 1993. Detective Smith remained the lead detective until he
transferred out of the unit. He agreed that the only suspect that he developed in this case
was the Defendant and that he did not investigate anyone else. Detective Smith agreed
that there were dishes in the kitchen sink at the time of his initial investigation, but he did
not gather those for testing. Detective Smith agreed that damage to the back door was
caused by Mr. Radovich, when he gained entry into the home. The detective agreed that
there were no other signs of struggle in the home. He found a bag of the Defendant’s
clothing by the door, and he also found a “beeper.” Detective Smith documented several
observations of the crime scene, and then he went back to the police department where
other officers were already interviewing the Defendant. He joined that interview while it
was in progress but did not have much independent recollection of what happened during
29
the interview. He agreed that, by that time, the Defendant was already a suspect.

Detective Smith agreed that the Defendant told officers what specific clothing he
was wearing earlier that day, and the officers found clothing matching that description
hanging on a clothesline in the room where he lived. Detective Smith submitted several
requests for examination of pieces of evidence submitted to the TBI. The detective
agreed that much of his investigation included asking each witness about the Defendant.

Detective Smith agreed that he interviewed Mr. Radovich and that they likely
attempted to record the interview. During that interview Mr. Radovich told him that he
had been at the Great Escape for most of the day of the murder, and that he had taken a
bus home and run into the Defendant and Ms. Singleton on Gallatin Road. The
Defendant sent him home because he had school the next day. The detective agreed that
Mr. Radovich also told him the Defendant said he had been trying to contact the victim
during that day, and Ms. Singleton was concerned that the victim had fallen. Detective
Smith agreed that, despite the Defendant being a suspect almost immediately, his house
being searched within twelve hours of finding the victim, and witnesses being questioned
about him, law enforcement officers still did not charge him with a crime at that time.

On redirect examination, Detective Smith testified that Mr. Radovich’s entire
statement included that Ms. Singleton told him that she was scared that the victim had
fallen on the telephone cord and could not get up.

Jacqueline Cockrill, a civilian employee of the Metro PD crime laboratory,
testified as an expert in latent fingerprint examination. She said she found multiple
identifications of the Defendant’s fingerprints on the telephone and headset. There were
additional fingerprints taken from the residence that were not attributable to the
Defendant.

During cross-examination, Ms. Cockrill agreed that she was not the first person to
attempt to compare the latent fingerprints. Ms. Cockrill testified that none of the other
latent fingerprints submitted matched the Defendant’s fingerprints.

The parties then stipulated that several items gathered from the victim’s home and
body were turned into the Metro PD evidence and property room and that several pieces
of evidence were submitted to the TBI for testing. Special Agent Floyd Phillips did not
find any latent fingerprints on the items submitted.

Bradley Everett, a TBI special agent forensic scientist, testified as an expert in the
field of serology and DNA analysis. He said that one of the reports was from testing
done in July 1993 and that it included information such as blood type and whether the
30
blood present was of human origin. Multiple items were tested, including samples of
both the Defendant’s and the victim’s blood. Agent Everett said that TBI tested
scrapings from underneath the Defendant’s and the victim’s nails and blood spots from
items found in the home. Testing was unable to reveal a DNA profile for the contributors
and the test results were inconclusive.

During cross-examination, Agent Everett testified his office first began DNA
testing in the mid-1990s and then began a more detailed type of testing called PCR-based
testing in the late-1990s. His office was not asked to do DNA testing in this case until
2010. He said that the only items that he developed a partial profile from were the clear
tape and two blood spots found on the floor. The victim could not be excluded as the
contributor to that profile.

Agent Everett testified that he tested a piece of a latex glove tip and he found the
victim’s DNA on both sides and also a minor contributor on one of the sides. He could
not, however, further identify the contributor because there was insufficient DNA for
testing.

Huma Nasir testified as an expert in forensic DNA and that she was a senior
forensic DNA analyst with Cellmark Forensics at the time the DNA testing involved in
this case was performed. She explained the test used in this case, the Y-STR test, saying
that it was unique in that it was designed to test for the male DNA only in a sample. The
advantage of such a test was that it could target the male DNA in the sample and ignore
the female DNA. This helped when dealing with a very small quantity of male DNA.
The limitations of this test were that the Y chromosome was not unique to an individual
but was passed down from one generation to another. Therefore, the Y chromosome
profile would be shared by all of the male’s relatives and none of them could be excluded
as the contributor. Ms. Nasir said that this type of testing did not become available until
around 2000.

Ms. Nasir identified her report dated May 28, 2015, which was her final report and
contained all her Y-STR results. Ms. Nasir said that she used half of two swab samples
from evidence taken from the victim, returning the other half of both samples to the
police department for future testing if necessary. Ms. Nasir said that two independent
analysts inputted the evidence into a genetic analyzer. She then personally reviewed all
the material and drew her own conclusions.

Ms. Nasir discussed her conclusions, saying that concentrating the sample of DNA
taken from underneath the victim’s left fingernails resulted in finding seven allele
locations. The Defendant’s known DNA profile was consistent with each of those allele
locations. Because his DNA was consistent with the nail clipping profile, he could not be
31
excluded as the contributor of the DNA. His male paternal relatives could also not be
excluded as the contributor. Ms. Nasir further concluded that the known DNA profile for
Mr. Radovich excluded him as the contributor of the DNA found under the victim’s
fingernails. To offer statistical significance to these numbers, Ms. Nasir testified that the
allele locations combination found under the victim’s fingernails were seen only six times
in 1,601 of the database of men of known Hispanic origin. More specifically, 99.3% of
Hispanic men would be excluded as a contributor. Ms. Nasir testified that her testing of
the tape indicated the presence of DNA from two, possibly three, different men.

During cross-examination, Ms. Nassir testified that, if during the concentration
process there was contamination, then the concentration process would make the
contamination appear more pronounced. She further agreed the DNA from the clear tape
showed the presence of potentially three male contributors. Ms. Nassir agreed that, based
on Mr. Radovich’s known Y-STR genetic profile, she could neither include nor exclude
Mr. Radovich as the contributor of the DNA found under the victim’s left fingernails or
on the tape. Ms. Nassir agreed that she did not know the source of the DNA present
under the fingernails or on the tape, meaning it could have come from contact, or saliva,
or some other transfer.

James Adendall a retired officer with Metro, testified that he was assigned this
case in 2010 as a “cold case.” After reviewing what had been done when the case was
first investigated, he sent some items to be tested at the TBI laboratory. TBI informed
him that they did not have the proper equipment to test the evidence, so Officer Arendall
forwarded the evidence to Orchid Cellmark for retesting. Officer Arendall said that as
part of his investigation he located the Defendant, who declined to voluntarily give him a
DNA sample. Officer Arendall obtained a search warrant allowing him to retrieve the
Defendant’s DNA by buccal swab. He also obtained a sample of Mr. Radovich’s DNA
by buccal swab and sent both swabs for testing.

During cross-examination, Officer Arendall testified that the Defendant was a
suspect when this case was first investigated. He said he wanted to locate some of the
witnesses and re-interview them because their recorded interviews were of poor quality.
He recalled interviewing Ms. Singleton and said her statement was substantially similar
to the statement she gave originally. He also interviewed Ms. Singleton’s son, Larry
Singleton, Ms. Ramsey, and Robin Wolf. There were some witnesses who had been
interviewed in 1993 whom he was unable to locate at the time of his cold case
investigation. Officer Arendall agreed that he did not seek DNA testing comparing Mr.
Radovich to the male contributor on the DNA submitted in this case until after the
Defendant had already been indicted for the murder.

Officer Arendall said he interviewed both Ms. Ramsey and Mr. Radovich in 2012
32
but his tape recorder did not work at the time, so those interviews were not recorded. He
agreed that he did not develop a single new witness or suspect as part of his investigation.

Clifford Mann, a retired officer with Metro PD, testified that he was one of the
detectives that investigated this case in 1993. Detective Mann interviewed the Defendant
at the police station, and he was the only detective present for the duration of the
interview. Detective Mann said he allowed Ms. Singleton to go into the room with the
Defendant after the interview, in an attempt to get information from the Defendant.
Detective Mann said he took pictures of portions of the Defendant’s body, including
small scratches or abrasions on his upper shoulder, lower shoulder, and hand. He
transported the Defendant to the hospital where they collected the Defendant’s fingernail
clippings. Detective Mann also confiscated the Defendant’s watch, which he turned into
evidence.

During cross-examination, Detective Mann testified he had not been involved in
this case since March 13, 1993. Detective Mann agreed the Defendant told him the
victim and a man named Nathaniel Smith had gotten into an argument at the Super X
Drugstore on Gallatin Pike. He said he never interviewed Mr. Smith and made no
attempt to investigate this alleged argument. Detective Mann testified he found a
witness, Steve Bartlett, who told him he had been working in the neighborhood March 6,
1993, and had seen a white male teenager standing across the street looking at him while
appearing distressed. Detective Mann testified that, while he put this information in his
report, he made no effort to follow up on that information. The detective agreed he did
not ask Ms. Bush to record a telephone conversation with anyone other than the
Defendant.

During redirect examination, Detective Mann testified he attempted to locate Mr.
Smith in follow up to the Defendant’s claim, but he and other officers were unable to do
so. Detective Mann said that Mr. Bartlett’s claim about a distressed teenager was
regarding a different address, so he did not think that it was connected to the victim’s
murder.

The State then played a video recording of the Defendant’s 1993 interview.
During the recording, the Defendant offered to help the investigation in any way he could
and that he would kill anyone who had murdered the victim. He said he was not a violent
person, but he could be when provoked. The Defendant said that he had gone into the
army, which had made a “killer” out of him, by teaching him to break necks or use a
garrote knot to inflict injury or death.

The Defendant said during his interview that he went to the victim’s house after
Mr. Radovich called. On his way, he called 911 and asked for police assistance,
33
assuming that he would need to break in the door when he arrived. Before he arrived,
Mr. Radovich kicked in the door. When police arrived, they did not allow him to enter
the residence. The Defendant said that someone told him that the victim had a bag over
her head and that she had been strangled but that he did not know what had happened.

The Defendant told officers that he had gone to the victim’s home earlier in the
day, at around 3:00 p.m., but that no one was home when he arrived. He said that on his
way back to Ms. Singleton’s house, he fell into some mud that was on the shoulder of the
sidewalk. At the time he was wearing a Star Trek t-shirt, blue cords, and dark shoes. He
told the officers that the shoes he was wearing at the time of the interview were identical
to the shoes that he was wearing that day. He washed his clothes because of the mud but
also washed his shoes as “an afterthought.”

The Defendant said that he had seen the victim the night before at around 6:00
p.m., when he asked her for $20 so he could buy groceries. At that time, the victim told
the Defendant she had some mail for him and a “bag” of items that belonged to him. He
did not take them with him at the time, and told her that he would come back later and
retrieve them, which was part of his intention in stopping by her house on the day she
was found murdered.

The Defendant told officers that Mr. Smith had been into an argument with the
victim, he had a violent nature, and he had been in trouble before.

Law enforcement officers then allowed Ms. Singleton to enter into the room. She
told the Defendant that she let law enforcement officers have his clothing, and he said
that was fine. She asked him directly if he had done this, and he said no and that if he
ever found out who had done it, he would “kill the bastard.” The Defendant repeatedly
and adamantly denied that he had any involvement in the crime. The Defendant
expressed outrage that someone would get away with this crime because the police were
investigating him.

The Defendant offered to give the police his clothing, and he said that police
would not find any blood on his clothing. The Defendant expressed distrust and distain
for law enforcement and the trial court system.

Detective Mann said that he gave Pam Bush, a family friend, a tape recorder to
record the Defendant admitting involvement in this offense. That recording was offered
into evidence. In the recording, the Defendant asked Ms. Bush if Ms. Ramsey had ever
returned. Ms. Bush said that she had bad dreams the night before. The Defendant said
that he had also had an unusual dream about the victim. He said that he witnessed the
victim being beaten to death by an assailant. He said that, in his dream, he saw the
34
murder from the point of view of the killer and that the victim told the person who killed
her that she forgave them. Then she pulled the Defendant close and uttered a riddle about
one end being cut and one end being broken and then mentioned something about a
biblical measurement. The Defendant said he thought that maybe the victim was trying
to communicate with him from the grave. The Defendant said that he dreamed that he
took the hammer away from the assailant and started beating the assailant with it and then
the individual changed into the victim, so he was beating the victim.

During further cross-examination after the recording was played, Detective Mann
testified that the video was a short excerpt of the time the Defendant spent at the police
station. The detective found relevant that the Defendant had been in the Army, and he
agreed that he did not make an attempt to verify this information. The detective also did
not attempt to verify that the Defendant had fallen into a mud puddle by going to look at
the area where he said he fell.

Victoria Ramsey testified that she was the Defendant’s ex-wife. The two had
married in 1986 and became separated in the summer of 1992. Before they separated, the
two lived together with her two sons, Kalon and Joseph. Ms. Ramsey’s mother also
stayed with them intermittently. After their separation, Ms. Ramsey moved with her two
sons into the home of her mother, the victim in this case. Ms. Ramsey recalled that, at
the time of this murder, her sons were fifteen and nine, respectively.

Ms. Ramsey recalled that the victim was seventy-two and having difficulty with
her knees. Accordingly, Ms. Ramsey had purchased a used hospital bed in order to
elevate her mother’s legs in anticipation of her having surgery. Ms. Ramsey said her
mother received monthly checks from Social Security and a small check from an
investment that Ms. Ramsey’s father had made for her mother, which paid for the
victim’s rent.

Ms. Ramsey testified the Defendant never lived in the victim’s home and did not
have a key to their home. He did, however, have some items in boxes and bags at the
residence, as not all of their property had been divided. Ms. Ramsey said that a musician
and her two sons and one of her son’s girlfriends lived on the other side of the duplex
from her mother.

Ms. Ramsey said that on March 4, 1993, she went to Wisconsin in an effort to
prepare to move there. She took her youngest son with her. Ms. Ramsey said her
separation from the Defendant was “amicable” and that, while Mr. Radovich was staying
behind with the victim, it would not have been unusual for him to visit the Defendant,
who had been in his life for six years. At the time, the Defendant was living with Shirley
Singleton.
35
 Ms. Ramsey recalled that the duplex where the victim lived had locks, and she
opined that the victim would not have let the Defendant come visit her while she was
alone. Ms. Ramsey said that after learning of the victim’s death a day after the murder,
she flew home. Upon her return, she spoke with the Defendant whom she asked to take
her to find something to bury her mother in. While the two were driving, the Defendant
told her about a dream he had had about her mother. He told her that he dreamed that he
saw a man with a hammer in his hand beating her mother in the head. He said, in the
dream, he walked up to the man, took the hammer, and began beating the man with the
hammer. The man then became her mother, and the Defendant was beating her mother in
the head with the hammer.

Ms. Ramsey said that she relayed what the Defendant had told her to police, who
gave her recording equipment in an attempt to record the Defendant. Ms. Ramsey then
identified the voices on a recording of the telephone conversation between Ms. Bush and
the Defendant in which the Defendant discussed his dream. She also identified a
recording between her and the Defendant in which the Defendant discussed his dream.
His recount was similar to the version of the dream that he gave Ms. Bush. The
Defendant said that he saw a Caucasian male hitting the victim in with a hammer. In the
dream, the Defendant became enraged at the assailant, grabbed him, and spun him
around, and then it was almost as if the assailant handed the Defendant the hammer. The
Defendant said that he then began beating the assailant with the hammer, and as the
assailant’s face came into focus, he saw that it was actually the victim that he was
beating. He said he felt fear and then calm. The victim motioned him down and
whispered a riddle to him.

Ms. Ramsey said that she lived with Ms. Bush for seven months after this murder.
Ms. Ramsey clarified that nothing was taken from the home.

Ms. Ramsey identified a picture of the telephone line that was tied with knots and
used to bind her mother. She said that, during their marriage, she had seen the Defendant
tie knots similar to the ones depicted in the photograph.

During cross-examination, Ms. Ramsey testified that she and the Defendant were
married for about six years at the time of the murder, but they had been separated for
approximately nine months. She identified her marital dissolution agreement (“MDA”)
with the Defendant and stated that she and her mother jointly owned some property with
the Defendant. The MDA contemplated the parties would divide the nineteen-acre
property. The agreement had to be amended upon her mother’s death and her mother’s
interest in the property went to Ms. Ramsey and Ms. Ramsey’s brother. Ms. Ramsey
agreed that, while she had modified the MDA after her mother’s death, she did not
36
restrict the Defendant’s visitation with her two children. She agreed that after her
mother’s death, she still met with the Defendant and rode in the car alone with him.

Ms. Ramsey agreed that the Defendant’s name was on the lease of her mother’s
home, even though he did not live there. She explained that she and her mother needed
the Defendant to co-sign on the lease to meet the income requirements for the rental.
Some of the Defendant’s things were at the home in boxes by the front door for the
Defendant to retrieve at his convenience. The Defendant also visited her sons, so it was
not unusual for him to be at the home.

Ms. Ramsey testified she had told police about a light switch that appeared broken
near the front door. She said that the switch was not broken before she left to go out of
town but that it was broken after her mother’s murder. Ms. Ramsey agreed that, while
she had spoken with the police, she refused to speak with the Defendant’s investigators.

Ms. Singleton testified that she met the Defendant when her son Larry and the
Defendant’s step-son became friends. The Defendant was, at the time, married to Ms.
Ramsey. Ms. Singleton said that at the time of this murder, the Defendant was living
with her and her son. Ms. Singleton recalled that on March 7, 1993, the day that the
victim was found murdered, she had gone to church. After church, she took a bus to the
hospital to visit her mother and then one of her brothers brought her home at around 3:00
p.m. When she got home, she called a friend that had expressed interest in her mother’s
health.

Ms. Singleton said that while she was on the telephone with her friend, the
Defendant came into the house. He waved in greeting to her and then walked away while
she remained on the telephone. Ms. Singleton recalled that when she finished her
conversation, she saw that the Defendant was sitting at the kitchen table. She noted that
the washing machine was running and she had never known him to do laundry before.
The Defendant told her that he had fallen and gotten mud on a brand new shirt, so he was
laundering it in hopes it would not stain. The Defendant washed his shirt, his pants, and
his shoes.

Ms. Singleton said that she noticed that the Defendant had a scrape near his elbow
and she asked him how he had hurt his arm. He told her that he hurt it when he fell, and
then he went to the bathroom and washed that area of his arm. Ms. Singleton said that
the Defendant was not wearing a shirt, and she also noticed that he had some scratches on
his back. Ms. Singleton said that she never noticed any mud on the Defendant.

Ms. Singleton said that while it did not immediately occur to her, she recalled that
the weather was sunny that day. There was no rain while she waited for her bus to go see
37
her mother. Further, there had not been any rain for several days, so she was unsure
where the Defendant found mud.

That afternoon, the Defendant attempted to call the victim. He said he was getting
worried because the victim was not answering her phone. Ms. Singleton suggested to the
Defendant that, because it was a beautiful day, perhaps the victim was taking a short
walk. Ms. Singleton testified that the Defendant wanted a newspaper, so the two of them
walked to get a newspaper during which time they ran into Mr. Radovich and Larry
Singleton. The four went back to her house and she prepared dinner. After dinner, Ms.
Singleton reminded them it was a school day the following day, and the Defendant told
Mr. Radovich that he needed to go home.

Shortly after Mr. Radovich left, the Defendant got a telephone call. After the
phone call, the Defendant told Ms. Singleton that Mr. Radovich could not get into his
house. Ms. Singleton suggested that they call 911 because the victim may have fallen
and hurt herself. The Defendant told her not to call 911. The Defendant eventually
called 911 and then walked to the victim’s house. Before leaving, the Defendant made a
comment referring to the victim in the past tense, which Ms. Singleton found odd.

Ms. Singleton said that the police took all of them to the police station. She was,
at one point, in a room with the Defendant and asked him what had happened. The
Defendant pointed to a tape recorder and then turned the tape recorder off. Police
eventually took her home and then later came back and searched her home. They
confiscated the Defendant’s clothing, a hammer, and several other items. When the
Defendant was released by police and returned home, she told him what police had taken.
He went to their hallway and looked for his hammer and then said, laughing, “[T]hey
took your hammer, they didn’t take mine.”

Ms. Singleton testified that she asked the Defendant about the scratches on his
back, and he told her that he had an itch on his back and that he had used his hammer to
scratch the itch.

During cross-examination, Ms. Singleton agreed that when she spoke with police
in 1993 she was unsure whether the substance on the Defendant’s elbow was mud or
blood. She agreed that she was still uncertain whether it was blood or mud. She said
that, before they left to get the newspaper, the Defendant took his clothing and shoes out
of the washing machine and hung them on an indoor clothesline. She agreed the
Defendant asked Mr. Radovich to call him when he got home. When Mr. Radovich
called because he could not get into the home, the Defendant said he needed to go there
in case something had happened to the victim. Ms. Singleton agreed she had told the
police that the scratches on the Defendant’s back looked like fingernail scratches.
38
 Ms. Singleton answered some questions regarding when she first arrived at the
victim’s home after Mr. Radovich had called. She said the police were present when she
arrived, and that Mr. Radovich was in the backseat of a police cruiser. Officers let Mr.
Radovich go and sit with Ms. Singleton and the Defendant, and the Defendant put his
arms around Mr. Radovich’s shoulders. Ms. Singleton did not recall any blood on Mr.
Radovich’s clothing.

Ms. Singleton said that she and the Defendant were taken in separate police cars to
the police station, where they were interviewed separately. Officers then placed Ms.
Singleton in the same room with the Defendant, in hopes she could get him to talk about
what had happened. Eventually, officers took her home while the Defendant remained at
the station, and, early the next morning, officers executed a search warrant of her house.
The Defendant arrived home later in the morning after the search was complete.

Ms. Singleton agreed that the Defendant never confessed to her that he committed
this murder.

Linda Littlejohn, an agent with the TBI crime laboratory, testified as an expert in
the field of microanalysis. She said that she examined some of the evidence in this case,
including the Defendant’s and the victim’s clothing. She attempted to catch and analyze
any debris she found on the clothing. She found fibers consistent with the victim’s
clothing on the Defendant’s clothing, including his jacket.

During cross-examination, Agent Littlejohn agreed that it was possible to have
fiber transfer from a secondary source, meaning that if someone sat in a chair, then left,
the next person to sit in the chair could have fibers from the first person’s clothing on
their own clothing. The agent agreed that the fibers that she found on the Defendant’s
shoe were not consistent with the victim’s clothing. In addition to the fibers consistent
with the victim’s clothing, Agent Littlejohn also found other fibers on the Defendant’s
pants. Agent Littlejohn said that none of the fibers on the victim’s clothing was
consistent with the Defendant’s clothing.

Adele Lewis, the Deputy State Chief Medical Examiner for the Tennessee
Department of Health, testified as an expert in forensic pathology. Dr. Lewis testified
that she did not perform the victim’s autopsy, but that Dr. Harlan, who was medical
examiner at the time of the victim’s death but since had died, performed the autopsy. Dr.
Lewis identified Dr. Harlan’s report, which the trial court admitted into evidence. Dr.
Lewis said she reviewed Dr. Harlan’s report, photographs of the victim’s injuries, Dr.
Harlan’s written notes, as well as his diagrams of the victim’s injuries. From all this
information, Dr. Lewis determined that the victim’s cause of death was blunt force
39
trauma to the head, suffocation by a plastic bag, suffocation by ligature strangulation, and
blunt force trauma to the chest. Dr. Lewis identified photographs of the victim’s injuries.
Dr. Lewis agreed that the victim’s injuries were consistent with a hammer. Dr. Lewis
testified that the victim had multiple broken ribs on both sides of her body and that her
spine had become separated, injuries which in themselves could have caused her death.
Her injuries were consistent with either a hammer or a foot. Dr. Lewis said that the
victim was in a state of rigor mortis at the time of autopsy, meaning that her death
occurred approximately not less than thirty minutes and not more than thirty-six hours
before the exam.

During cross-examination, Dr. Lewis conceded that there was no way to recreate
Dr. Harlan’s actual examination of the victim’s body and the resulting report and
photographs. Dr. Lewis agreed that in 2005, Dr. Harlan’s medical license was revoked
by the State of Tennessee. Dr. Lewis agreed that Dr. Harlan listed four causes of death
and that she could not say which of those was the actual cause of death. Dr. Lewis
agreed that she could not identify what object caused the victim’s blunt force trauma. Dr.
Lewis agreed that the victim could have died either March 6 or March 7, 1993, according
to the findings in Dr. Harlan’s report.

Glen Arnold, a criminal investigator with the Public Defender’s Office, testified
for the defense that he visited the police property room on January 6, 2015 and April 7,
2016. He identified photographs that he took on both occasions. Those photographs
supported his testimony that some of the evidence bags related to the case were torn and
not resealed. Mr. Arnold noted that, when he viewed the evidence on January 6, 2015
one piece of evidence, the Defendant’s pants, had some fibers on the knee area, which he
photographed. Mr. Arnold said that, when he returned to reexamine the property on
April 7, 2016, some of the evidence had been re-bagged.

Mr. Arnold testified that when he viewed evidence on January 6, there appeared to
be samples from a separate case. He saw vials of blood and a vial of saliva that both had
a different complaint number from a different year. The biological evidence was missing
when he viewed the evidence on April 7.

During cross-examination, Mr. Arnold testified that he did not have a photograph
of the biological evidence that had gone missing. He said that he took a photograph of
the evidence but that he did not have it with him at trial.

William Watson, a molecular biologist who testified as an expert in forensic DNA
analysis and forensic serology, said that the type of testing performed by Cellmark in this
case was more susceptible to contamination. He further explained that not all
laboratories calculate statistics using the same method. Dr. Watson said he would not
40
have calculated the statistics the same as Ms. Nassir because of the presence of the
additional peak, which indicated that there was an additional contributor. Reviewing the
data, Dr. Watson explained that Cellmark only had the equivalent of the amount of DNA
that you would find in two cells, or a miniscule amount of DNA to test. The tape had an
even smaller amount of DNA to test.

Dr. Watson testified that, even if the DNA under the victim’s fingernails came
from the Defendant, that evidence only showed the victim’s fingernails at some point
came into contact with something that had the Defendant’s DNA on it. He said studies
show that it is not uncommon to find foreign DNA on a person and it is usually
contributed by someone with whom they cohabitate.

Dr. Watson testified that the DNA on the tape showed the presence of at least
three male contributors. Dr. Watson said it was possible for the DNA to be contaminated
without Cellmark knowing, depending on how the crime scene had been processed. The
precautions in 1993 for processing a crime scene were not as focused on preventing
contamination.

Dr. Watson testified that a person sheds millions of skill cells onto their clothing.
If someone else handled their clothing, they may have come into contact with that DNA.

During cross-examination, Dr. Watson testified that Cellmark was an accredited
lab and that Y-STR testing was an appropriate technique to use when there was a low
quantity of DNA. He said that DNA can be found under someone’s fingernails if they
scratch another person. Dr. Watson agreed that Ms. Nassir had a more extensive
background in Y-STR testing than he did, in addition to more hands-on experience.

Based upon this evidence, the jury found the Defendant guilty of first degree
premeditated murder. It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it: (1) did not
dismiss the charge against him based on pre-indictment delay; (2) did not dismiss the
charge against him based on post-indictment delay; (3) denied his motion to suppress
evidence; (4) made several erroneous evidentiary rulings; and that, (5) the evidence is
insufficient to sustain his conviction; and, (6) he is entitled to a new trial based upon the
cumulative effect of the errors.

A. Pre-Indictment Delay

41
 The Defendant contends that the delay of more than twenty years between the
commission of the offense and the issuance of the indictment in this case violated his
right to due process of law. He asks this court to dismiss his indictment. The State
counters that the Defendant is not entitled to relief because he failed to establish either
that he was prejudiced by the delay or that the State caused the delay to gain a tactical
advantage.

Regarding the pre-indictment delay, the trial court found:

The offense was committed in March 1993. An investigation by
Metro Police ensued thereafter. Detective James Arendall from the cold
case unit began investigating the crime in 2010 and DNA testing was
initiated based on his investigation. The DNA testing identified the
Defendant in 2012 as a potential source. The indictment was returned on
July 23, 2013.

The Court agrees with the [D]efendant that sufficient delay occurred
in this case to trigger due process inquiry. State v. Carico, 968 S.W.2d 280
(Tenn. 1998). Indeed, the approximate twenty (20) year delay was lengthy.
The Court agrees that the passage of this many years may be prejudicial to
the defense, but it also appears to be more disadvantageous to the State in
this matter. To show prejudice, the [D]efendant points to the death of the
Medical Examiner, Dr. Harlan, the retirement of multiple police officers,
neighborhood changes, fading memories, and incomplete recordings.
However, no actual prejudice was shown at the hearing, and there is no
indication that the tangible evidence, mentioned by the [D]efendant as
incomplete, will be admissible at trial. Additionally, the Court finds that
the State did not intentionally delay the prosecution in order to obtain a
tactical advantage. While there does appear to be gaps in time, the record
reflects that the police continued to investigate the crime through the cold
case unit and advances in DNA technology eventually proved successful in
identifying the [D]efendant as a potential source of DNA found at the
scene. However, the DNA sample is somewhat degraded, but a jury will
determine the weight to be given to the DNA evidence at trial. Further,
utilizing new DNA technology is not delaying to gain a tactical advantage
as the defendant contends. Rather, it is a conscientious way for the State to
identify a suspect and to avoid arresting someone before the evidence
supports that decision.

The Fifth and Fourteenth Amendments to the United States Constitution and
article I, section 8 of the Tennessee Constitution provide a criminal defendant with the
42
right to due process. State v. Gray, 919 S.W.2d 668, 671 (Tenn. 1996).

Before an accused is entitled to relief based upon the delay between the
offense and the initiation of adversarial proceedings, the accused must
prove that (a) there was a delay, (b) the accused sustained actual prejudice
as a direct and proximate result of the delay, and (c) the State caused the
delay in order to gain tactical advantage over or to harass the accused.

State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990); see State v. Utley, 956
S.W.2d 489, 495 (Tenn. 1997); United States v. Marion, 404 W. S. 307 (1971). Prejudice
to a defendant is the most critical factor. State v. Gilley, 297 S.W.3d 739, 755 (Tenn.
Crim. App. 2008).

The record in this case reflects that the offense occurred on March 6 or March 7,
1993, but the Defendant, who was the sole suspect from the time of the killing, was not
indicted for first degree premeditated murder until July 23, 2013. The Defendant has
established a lengthy pre-indictment delay that implicates the due process right to a fair
trial.

The Defendant must next establish that he sustained actual prejudice as a direct
and proximate result of the delay. Relative to prejudice, the Defendant offered that the
Chief Medical Examiner who had performed the victim’s autopsy had died during the
delay. His report was entered through the new medical examiner, but the defense was
unable to cross-examine Dr. Harlan about the fact that his medical license had been
revoked based on professional transgressions, including misidentifying victims,
incorrectly determining the cause of death, and concealing that he contaminated samples.
The Defendant said he also would have cross-examined Dr. Harlan about his failure to
estimate the victim’s time of death and inadequacies in his autopsy report. The
Defendant also offered that two police officers involved in the investigation, Detective
Bernard and Detective McElroy, had also died between the time of this offense and the
Defendant’s indictment.

The Defendant further asserts he was prejudiced by the delay because numerous
pieces of evidence had disappeared from the Metro PD property room before his
indictment. DNA evidence was completely consumed during the delay, and the crime
scene was altered when the house in which the murder occurred was completely
remodeled. The Defendant asserts the delay resulted in his inability to assert an alibi
defense because his employer could no longer provide the Defendant with his work
records.

We conclude that the delay did not prejudice the Defendant in this case. His
43
arguments, while compelling, do not amount to prejudice. Dr. Harlan’s report included
factual findings, which the Defendant’s investigator agreed could be interpreted by the
then-sitting medical examiner. The deceased law enforcement officers created reports
that did not contradict any of the other officers’ reports or testimony. The consumption
of the DNA evidence was a result of duplicative testing. There was no evidence the
house alterations prejudiced the Defendant and, finally, as to his work records, he
admitted that he was not working on March 7, the day this crime almost certainly
occurred. The Defendant said that he saw the victim alive at 6:00 p.m. on March 6 when
he went to her home and asked her for grocery money. He then said he went to the
grocery store and took his groceries home. He made no allegation that, later in the
evening after bringing groceries to his home on March 6, he went to work. Accordingly,
any work records for earlier in the day, before he says he saw the victim alive at 6:00
p.m., are not relevant to his defense.

In any event, the Defendant has failed to establish that the pre-indictment delay
was caused by the State in order to gain tactical advantage over or to harass the
Defendant. To the contrary, the evidence implies that the State would not proceed with
this case until it had some link between the Defendant and the crime scene.
Advancement in DNA technology meant that Cellmark could test the small amount of
DNA available under the victim’s fingernails and offer evidence that the Defendant was
the potential source of that DNA. Months after obtaining the Cellmark report, the State
sought and obtained an indictment against the Defendant. We conclude the Defendant
has not proven that he is entitled to a dismissal of his indictment based upon pre-
indictment delay.

We further note that the Defendant in his brief asks us to abandon the requirement
set forth by the United States Supreme Court in Marion, 404 U.S. 307 (1971) and the
Tennessee Supreme Court in Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990). He
contends the requirement that a defendant show the State caused a delay in order to gain a
tactical advantage places a daunting, almost insurmountable burden on the accused. This
court is bound by the decisions of the United States and Tennessee Supreme Courts.
Owens v. State, 13 S.W.3d 742, 764 (Tenn. Crim. App. 1999) (citing State v.
Middlebrooks, 995 S.W.2d 550 (Tenn. 1999)). We therefore may not overturn settled
precedent.

B. Post-Indictment Delay

The Defendant contends the trial court erred when it denied his motion to dismiss
based on a violation of his right to a speedy trial. He asserts the delay in his case, while
caused in part by his own attorneys, was attributable to the State because there was a
“systemic breakdown” of the Public Defender’s Office. The State counters that this was
44
a complex case, one in which it was appropriate for the Defendant’s attorneys to ask for
more time. The State asserts that there is no systemic breakdown in the Public
Defender’s Office and that the delay in the case is attributable to the Defendant.

With regard to the post-indictment delay, the trial court examined the factors
relevant to whether a delay over a year violated the Defendant’s right to speedy trial. The
trial court found:

Length of Delay
In this case, the Court finds the presumptive time period of over one
year has passed. The delay has been approximately three years and one
month between the time the [D]efendant was indicted to the current date
and twenty-nine months since his arraignment. The Court recognizes
where a case is simple and relatively easy to prosecute, delay will weigh
more heavily against the State because there is less excuse for delay.
Barker v. Wingo, 407 U.S. at 531. Here, simplicity is not present. This is a
complex, cold case with moving parts in terms of witnesses and DNA
evidence. However, this factor weighs in the [D]efendant’s favor.
Therefore, the Court will consider the remaining factors.

Reason for Delay
The [D]efendant contends that the State of Tennessee’s affirmative
decision to inadequately fund the Metro Nashville Public Defender’s Office
has created a systemic breakdown, and because of that breakdown the
[D]efendant’s right to a speedy trial has been violated. Further, the
[D]efendant asserts that this delay should be attributed to the State for the
lack of funding.

The Court disagrees with this contention. Because “the attorney is
the [Defendant’s] agent when acting, or failing to act, in furtherance of the
litigation,” delay caused by the defendant’s counsel is also charged against
the defendant. Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546,
115 L.Ed.2d 640 (1991). The same principle applies whether counsel is
privately retained or publicly assigned, for “[o]nce a lawyer has undertaken
the representation of an accused, the duties and obligations are the same
whether the lawyer is privately retained, appointed, or serving in a legal aid
or defender program.” Polk County v. Dodson, 454 U.S. 312, 318, 102 S.
Ct. 445, 70 L.Ed.2d 509 (1981). “Except for the source of payment,” the
relationship between a defendant and the public defender representing him
is “identical to that existing between any other lawyer and client.” Ibid.
Unlike a prosecutor or the court, assigned counsel ordinarily is not
45
considered a state actor. Polk County v. Dodson, 454 U.S. 312, 325, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981).

However, the general rule attributing to the defendant delay caused
by assigned counsel is not absolute. Delay resulting from a systemic
“breakdown in the public defender system,” 955 A.2d, at 1111, could be
charged to the State. Cf. Polk County, 454 U.S., at 324-325, 102 S. Ct. 445.
Although the United States Supreme Court did not define the term
“systemic breakdown” in Vermont v. Brillon, 556 U.S. 81, 94 (2009), in
which the [D]efendant so heavily relies, this Court need not determine its
definition today. Delays caused by defense counsel are properly attributed
to the defendant, even where counsel is assigned. Id. Further, “any inquiry
into a speedy trial claim necessitates a functional analysis of the right in the
particular context of the case.” Barker v. Wingo, 407 U.S. 514, 522 (1972).

In the Court’s opinion, the facts and details of this particular case are
where the inquiry should be focused and where the decision properly rests.
According to both Georgia Sims and Kevin Griffith, they have not rendered
defective or unethical representation in every case. Kevin Griffith even
stated that he has done a fantastic job for some clients. Therefore, this
Court must look to the facts in this particular case to determine whether the
[D]efendant’s rights have been violated and not solely on the overall office
problems. Notwithstanding that inquiry, after review of the Spangenberg
study, affidavits detailing caseload information from the attorneys in the
Metropolitan Davidson County Public Defender’s Office, caseload
information submitted by the State, and the testimony from the attorneys
and Professor Lefstein, a legitimate question has been raised as to whether
the Metropolitan Davidson County Public Defender’s Office is understaffed
and or underfunded based on the sheer volume of cases.2 However, this
Court is not in a position to make that determination nor is it necessary in
this matter. What the Court can affirmatively say is that the underfunding
of the Metropolitan Davidson County Public Defender’s Office is not the
culprit of this delay and did not lead to the violation of the [D]efendant’s
right to a speedy trial.

FN2 Both the caseload statistics submitted by the
Metropolitan Davidson County Public Defender’s Office and
the State have inaccuracies or deficiencies. The caseload
information from the public defender’s office does not
account for cases that were assigned in the prior fiscal year
that are still pending or cases wherein an attorney acts as
46
 “second chair.” The caseload statistics from the State, while
they do show pending cases assigned to the public defender
including those from prior years, the data only shows a
snapshot of cases assigned to the public defender on a single
day and not the entire year. Both compilations also rely on
humans to input the correct data into each system so the
element of human error is present.

From the record in this case, the trial has been delayed due to
multiple continuances acquiesced in or requested by the [D]efendant and
for his benefit. The [D]efendant was indicted on July 23, 2013. Georgia
Sims was appointed to represent the [D]efendant on the date the
[D]efendant was arraigned in April 2014. From the beginning, she worked
with Kevin Griffith because he could split the workload with her evenly. A
jury trial was set by agreement in June 2015. The [D]efendant did not
request a trial sooner than that. Nothing was filed to object to the trial date.
The [D]efendant did not object to the State’s request for a two (2) month
continuance to August 2015. In August 2015, the [D]efendant requested a
continuance in light of newly discovered evidence. After the August
continuance, [Ms. Sims] requested funds for another investigator. This
request was approved and supplemental requests for funding were also
approved by the Court . . . . The State and defense counsel picked a trial
date eight (8) months later. The Court was not made aware of any
objections. There was nothing filed to indicate an objection. The first
speedy trial motion was filed at the end March 2016. In April 2016, the
[D]efendant said he would agree to a continuance if he was let out of
custody. The [D]efendant did not object to the August or April
continuances in court. The [D]efendant never told the Court that he did not
want the public defenders as his lawyers. Mrs. Sims never told or asked the
Court to be relieved, and the [D]efendant declined new representation. The
trial was continued until September 19, 2016, and defense counsel assured
the Court they will be ready for trial.

This is a complex, cold case, a homicide. It is not uncommon for a
murder trial to be continued multiple times especially one that is twenty
years old. Georgia Sims and Kevin Griffith were appointed and it appears
from their time log they went to work as diligent attorneys would and as
any client would request of their attorney. (Exhibit 4, Reported Time for
2014-CC-869). To date, the attorneys have logged seven hundred sixty
hours and twenty-two minutes working on this case. (Exhibit 4, Reported
Time for 2014-CC-869).3 Both Professor Lefstein and Georgia Sims
47
emphasized the lack of resources available, specifically the lack of
investigators in the public defender’s office, but there are two investigators
assigned specifically to this case: 1) Glen Arnold from the public
defender’s office; and 2) Amber Treat from A-K Investigations.

FN3 This record does not appear to include the time spent by
Amber Treat investigating this matter. Based on the Court’s
orders granting funding for this Investigation, it appears to be
a significant amount of time. It also may not include jail
visits and any unlogged or untracked time.

In addition, Professor Lefstein did not provide a test to aid the Court in
determining whether the time spent by the attorneys in this case was
sufficient and appropriate. However, based on the proof before the Court,
even if the office is experiencing symptoms of a breakdown, there is not
one present in this matter.

The [D]efendant cites New Mexico v. Stock, 140 N.M. 676 (2006),
among others, in support of his position. However, this case involved a
defendant whose counsel failed to pursue the issue of his competency and
there was a complete lack of attention to the case by both the State and
defense counsel. Here, the [D]efendant is competent and acquiesced and or
requested the continuances. Additionally, these continuances were for his
benefit. Both the State and defense counsel have pursued this case
diligently. There was not a complete lack of attention, rather the opposite.

This case required time to properly investigate, prepare, and
eventually litigate. Considering the life of this case, the reasons for the
delay weigh against the [D]efendant and must be attributed to the
[D]efendant and not the State. A contrary conclusion by this Court could
encourage appointed counsel to delay proceedings by seeking unreasonable
continuances, hoping thereby to obtain a dismissal of the indictment on
speedy-trial grounds. Vermont v. Brillon, 556 U.S. 81, 93 (2009).

Assertion of Right
In February 2016, the [D]efendant filed a motion to be appointed co-
counsel and to proceed with trial in April. In March 2016, Mrs. Sims, on
the [D]efendant’s behalf, filed motion to dismiss or in the alternative to
continue the trial. The motion to dismiss before the Court is the
[D]efendant’s first assertion of his right to a speedy trial.4 It was brought to
the Court’s attention in March 2016. The transcript of that hearing
48
 indicates the [D]efendant understood the continuance request and
acquiesced in that request. (Exhibit 12, p. 21) This factor weighs in favor
of the State.

FN4 If the assertion was made sooner, counsel could have
apprised the Court of the issues and new private counsel
could have been appointed in this matter.

Prejudice
Finally, the Court must consider the prejudice to the [D]efendant
caused by the delay. To show prejudice, the [D]efendant points to the
death of the Medical Examiner, Dr. Harlan, the retirement of multiple
police officers, neighborhood changes, fading memories, and incomplete
recordings. However, no specific proof of prejudice and how it negatively
impacts the [D]efendant was presented at the hearings. In addition, these
continuances have allowed this complex murder case to be properly
investigated and prepared for trial. Therefore, the [D]efendant has failed to
establish prejudice.

Conclusion
Based upon the foregoing analysis and in consideration of all of the
speedy trial factors, the [D]efendant’s motions are denied, and the Court
will allow this case to proceed to trial on September 19, 2016.

“The right to a speedy trial arises under the Sixth Amendment to the constitution
of the United States made applicable to the State by the Fourteenth Amendment . . . and
Article 1, § 9 of the Constitution of Tennessee . . . .” State v. Bishop, 493 S.W.2d 81, 83
(Tenn. 1973). The right to a speedy trial is “amorphous,” “slippery,” and “necessarily
relative.” Barker v. Wingo, 407 U.S. 514, 522 (1972). “‘The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon circumstances.’” Id.
at 522 (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905). In Barker, the United States
Supreme Court established that courts should engage in a “balancing test, in which the
conduct of both the prosecution and the defendant are weighed.” Id. at 529. Some of the
factors a court should weigh include “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Id.

We review a trial court’s determination of whether a defendant’s right to a speedy
trial was violated under an abuse of discretion standard. State v. Hudgins, 188 S.W.3d
663, 667 (Tenn. Crim. App. 2005); State v. Easterly, 77 S.W.3d 226, 236 (Tenn. Crim.
App. 2001). Our review includes evaluating claims of a speedy trial violation by
considering the four-part balancing test set forth in Barker v. Wingo. See State v. Bishop,
49
493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting the Barker analysis in Tennessee). The
Barker factors are: (1) the length of delay; (2) the reason for the delay; (3) the
defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant
because of the delay. Barker, 407 U.S. at 530; State v. Simmons, 54 S.W.3d 755, 758-59
(Tenn. 2001).

1. Length of Delay

The first factor we must consider is the length of delay. The length of delay is
both the threshold question in the speedy trial analysis and a factor to be weighed with
the other three Barker factors. State v. Wood, 924 S.W.2d 342, 347 (Tenn. 1996)
(utilizing the balancing analysis to determine that a thirteen-year delay in trial did not
violate the defendant’s right to a speedy trial). “‘Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go
into the balance.’” State v. Baker, 614 S.W.2d 352, 355 (Tenn. 1981) (quoting Barker,
407 U.S. at 530). The reasonableness of the length of the delay depends on the
complexity of the case. Barker, 407 U.S. at 530. “[T]he presumption that the delay has
prejudiced the defendant intensifies over time.” Simmons, 54 S.W.3d at 759.

The trial court weighed this factor in favor of the Defendant. The Defendant was
indicted on July 23, 2013, and he was tried on September 19 - 23, 2016. While this delay
of three years and two months, as the Defendant concedes, “can be tolerated for a more
complex case,” a category into which this case clearly falls, this length of delay is
sufficient to trigger the speedy trial analysis. This period of delay is not necessarily
unreasonable compared to other cases. See Id.; compare Wood, 924 S.W.2d at 346
(thirteen-year delay); Doggett, 505 U.S. at 653 (six-year delay). We weigh this factor
slightly in favor of the Defendant.

2. Reason for the Delay

The reason for the delay generally falls into one of four categories: (1) intentional
delay to gain a tactical advantage over the defense or delay designed to harass the
defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and
effective prosecution of the case; and (4) delay caused, or acquiesced in, by the defense.
Wood, 924 S.W.2d at 346-47 (applying Barker). In this case, the defense team,
consisting of government-appointed counsel, caused or acquiesced to several of the
delays, placing this case into the fourth category.

In Vermont v. Brillon, 556 U.S. 81 (2009), the United States Supreme Court
interpreted the Barker opinion discussing the reason for the length of delay in the context
of government-appointed counsel. The Court first instructed that “‘[I]n applying Barker,
50
we have asked “whether the government or the criminal defendant is more to blame for
the delay.’” Brillon, 556 at 90 (quoting Doggett v. United States, 505 U.S. 647, 651
(1992). The Court stated that delay caused by the defense weighs against the defendant:
“[I]f delay is attributable to the defendant, then his waiver may be given effect under the
standard waiver doctrine.” Id. (citing Barker, 407 U.S. at 529). Importantly, this rule
ensures that defendants do not employ delay as a “defense tactic” because delays may
work to the accused’s favor in that witnesses may become unavailable or their memories
may fade. Id. The attorney representing the defendant is the defendant’s agent when
acting or failing to act in furtherance of the litigation, and delay caused by the
defendant’s counsel is also charged against the defendant. Id. This rule applies whether
defense counsel is privately retained or publicly appointed. Id. The Court pointed out,
however, that this rule is not absolute. Id. at 94. Delay resulting from a “systemic
‘breakdown in the public defender system’ . . . could be charged to the State.” Id.
(quoting Vermont v. Brillion, 955 A.2d 1108, 1111 (Vt. 2008)

The Court in Brillon did not expound on what qualified as a “systemic
breakdown” in the public defender’s office. It, however, found that the three-year delay
in trial, during which time six different attorneys represented Mr. Brillon, did not show
that Mr. Brillon was denied his constitutional right to a speedy trial. Brillon, 556 U.S. at
94 (weighing Mr. Brillon’s disruptive behavior heavily against him).

In 2013, the United States Supreme Court initially granted certiorari in a case
squarely on point to address “[w]hether a state’s failure to fund counsel for an indigent
defendant for five years, particularly where failure was the direct result of the
prosecution’s choice to seek the death penalty, should be weighed against the state for
speedy trial purposes.” Boyer v. Louisiana, 569 U.S. 1702 (mem) (2013). The court
ultimately dismissed the writ as “improvidently granted” in a per curiam order. In the
order the Court stated:

A State’s failure to provide adequate funding for an indigent’s
defense that prevents a case from going to trial is no different than [delay
resulting from a systemic breakdown in the public defender system and can
be charged to the State]. Where a State has failed to provide funding for
the defense and that lack of funding causes a delay, the defendant cannot
reasonably be faulted. See Barker, 407 U.S. at 531. Placing the
consequences of such a delay squarely on the State’s shoulder is proper for
the simple reason that an indigent defendant has no control over whether a
State has set aside funds to pay his lawyer or fund any necessary
investigation. The failure to fund an indigent’s defense is not as serious as
a deliberate effort by the State to cause the delay. But States routinely
make tradeoffs in the allocation of limited resources, and it is reasonable
51
 that a State bear the consequences of these choices.

Id. 569 U.S. at 246 (citation omitted).

Other courts have attempted to interpret the “systemic breakdown” phrase in
Brillon when faced with the inquiry of whether a defense counsel’s actions were
imputable to the State based upon a systemic breakdown in the public defender’s office.
One such case, Weis v. State, 694 S.E.2d 350, 355 (2010), cert denied Weis v. Georgia,
562 U.S. 850 (2010), discussed this issue in context of a three-and-one-half-year delay
between the defendant’s arrest and placement of his case on a trial calendar. That court
held:

Thus, although there were funding issues that had contributed to the
delay up to the point of November 26, 2007 hearing, the “public defender
system” had not broken down from the lack of funding at that point, as
there were attorneys available within the public defender system to
continue the case. Indeed, there can be no “systemic breakdown in the
public defender system” . . . when there are still attorneys within that
system who are available to represent the criminal defendant.

Id. Accord Phan v. State, 723 S.E.2d 876, 882-83 (2012).

In People v. Superior Court (Vasquez), 27 Cal. App. 5th 36 (Cal. App. Nov. 30,
2018), the California appellate court addressed whether a seventeen-year delay violated a
defendant’s right to a speedy trial where the defendant was confined for that period of
time. The court concluded that two to three years of that delay was caused by a
“systemic breakdown in the public defender system” and, considering that, along with the
oppressive nature of his confinement for 17 years, his limited ability to assert his right to
a speedy trial, and the presumptively prejudicial seventeen-year delay, the trial court did
not err when it dismissed the indictment against him. Id.

The Supreme Court of New Mexico attempted to interpret this phrase in 2017.
State v. Ochoa, 406 P.3d 505, 514 (N.M. 2017). In that case the court noted that other
courts, like Weis quoted above, have interpreted “systemic breakdown in the public
defender system” to describe problems that are not only institutional in origin, but
sufficiently serious to justify weighing the delay against the government. Ocha, 406 P.2d
at 514 (quoting Weis, 694 S.E.2d at 354-55 for the proposition that funding problems did
not amount to a breakdown of the entire public defender system when “lack of funding . .
. was not the sole factor contributing to the delay) and United States v. Young, 657 F.3d
408, 414-15 (6th Cir. 2011), which rejected the argument that the district court’s
untimeliness was a “systemic failure” that should weigh against the State). The Ochoa
52
court went on to hold that a government furlough, which impacted one day of a three-day
jury trial and resulted in an additional two months, of a total two-year, delay was not the
type of “systemic breakdown” contemplated by the Brillon Court. (citing also State v.
Brown, 871 N.W.2d 867 (Wi. 2015) (a non-precedential case concluding that there was
no systemic breakdown when its public defender department left an unlicensed attorney
on a case for a short period of the delay).

Other cases have examined the phrase “systemic breakdown” in the public
defender’s office. Castellanos v. State, 366 P.3d 1279, 1301 (WY. 2016) (finding no
systemic breakdown when there was a 927-day delay, 357 days of which the defendant
was assigned counsel who was not qualified to try a capital case); State v. Redlich, 321
P.3d 82, 146 (Mt. 2014) (holding that a delay of 485 days between the defendant’s arrest
and trial did not violate his constitutional rights to a speedy trial even though it was
caused, in part by turnover at the Office of the Public Defender).

In State v. Ollivier, 312 P.3d 1, 14 (Wash. 2013), the Washington Supreme Court
found that a twenty-three-month delay did not violate the Defendant’s right to a speedy
trial, even though he objected to some of the continuances sought by his defense counsel.
In so doing, the court stated:

Many courts hold that even where continuances are sought over the
defendant’s objection, delay caused by the defendant’s counsel is charged
against the defendant under the Barker balancing test if the continuances
were sought in order to provide professional assistance in the defendant's
interests. E.g., Bergman v. Cates, No. EDCV 12-00339-AG, 2012 WL
5328717 (C.D. Cal. Aug. 10, 2012) (unpublished); Cox v. Warden, No.
1:10-cv-117, 2011 WL 1980169, at *5 (S.D. Ohio Apr. 26, 2011)
(unpublished); State v. Ward, 227 Kan. 663, 667, 608 P.2d 1351 (1980)
(defendant objected to continuances and argued that timing of trial was a
decision that must be left to the defendant; court disagreed, saying that
“[t]he matter of preparation and date of the trial and the type of defense
relied upon are clearly strategical and tactical decisions which require
trained professional skill and judgment which must rest with the lawyer”;
no violation of Sixth Amendment right to a speedy trial); Taylor v. State,
557 So.2d 138, 141-42 (Fla. Dist. Ct. App. 1990) (noting tension between
the right to speedy trial and the constitutional right to competent, prepared
counsel; finding no violation of the constitutional right to speedy trial
where counsel sought a continuance over defendant’s objections),
overruled on other grounds by Heuss v. State, 687 So.2d 823 (Fla. 1996);
State v. Taylor, 298 S.W.3d 482 (Mo. 2009) (counsel obtained
continuances over objection of defendant to prepare for trial; lengthy delay;
53
 defendant effectively asserted constitutional right to speedy trial; no
violation of Sixth Amendment); see also United States v. Brown, 498 F.3d
523, 531 (6th Cir. 2007) (delays resulting from defense counsel’s need to
prepare are attributable to the defendant); People v. Lomax, 49 Cal.4th 530,
556, 234 P.3d 377, 112 Cal. Rptr. 3d 96 (2010) (when defendant refuses to
waive time despite attorney’s need for time to more prepare, conflict
between statutory and constitutional rights to a speedy trial and Sixth
Amendment right to competent, adequately prepared counsel arises; thus,
when counsel seeks reasonable time to prepare and delay is for the
defendant’s benefit, a continuance over the defendant’s objection is
justified).

Id.

We begin our analysis with the principle that whether the Defendant’s due process
rights were violated because he did not receive a speedy trial is dependent on the facts
and circumstances of each individual case. The attorneys representing the Defendant in
this case testified that they provided excellent representation for some of their clients but
others “fell through the cracks.” Ms. Sims, as she should be, was very proud of some of
the work that she had done, and Mr. Griffith felt he had done a fantastic job for some of
his clients. We cannot overstate our respect for the representation provided by the
Nashville Public Defender and those in her office in the face of their heavy caseloads.
That said, our inquiry is not one based on whether the Nashville Public Defender’s Office
should receive additional funding. In this case, our inquiry is limited to whether lack of
funding led to a “systemic breakdown” of the Public Defender’s Office in this case, so as
to warrant a dismissal of the indictment against this Defendant.

The evidence presented shows the Defendant had consistent counsel from the time
of his arraignment until his trial. There were also two investigators assigned to his case,
and, at defense counsels’ request, additional funding was provided by the trial court for
the second investigator. Defense counsel and one of the investigators logged at least 760
hours of time on the Defendant’s case, and that time did not include the time spent by the
second investigator, whom the trial court said logged a “significant” amount of time on
the case.

The public defenders offered evidence regarding their caseloads, other supervisory
duties, and desire for more positions to better represent the multitude of clients that they
serve. While their requests seem reasonable in light of that evidence, it also appears that
they have performed well under the budget constraints in which they find themselves.
While the courts of Tennessee have never defined the term “systemic breakdown” in this
context, we find no evidence that the Davidson County Public Defender’s Office had any
54
breakdown in this case, even with their funding constraints, and to the contrary provided
competent, thorough representation for the Defendant.

The record shows that the Defendant was arraigned on April 23, 2015, and his first
trial was set for June 2015. At the June 2015 setting, some of the State’s witnesses were
not present and by Ms. Sims’ testimony the defense was not ready for trial, so the
Defendant agreed to continue the case until August 2015. This two-month delay is
slightly more attributable to the State. Both parties were prepared to proceed at the
August trial date, but Ms. Sims said that she learned that there might be remaining DNA
evidence that she could have tested. She asked for a continuance in order to research this
issue and funds for another investigator, and the trial court granted both requests. The
trial was reset for April 2016. This continuance was in the Defendant’s best interest, so
that eight-month portion of the delay is attributable to him. Within this period, however,
the Defendant filed a motion to be appointed as co-counsel in February 2016 and a
motion to dismiss based upon speedy trial violation in March 2016. Ms. Sims informed
the trial court in April 2016 that she was unprepared for trial because of her workload,
and the trial court reset the case for September 1, 2016. During that time, the trial court
heard evidence on the speedy trial motion regarding both pre and post indictment delays.
According to Ms. Sims, in April 2016, the Public Defender shifted Ms. Sims and Mr.
Griffith’s caseloads to others, so that they could be prepared for trial and provide
adequate representation to the Defendant. By September, she was by all accounts fully
prepared and extremely effective during the trial, as was her co-counsel Mr. Griffith.

The need and justification for additional funding aside, the Public Defender’s
Office in this case operated in accordance with how an effective Public Defender’s Office
operates. Once the Defendant’s attorneys expressed their inability to provide the
Defendant’s case enough time, their caseloads were shifted so that they could adequately
prepare for his trial. The other members of the Public Defender’s Office were able to,
and did, accept the additional caseload to provide the Defendant’s attorneys with
adequate time to prepare. Had Ms. Sims expressed her needs earlier, presumably these
same actions could have been taken. We must separate the issue of whether the office is
adequately resourced from the issue of whether there was a “systemic breakdown” of that
office based on a lack of resources. In this case, and very likely because of the
commitment of all of the attorneys in the Public Defender’s Office, we conclude that the
thirty-eight month delay was not caused by a “systemic” or any other “breakdown” of the
Public Defender’s Office. Therefore, the delay, which was requested or acquiesced to by
the Defendant in or for his benefit, is attributable to the defense and the principal of
waiver applies. This factor weighs in favor of the State.

3. Assertion of the Right

55
 This third Barker factor requires us to determine whether and if so when, the
Defendant asserted his right to a speedy trial. In February 2016, the Defendant filed a
motion to be appointed as co-counsel. In March 2016, the Defendant’s counsel, on the
Defendant’s behalf filed a motion to dismiss, which was his first mention to the trial court
that he was asserting his right to a speedy trial. This was two years after he was
arraigned and after his counsel had requested an eight-month delay, along with an
additional investigator for the Defendant’s benefit. At a hearing on the speedy trial
motion, which occurred during the eight-month delay requested by the Defendant’s
counsel for investigation, the Defendant complained of being incarcerated by the DCSO
and asked to be transferred to TDOC. He agreed to a continuance until September,
asking that he be relocated. While the record shows he was ultimately not relocated, it
also shows that he did understand and agree to the continuance. The failure of the
Defendant to make an assertion of the right during the two years after his arraignment but
during a continuance that was requested for his own benefit weighs in the State’s favor.
Further, the fact that the Defendant agreed to a continuance in the hearing on his speedy
trial motion also weighs in favor of the State.

4. Prejudice

Finally, we must determine whether the Defendant was prejudiced by the delay,
which is the “final and most important factor in the [speedy trial] analysis.” Simmons, 54
S.W.3d at 760. Prejudice is to be assessed in light of the following interests of the
accused which the right to a speedy trial was designed to protect: (1) to prevent undue
and oppressive incarceration prior to trial; (2) to minimize the anxiety and concern that
results from being accused of a crime; and (3) to limit the risk that the defense will be
impaired. Id. Our supreme court has held that “the most important issue concerning
prejudice to the defendant is the impairment of the ability to prepare a defense.” State v.
Berry, 141 S.W.3d 549, 568 (Tenn. 2004) (citing State v. Baker, 614 S.W.2d 352, 356
(Tenn. 1981)).

The Defendant contends that he was prejudiced by this delay in several regards.
As we previously determined, the two-month delay is attributable to the State but the
second, eight-month delay based on DNA evidence is attributable to the Defendant. The
third continuance, based upon the workload of the defense and the need to hear the
motions regarding pre and post-indictment delay is neutral, in that the trial court had to
hear and appoint outside counsel to present arguments based upon the Defendant’s
filings. During this period, the public defender’s office shifted the Defendant’s defense
counsels’ workload to ensure they were prepared for trial.

The Defendant notes that over time, there were problems with the evidence in the
property room and that his work records became unavailable. These problems were not a
56
result of the portion of the delay of trial attributable to the State. While the property
room evidence was allegedly discovered in 2015, there was no evidence of what evidence
exactly was missing and how it would have aided the Defendant. In fact, the work
records issue was one that was a result of the pre-indictment delay, as mentioned above.
It is not a result of post-indictment delay. The Defendant also notes that the medical
examiner died on October 2, 1993. This occurred before the Defendant was arraigned in
April 2014 and did not occur during the period of post-indictment delay. We have
addressed the legality of the pre-indictment delay in response to the Defendant’s
contention that he is entitled to dismissal of his charges based upon pre-indictment delay.
We, therefore, only address whether the Defendant suffered any prejudice from the delay
between the time of his indictment and his trial.

The Defendant notes that time spent incarcerated is inherently prejudicial, and we
agree. He notes that his incarceration was oppressive in that he was not able to meet with
his attorneys, his defense materials were destroyed, and he could not use the law library.
There is equal evidence that some of these results may have been based upon his
behavior while incarcerated.

It is important to note that some delay in the Defendant’s trial was for his benefit
and to investigate evidence and facts that may have aided in his defense. Further, much
of the prejudice to which he points did not occur within the period that his trial was
delayed. Finally, anxiety and concern are “always present to some extent, and thus
absent some unusual showing [are] not likely to be determinative in [a] defendant’s
favor.” 5 WAYNE LAFAVE, CRIMINAL PROCEDURE, § 18.2(e) (4th ed. 2017) (footnotes
omitted). The Defendant’s pretrial incarceration, while inherently detrimental, does not
establish prejudice when weighed against the portion of delay attributable to the
Defendant, the severity of the charges, and the complexity of the case.

In balancing the aforementioned factors, we conclude that the Defendant’s right to
a speedy trial was not violated. Accordingly, the Defendant is not entitled to relief on
this issue.

C. Motion to Suppress
1. 1993 Search Warrant

The Defendant contends that the trial court erred when it denied his motion to
suppress evidence against him. He asserts that law enforcement officers seized items not
listed in the search warrant including a knife, shotgun, revolver, ammunition,
pornography books on bondage, a nylon bag containing bondage items, a jacket, and a
hammer, some of which were seized from inside a closet. Before trial, the Defendant
filed a motion to suppress some of these items contending that they were obtained outside
57
the scope of the warrant. The trial court denied this motion, finding:

The evidence in this case indicates the items Detective Smith and
others observed were in plain view. Officers entered into the residence
with a valid search warrant. The search warrant approved the entire search
of the house. Officers had the right to be in the position to view the items.
They were searching for clothes listed in the warrant. It is reasonable to
think clothes would be found in the closet. The [D]efendant contends that
Ms. Singleton showed officers the clothing listed in the warrant so there
was no need to search the closet. The [D]efendant also argued that the
clothes hanging on the line inside the home were found first, so there was
no need to enter the closet. However, there was no testimony or proof
presented to substantiate those arguments at the hearing. Further, at the
time, which was early in the investigation, Detective Smith knew that the
victim suffered trauma and was beaten in the head in this offense, and the
victim was bound to a bed with a cord that had been cut. Therefore, the
officers were well within the plain view exception when they seized the
knife, which could have been used to cut the cord, and the hammer, which
could have been used to beat the victim and to cause the trauma. Based
upon the information known to detectives, the incriminating nature of these
items were readily apparent. Therefore, the Court concludes the officers
properly seized the items observed in the residence pursuant to the plain
view doctrine.

In regard to the other items mentioned in the motion, the State is not
seeking to introduce the guns, ammunition, washer, nylon bag, or hair
sample. These items will be excluded by the State. As to the pornography
book that mentions “bondage” and the bondage items found in the nylon
bag, the Court will determine their relevance and admissibility as the Court
hears more proof and context at trial, so the Court can properly weigh the
probative value and prejudice as required.

During the trial, the State offered as exhibits from the search warrant: the
Defendant’s clothes and a hair sample, which the Defendant does not contest. The State
also offered a hammer and allowed testimony that officers had found a knife in the
Defendant’s residence when they executed the search warrant. The Defendant does
contest the admission of the hammer and the evidence regarding the knife. The State
counters that the hammer and the knife were in plain view, when the officers were
searching for clothes, and were, therefore, found pursuant to the “in plain view” doctrine
as the officers properly executed the search warrant.

58
 A defendant seeking to suppress evidence obtained pursuant to a search warrant
bears the burden of establishing by a preponderance of the evidence “the existence of a
constitutional or statutory defect in the search warrant or the search conducted pursuant
to the warrant.” State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998). Our standard of
review for a trial court’s findings of fact and conclusions of law on a motion to suppress
evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard,
“a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing party in
the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn.
1998)). Nevertheless, this Court reviews de novo the trial court’s application of the law
to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court’s ruling on
a motion to suppress, an appellate court may consider the evidence presented both at the
suppression hearing and at the subsequent trial. Henning, 975 S.W.2d at 299.

The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “‘Article 1, Section 7 [of the Tennessee
Constitution] is identical in intent and purpose with the Fourth Amendment.’” State v.
Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857,
860 (Tenn. 1968)). Under the Fourth Amendment a search warrant must contain a
particular description of the items to be seized. See Marron v. United States, 275 U.S.
192 (1927). Likewise, Article I, Section 7 of the Tennessee Constitution prohibits
general warrants, and, in addition Tennessee Code Annotated section 40-6-103),
specifically requires that search warrants describe the property to be seized with
particularity. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923).

Under both the Tennessee and United States Constitutions, no search warrant may
be issued except upon probable cause, which “requires reasonable grounds for suspicion,
supported by circumstances indicative of an illegal act.” State v. Smotherman, 201
S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit,
“containing allegations from which the magistrate can determine whether probable cause
exists,” as “an indispensable prerequisite to the issuance of a search warrant.” State v.
Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than mere
conclusory allegations on the part of the affiant. Id. Thus, the affidavit must “set forth
facts from which a reasonable conclusion might be drawn that the evidence is in the place
to be searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted).
59
“The nexus between the place to be searched and the items to be seized may be
established by the type of crime, the nature of the items, and the normal inferences where
a criminal would hide the evidence.” Smith, 868 S.W.2d at 572 (citation omitted); see
also State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (recognizing that an affidavit in
support of a search warrant “must show a nexus among the criminal activity, the place to
be searched, and the items to be seized”) (citing State v. Reid, 91 S.W.3d 247, 273 (Tenn.
2002); Smith, 868 S.W.2d at 572)).

In the case under submission, the affidavit in support of the search warrant issued
stated:

Considering the totality of the circumstances described herein, your affiant
would, therefore, pray that a search warrant be issued for [the Defendant’s
house] and that officers with the Metropolitan Police Department make a
search of the home in order to find and locate certain articles of clothing
and shoes worn by the said [Defendant] during his visit to the home of the
deceased on Sunday the 7th of March, 1993 described by [the Defendant]
as: a pair of black corduroy trousers, a Star Trek pull over T-shirt and a pair
of black tennis shoes with Velcro straps, and inspect said articles for
evidence linking [the Defendant] to the crime scene and said articles
brought before this court as provided by law.

This court has previously stated:

The rule that general searches are unwarranted does not prevent the
executing officer, having a search warrant describing property and being
lawfully on the premises, from seizing other property he discovers being
used in the commission of crime, for after a lawful entry on the premises
through a search warrant, the question of whether or not an officer can
make an added seizure depends upon its reasonableness. Robertson v.
State, 188 Tenn. 471, 221 S.W.2d 520.

Jones v. State, 523 S.W.2d 942, 946 (Tenn. Crim. App. 1975). We have also said, “Once
the officers were properly inside the apartment, they acted lawfully in observing
incriminating or highly suspicious evidence which was in plain view, State v. Byerley,
635 S.W.2d 511 (Tenn. 1982), including a semi-automatic weapon.” See State v. Barr,
No. 89-267-III, 1990 WL 75108, at *3 (Tenn. Crim. App., at Nashville, June 8, 1990),
(also stating “As to whether the officers went outside the scope of the search warrant in
removing from the appellant’s apartment items other than those items noted in the search
warrant and affidavit, an officer is justified in seizing any object which he reasonably
believes to be contraband, which is in plain view in a location that he is searching
60
pursuant to a search warrant” citing Jones, 523 S.W.2d at 946), perm. app. denied (Oct.
8, 1990). Finally, “There is no prohibition against the seizure of other property not
specifically mentioned in a valid search warrant, if such is relevant to the crimes
suggested by the warrant.” State v. Dellinger, 79 S.W.3d 458, 471-72 (Tenn. 2002)
(citing State v. Wright, 618 S.W.2d 310, 318 (Tenn. Crim. App. 1981)).

In this case, Detective Smith testified at the suppression hearing that when officers
were executing the warrant, Ms. Singleton told them where to find the clothing that the
Defendant had washed and dried. After officers had found the clothing hanging to dry,
they continued to search a closet where they found the hammer. We think this is
reasonable. Officers had gone to the Defendant’s residence to search for his clothing and
shoes. While Ms. Singleton had told them that some clothing was hanging to dry,
officers would have been remiss if they failed to search and find similar or identical
clothing or shoes that contained incriminating evidence in the closets. As Detective
Smith explained, he was unsure exactly what clothing would become relevant. The
warrant contemplated the officers finding clothing, and they searched in a closet. This
search did not exceed the scope of the warrant, whether or not there was similar clothing
hanging to dry in another room. Further, once they were lawfully searching the closet, it
was reasonable that they confiscate a knife, which could have been used to cut the cord
found binding the victim.

As to the hammer, we conclude that the trial court did not abuse its discretion
when it found that the hammer was in plain view while the officers were validly
executing a search warrant. There is no evidence in the record about where it was found
other than an inventory list that states that the hammer was found in the “front room.”
We further agree that the incriminating evidence of the hammer was readily apparent as
the victim suffered blunt force trauma. The Defendant is not entitled to relief on this
issue.

2. 2012 Search Warrant DNA Evidence

The Defendant next contends that the trial court erred when it denied his motion to
suppress his saliva sample obtained by law enforcement pursuant to a search warrant
issued in February 2012 and which was executed upon him while he was incarcerated in
Texas. He asserted in the trial court that the seizure of his saliva was not supported by
probable cause. On appeal he contends that the affidavit supporting the warrant did not
establish probable cause because it did not “allege any criminal conduct by him” and that
the witnesses, even if presumed reliable, provided information consistent with the
Defendant’s innocence. The State counters that the affidavit provides probable cause for
the trial court to have issued the warrant. We agree with the State.

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 After hearing the motion to suppress, the trial court found:

The Court finds the information contained in the affidavit clearly
recites information that came from citizen informants: Shirley Singleton;
Pam Bush; and Victoria Hernandez. The affidavit lists Shirley Singleton as
the defendant John’s roommate. It lists Pam Bush as a friend of John’s ex-
wife, Victoria Hernandez, and it lists Victoria Hernandez as [the
Defendant’s] ex-wife. It also contains statements against interest made by
the [D]efendant. These informants were known to the affiant, Detective
Arendall, and listed in the affidavit. Further, the Texas affidavit completed
by Detective Faithful was attached, incorporated, and contained Detective
Arendall’s information detailing his professional information and
involvement. Considering the entirety of both affidavits and read in a
commonsense and practical manner, the Court finds the information to be
reliable. Relying on this information, the magistrate in this matter was
equipped with a substantial basis for concluding that a search warrant for
the [D]efendant’s DNA would uncover evidence of wrongdoing.

It is well-settled that the obtaining a DNA sample is subject to constitutional
limitations imposed by the Fourth Amendment. See State v. Scarborough, 201 S.W.3d
607, 616 (Tenn. 2006). Under the Fourth Amendment to the United States Constitution
and Article I, section 7 of the Tennessee Constitution search warrants may not be issued
unless a neutral and detached magistrate determines that probable cause exists for their
issuance. Illinois v. Gates, 462 U.S. 213, 240 (1983); Henning, 975 S.W.2d at 294;
“‘Articulating precisely what probable cause means is not possible.’” State v. Reynolds,
504 S.W.3d 283, 300 (Tenn. 2016). “Probable cause is more than a mere suspicion but
less than absolute certainty.” Id. (internal citations and quotation marks omitted; See also
State v. Tuttle, 515 S.W.3d 282, 301 (Tenn. 2017). “[T]he strength of the evidence
necessary to establish probable cause . . . is significantly less than the strength of
evidence necessary to find a defendant guilty beyond a reasonable doubt.” State v.
Bishop, 431 S.W.3d 22, 41 (Tenn. 2014). “These [probabilities] are not technical; they
are the factual and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175
(1949); see also Reynolds, 504 S.W.3d at 300 (recognizing that the probable cause
standard is practical and nontechnical).

“Determinations of probable cause are extremely fact-dependent.” Tuttle, 515 S.W.3d
at 301 (citations omitted). Reviewing courts afford “great deference” to a magistrate’s
determination that probable cause exists. Id. (citing Jacumin, 778 S.W.2d at 431-32 and
State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009) (reiterating that appellate courts should
afford deference to a magistrate's determination)). “[I]n a doubtful or marginal case a
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search under a warrant may be sustainable where without one it would fall.” United
States v. Ventresca, 380 U.S. 102, 106 (1965).

The point of the Fourth Amendment . . . is not that it denies law
enforcement the support of the usual inferences which reasonable men draw
from evidence. Its protection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.

Ventresca, 380 U.S. at 106 (quoting Johnson v. United States, 333 U.S. 10, 13-14
(1948)).

In the affidavit supporting the search warrant, Detective James Arendall swore that
he believed that a specific criminal offense has been committed, to wit: Murder; in that,
on or about the 7th day of March 1993, in Davidson County Tennessee, a person or
person(s) unknown did intentionally and knowingly cause the death of Annis Szekely,
w/f, 10-20-1922, by blunt force trauma to her head. He also stated:

I believe that there are items located at or on the person of John Hernandez,
h/m, born 08-09-1956, constituting evidence of the above, stated offense or
that a particular person committed that offense and are thereby subject to
seizure under the laws of Texas and described as follows: John Hernandez
H/M. born 08-09-1956.

Human Deoxyribo Nucleic Acid (DNA) of John Hernandez,

Fingernail scrapings were collected from the victim, Annis Szekely, and
were submitted for analysis to a private DNA forensic lab, Orchid
Cellmark, Dallas, Texas. Two profiles were developed, one was the Annis
Szekely, and the second profile was that of an unknown male subject. The
samples requested from John Hernandez . . . born 08-09-1956, constitute
evidence which could be used to compare with the samples collected from
the deceased’s fingernails.

On 03-07-1993 around 1915 hours Miss Annis Szekely was found
murdered in her home by her 16 year old grandson Kahn Radovich. The
victim was tied to a hospital bed with a telephone cord. She had severe
trauma to her head and a plastic bag was tied over her head. The victim
also had ligature marks on her neck.

John Hernandez was developed as a suspect due to statements he made
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while talking to friends of his (John’s) ex-wife, Victoria Hernandez and
police detectives.

John stated in an interview with police detectives that on 03-07-1993
around 1400 hours he went by the victim’s house to check on her. John
stated that he did not get an answer at the door.

Shirley Singleton, John’s roommate, stated to detectives that on 03-07-1993
around 1530 hours she had just got home from visiting her mother at
Baptist Hospital. Miss Singleton stated that John came in about 15 minutes
later, said hello, and went into the kitchen where he put his clothes in the
washer and turned it on. Shirley stated that John was dressed in a black
‘Star Trek’ “tee” shirt, black or navy corduroy pants, and black canvas type
shoes with Velcro straps. Shirley stated that the washing of the clothes was
unusual because John usually just put his clothes on the floor. Shirley
stated while the clothes were washing John told Shirley that he fell in a
mud puddle on the way home from the victim’s house. Shirley also stated
that when John came in she did not notice any mud on his clothes. Shirley
stated that while they were sitting at the table talking she noticed what
appeared to be blood on John’s arm. Shirley stated that John got up and
went to the bathroom and wiped the blood off. When John retuned he
showed Shirley a small abrasion on his arm. John stated it must have
happened when he fell.

On 03-15-1993 detectives interviewed Pam Bush who is a friend of
Victoria Hernandez (John’s ex-wife.) During this interview Bush told of a
conversation she had with Hernandez. During the conversation with Pam
Bush, John stated he had a dream that he was watching the suspect beating
the victim to death with a hammer. (The victim’s injuries were consistent
with being beat with a hammer). John stated he could not see the
suspect[’]s face because it was blurry. John stated that the victim then
pulled him closer to her and stated to him she forgave them and whispered
a riddle to him and a biblical verse. John stated that he could not remember
the content of what she said. John stated again during the conversation that
he took the hammer away from the suspect and started hitting the suspect
with the hammer. John stated as this was happening the suspect changed in
to the victim.

On 03-16-93 around 1040 hours Victoria, John’s (ex wife), was at Pam
Bush’s house. Victoria stated that she talked with John on the telephone
and he: stated the same story about having a dream about the victim being
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 beaten by a suspect with a hammer. Victoria audio taped that conversation
and gave the tape to police detectives. John also stated to Victoria that he
had some scratches on his back and this happened because he was
scratching his back with a tee ruler.

On 03-30-93 Shirley Singleton stated in an interview with police detectives
that John told her that he got the scratches on his back from a hammer he
used to scratch his back with. Shirley also stated that John told her that the
police took the wrong hammer. John stated to Shirley they took the
victim’s hammer not his.

In 2010 the victim’s finger nail scrapings were sent for DNA testing and a
partial profile was developed. Two profiles were developed, one was the
victim’s, and the second profile was-of an unknown male, subject.

Having reviewed the evidence provided in the affidavit, we conclude that the
magistrate had probable cause to issue the search warrant for the Defendant’s DNA. The
affidavit lays out that the Defendant, by his own admission, went to the victim’s home on
the day of the murder to check on her. He said she did not answer, so he then went back
home, and immediately washed his clothing and shoes. Ms. Singleton saw what appeared
to be blood on his arm, and the Defendant told her that his clothing and shoes were
dirtied and the scrape must have all come from falling into a mud puddle. Later, the
Defendant told two separate witnesses about a dream in which the victim was murdered
by a suspect beating her with a hammer. He told Ms. Singleton that the police
confiscated the “wrong” hammer. Police took fingernail scrapings from underneath the
victim’s fingernails and DNA testing showed two profiles: one male and the other the
victims. This evidence was sufficient to sustain a finding of probable cause so as to issue
a search warrant.

D. Evidentiary Rulings

The Defendant next contends that the trial court erred when it made several
evidentiary rulings. He contends that the trial court erred when it allowed into evidence:
(1) the admission of recorded statements the Defendant made about a dream he had
regarding the victim’s murder; (2) unredacted portions of his interview with police in
which he discussed having been trained by the military; and (3) Ms. Ramsey’s testimony
that she had seen him tie knots similar to the ones used to bind the victim. The State
offers responses to each argument, as discussed below.

Admission of evidence is entrusted to the sound discretion of the trial court, and a
trial court’s ruling on evidence will be disturbed only upon a clear showing of abuse of
65
discretion. See State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) (citing State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). A trial court’s exercise of discretion will
not be reversed on appeal unless the court “applied an incorrect legal standard, or reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). When determining
admissibility, a trial court must first decide if the evidence is relevant. Tenn. R. Evid.
402 (“All relevant evidence is admissible except as provided by the Constitution of the
United States, the Constitution of Tennessee, these rules or other rules or laws of general
application in the courts of Tennessee. Evidence which is not relevant is not
admissible.”); State v. James, 81 S.W.3d 751, 757 (Tenn. 2002). 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” is
relevant evidence. Tenn. R. Evid. 401. After a court concludes evidence is relevant, the
court must then weigh the probative value of the evidence against the danger the evidence
will unfairly prejudice the defendant at trial. Relevant evidence should be excluded if the
court determines that the probative value of the evidence “is substantially outweighed by
its danger of unfair prejudice.” Tenn. R. Evid. 403. The Tennessee Supreme Court has
previously emphasized:

Rule 403 is a rule of admissibility, and it places a heavy burden on the party
seeking to exclude the evidence. Excluding relevant evidence under this
rule is an extraordinary remedy that should be used sparingly and persons
seeking to exclude otherwise admissible and relevant evidence have a
significant burden of persuasion.

James, 81 S.W.3d at 757–58 (internal quotations and citations omitted).

1. Admission of Statements About Defendant’s Dream

The Defendant contends that the trial court erred when it failed to exclude any
evidence of a dream that he allegedly had about the victim’s death, because it was not
relevant and because any probative value it had was far outweighed by the prejudicial
effect of the evidence. The State counters that the evidence of the Defendant’s dream is
probative of his identity as the murderer and also that the probative value is not
outweighed by the prejudicial effect.

The evidence presented at trial about the dream included a recorded phone
conversation between Ms. Bush and the Defendant during which the Defendant recounts
to her a dream where he was present when the victim was beaten with a hammer and, at
some one point during the dream, where he became the assailant and beat the victim with
the hammer himself. Ms. Ramsey testified to a similar conversation, saying that, while
66
the two were driving, the Defendant told her about a dream he had about the victim. He
told her that he dreamed that he saw a man with a hammer in his hand beating the victim
in the head. He said, in the dream, he walked up to the man, took the hammer, and began
beating the man with the hammer. Then the man he was beating became the victim and
he was beating the victim.

The trial court addressed the admissibility of this evidence in a hearing on the
Defendant’s motion in limine and found that this evidence was admissible and that the
jury could determine the weight to give the evidence. We conclude that the Defendant
has not shown the trial court abused its discretion in this regard.

In its brief, the State cites a Texas case directly on point. Dossett v. State, 216
S.W.3d 7, 25-26 (Tex. Ct. App. 2006). Reviewing the same issue, the Texas court held
that a defendant’s statement about his dreams were “probative of the defendant’s intent to
commit the charged offense and admissible.” Id. at 26. It also rejected the defendant’s
argument that evidentiary rule 403 should prohibit this evidence’s admission. Id. We
similarly hold. The Defendant’s statements herein included an admission against interest,
giving the statements probative value. The statements, which he made consistently to
two separate witnesses on two separate occasions, included details about the crime, such
as that it was committed with a hammer, and also that the Defendant became the assailant
at some point in time. It also included that the victim whispered to the Defendant that she
forgave him. The trial court did not err when it determined that the probative value of
this evidence is not substantially outweighed by its unfairly prejudicial effect.

2. Police Interview

The Defendant next contends that the trial court erred when it allowed unredacted
portions of his interview with police in which he discussed having been trained by the
military to be a “killer.” The State contends that the trial court properly exercised its
discretion in this regard.

The trial court denied the Defendant’s objection to the admissibility of this
statement finding that the Defendant’s reference to military service was just a statement
of who he was and was not prejudicial. We agree with the trial court. The Defendant
discussed during the statement of his military training that he had been taught to kill
someone using a “Garrote knot.” The victim in this case was found strangled and tied
with a series of knots. This evidence was relevant and its probative value was not
outweighed by its prejudice.

3. Ms. Ramsey’s Knot Testimony

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 The Defendant next contends that the trial court erred when it allowed Ms.
Ramsey to testify that she had seen the Defendant tie knots similar to the ones used to tie
the victim. He asserts that this evidence was not relevant to his identity as the perpetrator
and that any probative value is outweighed by its prejudicial effect. The State counters
that the Defendant waived this issue and also that the trial court properly allowed this
evidence.

The record clearly evinces that the trial court did not err when it allowed this
testimony. Ms. Ramsey, who in a jury out hearing established her knowledge of and
experience with the Defendant’s knot tying abilities, testified before the jury that she had
seen the Defendant tie knots similar to the ones used to bind the victim. This evidence is
relevant to the Defendant’s identity. Further, its probative value is not substantially
outweighed by its unfairly prejudicial effect.

E. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his conviction
for first degree premeditated murder because it is not based on direct evidence of his
guilt. The State counters that the evidence supports the jury’s verdict. We agree with the
State.

When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

68
 In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme
Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
69
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

First degree murder is defined as a “premeditated and intentional killing of
another.” T.C.A. § 39-13-202(a)(1) (2014). Premeditation refers to “an act done after
the exercise of reflection and judgment.” T.C.A. § 39-13-202(d) (2014). Whether the
defendant premeditated the killing is for the jury to decide, and the jury may look at the
circumstances of the killing to decide that issue. Bland, 958 S.W.2d at 660. The
Tennessee Code states that, while “the intent to kill must have been formed prior to the
act itself,” that purpose need not “pre-exist in the mind of the accused for any definite
period of time” for a defendant to have premeditated the killing. T.C.A. § 39-13-202(d)
(2014).
In the case under submission, we conclude that the evidence is sufficient to sustain
the Defendant’s conviction for first degree premeditated murder. The Defendant stated
that, on the day of the victim’s murder, he went to her house around 3:00 p.m. but no one
was home. Immediately upon returning home, he washed his clothing and shoes, which
behavior Ms. Singleton found highly unusual. She also found suspect his claim that he
fell in the mud, as it had not been raining. The Defendant had on his person fresh
wounds, including scrapes on his back, and what appeared to be blood on his arm. The
Defendant’s fingerprints were found at the crime scene and there was male DNA
evidence found underneath the victim’s fingernails that indicated that the Defendant
could have been a contributor, and this evidence excluded 99% of the male population.
Fibers consistent with the victim’s clothing were found on the Defendant’s clothing. The
Defendant, who said he had been trained to be a killer, had experience with knots similar
to the ones tied on the victim. He had a dream in which he was the victim’s assailant and
hit her in the head with a hammer and she offered him forgiveness. The Defendant
laughed when Ms. Singleton told him that the police had confiscated her hammer because
officers had taken her hammer and not his.

This evidence is sufficient for a rational jury to conclude that the Defendant used
his knowledge of knots to tie the victim and then beat her in the head with his hammer.
Thereafter, having bloodied his clothing and shoes, returned to his house and washed his
attire to conceal his crime. The Defendant is not entitled to relief on this issue.

F. Cumulative Error

Lastly, the Defendant contends that he is entitled to a new trial based upon the
70
cumulative effect of the errors. The cumulative error doctrine is a judicial recognition
that there may be multiple errors committed in trial proceedings, each of which in
isolation constitutes mere harmless error, but which when aggregated, have a cumulative
effect on the proceedings so great as to require reversal in order to preserve a defendant’s
right to a fair trial. See State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (citations
omitted). To warrant assessment under the cumulative error doctrine, there must have
been more than one actual error committed in the trial proceedings. Id. (citations
omitted). Having concluded herein that there were no actual errors in the proceedings,
this doctrine does not apply.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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