State v. Caughron

855 S.W.2d 526, 1993 Tenn. LEXIS 189

• Court: Tennessee Supreme Court
• Decided: May 10, 1993
• Status: Published

Opinions

OPINION

DROWOTA, Justice.

The Defendant, Gary June Caughron, appeals directly to this Court his conviction of first degree premeditated murder and the sentence of death imposed by the jury, and his convictions of first degree burglary, and assault with intent to commit rape. He raises numerous issues in this appeal; but, after careful review of the entire record and the law, we find these issues to be without merit. The verdict and judgment are supported by material evidence, and the sentence of death is in no way arbitrary or disproportionate. We therefore affirm the convictions and the sentences.

THE FACTS

In the early afternoon of July 11, 1987, Christy Jones Scott, the daughter of the victim, 42-year-old Ann Robertson Jones, discovered her mother’s partially clothed body lying facedown on a bed in her home in Pigeon Forge. Jones’s legs and arms had been bound and tied to the bed with strips of blue terry cloth and pieces of sheer, off-white material like that used for table cloths and curtains. There was a gag tied across her mouth, and strips of the blue terry cloth had been wrapped tightly around her neck.

According to the state’s forensic pathologist, Dr. Cleland Blake, Jones had suffered several “blunt traumatic contusions” to her head. These injuries were consistent with those caused by a blunt or rounded object and would have rendered Jones unconscious at some point. Her skull had been fractured and the cartilage in her nose displaced by the beating. She had bled extensively from her mouth and nose. There was a “patch” of “scraping type of injuries caused by some kind of slender linear object ... like whipping marks” on the left back side of her chest beneath her shoulder blades. On the right buttock were “three linear imprints, ... superficial bruises that fit perfectly with four fingers of a hand.” Dr. Blake stated that these represented a “hard slap injury to the buttock” inflicted- while the victim was still alive. The terry cloth strips around the victim’s neck had been pulled so tightly that they had cut off the flow of blood to the victim’s brain. The gag, bound so tightly that it cut a deep groove into the corners of the victim's mouth, combined with the hemorrhaging in the nasal passages, had caused her to suffocate. Dr. Blake concluded that Jones had died as a result of asphyxiation while unconscious.

Examination of the scene of the crime revealed that the door to the bedroom where the body was found had been forced open. A purse and its contents lay strewn in the hall. The phone lines to the house had been cut. Sometime within the following two or three weeks, Christy Jones Scott discovered a silver, turquoise and coral ring with a thunderbird design lying on the ground beside her mother’s truck, which was still parked at her mother’s house.

The key witness in this case was April Marie Ward, who was 14 years old at the time of the killing. Almost everything that the jury learned about Ann Jones’s death, other than the description of the crime scene given by investigators, came from April’s testimony. That testimony is summarized below.

In early summer 1987, according to April, she and the 27-year-old Defendant met and became romantically involved. April Ward’s mother, Lettie Marie Cruze, worked at the Turquoise Jewelry Shop in Settler’s Village, a group of shops in Pigeon Forge. Ann Jones ran the Wild Hare Tee Shirt Shop in this same shopping center. April and the Defendant, who was working on a nearby construction project, met on the covered portico (commonly referred to as “the porch”) of Settler’s Village almost every day.

One night, two or three weeks before the murder, Ann Jones made the Defendant Caughron, who had been drinking, leave her shop because he was acting in a disorderly manner. Jones instructed him to stay away. This upset Caughron, who told April Ward that he would like to catch Ann Jones “out one night” and “slice her throat.” The Defendant suggested that April accompany Jones to her house after work and give him directions on how to get there. He also asked April to watch Jones as she closed her shop and see where she put her money, and to find out if Jones was married and had a telephone or pets.

Because she knew that her mother would have disapproved of her relationship with the Defendant if she had known his true age, April had told her mother that the Defendant was 18. April then became upset with Ann Jones because of a conversation Jones had had with her mother that led to her mother’s disapproval of the relationship. April testified that she hated Jones because she had tried to separate her and the Defendant by going to her mother. April also said that she had told the Defendant what Jones had done.

The week before the murder, according to April, she and the Defendant began talking about going to the victim’s house. She said that the Defendant instructed her to bring a towel and a knife “to gut” Ann Jones. On the afternoon of Friday, July 10, around 3:00 or 4:00 p.m., the Defendant came by April’s house in an older model green and white 442 Oldsmobile Cutlass that he had just purchased. He told April that he would return that night and that the two would go to the victim’s house as planned.

April further testified that after her mother went to sleep, she cut a blue terry cloth towel into strips and waited for Cau-ghron to arrive. He picked her up sometime after midnight. He had been drinking but, according to April was “not drunk.” (Another witness, Vicky Worth, testified that she had seen the Defendant drinking beer and smoking marijuana at a restaurant around 10 or 11 o’clock that night.) On their way to Ann Jones’s house April and the Defendant drank alcohol and took drugs. They walked to the victim’s house from the parking lot of a nearby nursing home, where they had left the Oldsmobile. The Defendant carried with him the handle of a pool stick, around which he had placed gray duct tape, and pieces of the sheer material that he already had in his car. The Defendant gave April a survival knife.

April testified that Caughron entered the house by himself and then summoned her inside. As they went down the hall to Jones’s bedroom, April could hear her calling, “Who is it? What are you doing?” She testified that the Defendant kicked in the bedroom door, which was locked. According to April, Jones cried and pleaded with them not to hurt her, but the two told her she was going to die. April later testified that after the Defendant hit Jones several times with the pool stick, Jones fell across her bed, became silent and stopped moaning. As April described the scene, the Defendant turned Jones on her stomach and tried unsuccessfully to have sex with her. Complaining that she had “tightened up on him,” he then slapped the victim on the right buttock. Unable to complete the sex act with Jones, the Defendant suggested sex with April. She said that after the two of them undressed, Caughron rubbed the victim’s blood on both their bodies as they engaged in sex on the floor beside the bed where Jones lay. Finally, April testified, Caughron insisted that they drink some of the victim’s blood from shot glasses that he produced for the occasion.

Although April’s testimony was confused as to exact chronology, it appears that at some point, Jones was gagged to stop her screaming and tied up with the strips of towel and sheer material. April said that the Defendant tightened the terry cloth strip around Jones’s neck, causing the victim to gasp. April testified that she then hit the victim in the head two times. After drinking the blood, April said, she went to the bathroom to throw up, but did not. When she returned to the bedroom, she saw the Defendant striking Jones’s back with the pool stick. According to April, the Defendant dumped out the contents of Jones’s purse as they left and took what appeared to be a large amount of money. Outside, she said, the Defendant used the knife he had given her to cut the telephone lines to make it appear that whoever had killed Jones had not wanted her to use the telephone.

April testified that she and the Defendant tried to wash the blood off their bodies in the river behind a store in Pigeon Forge. They next drove to Dollywood, where they met several people, one of whom, Kevin Carver, threatened April with harm if she “got the Defendant in trouble.”

Later that same morning, several witnesses saw the Defendant when he arrived at Settler’s Village around 10:00-11:00 a.m. Caughron was wearing only cut-off jeans and tennis shoes; he had scratches on his back, stomach and face. Several witnesses saw what they described as dried blood on him. When April’s mother commented thát “he looked like some sort of wild woman got a hold of him the night before,” he “sniggered” and said, “No, I just got in a fight over a beer in a bar in Newport.” Caughron cleaned himself in the store’s restroom. When Robert Yoakum, Cruze’s boyfriend, teased the Defendant about the blood, Caughron told him that “a bitch had hit him in the head with a beer bottle.” Caughron then took April aside and warned her not to tell what had happened. The two of them left the shops with Yoakum and went to April’s mother’s house, where the Defendant bathed. Later that day, Caughron spray-painted his car silver, as he told April, to prevent anyone who might have seen it the night before from identifying it.

Tom Bentley, who worked on the Defendant’s car sometime after the killing, testified that he had used pieces of blue terry cloth towel from the trunk of the Defendant’s car as grease rags. Bentley testified that the rags matched the towelling that he was shown at trial, which had been tied around the victim’s body. When Bentley had asked the Defendant why he wanted to paint the car, Caughron replied, “Well, the lady that got killed, somebody might recognize it and I need to paint it.”

Jimmy Lynn Huskey testified that in 1986, when he and the Defendant were friends, the Defendant had a pool stick that came apart like the one Ward had described and that Defendant kept light-colored lace table cloth or curtain material in his car similar to the sheer material used to tie up Jones. The Defendant had also talked to Huskey about tying up women during sex and said that “slapping them on the butt really turned him on.”

Lettie Marie Cruze, April’s mother, testified that she had sold the Defendant a silver ring with turquoise and coral inlay and a thunderbird design. This description matched that of the ring Christy Jones Scott had found in her mother’s driveway after the killing. While the Defendant was staying at her house shortly after the murder, Cruze noticed that he had “an odd toothbrush for a man,” a pink brush with a little rubber tip. Christy Jones Scott testified that her mother’s toothbrush, a pink Oral-B brush, was missing after the killing.

The police made little progress in the investigation of the Jones homicide during the year after the homicide. They developed several leads, but none of them panned out. Then, on June 22, 1988, they took the first of six statements they would obtain from April Ward. In it, she disavowed any knowledge of the details of the murder, but made allegations that implicated Caughron, with whom she was no longer romantically engaged. During the summer of 1988, Caughron himself gave law enforcement officers various statements. In turn, he denied knowing the victim, denied any involvement in her death, and denied his actions the day after the killing. He also denied being in a fight in a bar in Newport and told different stories about how he had gotten scratched and bloodied up. Caughron said that he stayed at his grandmother’s house on the night of the killing and had been riding around with a friend and his wife at the time of the murder. Over the course of these interviews, the Defendant became more and more nervous. One time when asked who had killed Ann Jones, Defendant stated, “Whoever done it needs help.” Another time he said, “If I’m convicted of what I’ve done, someone will have to pay.” When asked why he had tried to kill himself after one of the interrogation sessions with police, he said that “he was depressed and had a lot on his mind.” At his last interview, when confronted with falsehoods in his prior statements, Caughron became upset and walked out of the room.

Three inmates who had been incarcerated with the Defendant in the Sevier and Cocke County jails testified about statements that he had made to them concerning the victim and her death. When, in the summer of 1988, Tim McGaha had asked the Defendant if he had committed the murder, Caughron “just smiled.” He told McGaha that he had been drunk and partying the night of the murder. He called the victim a “bitch.” He also told McGaha he had lost a ring. Caughron told another prisoner, Roy Haynes, that on the night of the murder, he and his girlfriend had driven to a house on Cove Road or Cove Mill Road (the victim lived on Cole Drive) in Pigeon Forge and that from that point “he couldn’t remember nothing ... he was so messed up on cocaine.” The Defendant told Haynes that when he woke up the next morning he had blood all over him and that he did not know whether or not he had killed the victim. After looking at a newspaper article mentioning the homicide, the Defendant told Haynes that he thought his girlfriend was “snitching” on him. A third inmate, Bobby Floyd, testified that Defendant told him that the victim was a “bitch,” who had threatened to “tell some girl’s mother how old he was;” that the only evidence police had against him was an article of clothing with blood on it; and that “the only mistake he [had] made was involving April.”

The Defendant presented evidence that, based on evidence gathered at the crime scene, none of the tests or analyses performed by forensic scientists from TBI and the FBI had connected him with the killing. His fingerprints were not found in the house. A plaster cast of a shoe print found outside the house was consistent with a boot owned by Kenneth Ogle. Ogle had been a boyfriend of Teresa Goad, one of the victim’s daughters. In September 1986, he had broken into the victim’s home and at knifepoint had pushed Teresa to the bed and attempted to tie her hands with strips of sheet. Three witnesses testified that the Defendant was in the habit of spray painting his “junker” cars different colors. His aunt testified that, on the Friday night after he bought a green and white Oldsmobile, he came to his grandmother’s house around 11 or 12 o’clock and went to bed.

Based on this evidence, presented over four days of trial, the jury found the Defendant not guilty of felony-murder, robbery, and larceny, but guilty of premeditated first-degree murder, first-degree burglary, and assault with intent to commit rape.

The sentencing phase of the trial was much briefer, primarily because the state presented no further proof and the Defendant called only four witnesses. The first was his aunt, Gladys Green, who told how his mother and father had divorced when the Defendant was three or four years old. According to Green, the Defendant’s childhood had been very unsettled. She described her nephew as “slow” and said that he had a good attitude since he had been in jail.

Harold Stoffell, a minister, testified that the Defendant had accepted the word of God, was respectful and was “the finest young prisoner I’ve ever saw.” Edward Moore, the jailer at the Sevier County Jail, testified that he had never had any “real problems” from Defendant while he had been in jail.

Dr. Madeline Pareau, a clinical psychologist, testified that Defendant’s full IQ was 78, “just a little above mentally retarded classification.” She said that he had been in special education classes, where he had done well. His father, whom Pareau described as “overtly psychotic,” was an alcoholic and had physically abused his mother until their divorce. According to the history given by the Defendant, his mother had started acting “quite wild” after the divorce, drinking and dating. In Dr. Par-eau’s opinion, Caughron had received inadequate parenting, and there had been no consistency in his relationships. His stepfather, for example, had beaten him and humiliated him for bedwetting. Dr. Par-eau felt that Defendant would not be a physical threat to society or other prison inmates. On cross-examination, however, she conceded that Caughron was not insane and could conform his conduct to the dictates of the law.

MOTION FOR CONTINUANCE

The Defendant first avers that the trial court abused its discretion in denying his motion for a continuance. Shortly before trial, the Defendant moved for a continuance on four grounds: (1) to take the testimony or deposition of George Tippens, an investigating officer who had moved to Florida; (2) to investigate additional suspects in the case whose names had been supplied to the defense on January 19, 1990; (3) to examine the door to the victim’s bedroom; and (4) to permit FBI Agent Doug Dedrick to testify.

It must be clearly shown that a trial court has abused its discretion in refusing to grant a continuance before that decision will be disturbed on appeal. State v. Melson, 638 S.W.2d 342, 359 (Tenn.1982). No abuse of discretion warranting reversal is shown in this case.

Officer Tippens was one of the first officers on the scene the day the murder was discovered. The crucial evidence Defendant alleged Tippens possessed was his knowledge that there were groceries in the victim’s truck when the body was discovered. This testimony, according to Defendant, would tend to show that the victim never had a chance to bring in her groceries before she died and thus was first attacked outside the house. Tippens was unable to come to trial because of a back condition. The trial court refused to continue the case because Tippens’ testimony would be cumulative in light of the fact that there were several other investigating officers who should have possessed the same knowledge. At trial the Defendant elicited from Christy Jones Scott the testimony that she had unloaded two or three bags of laundry detergent from her mother’s truck after she had found her mother.

Regarding the need to investigate persons named as suspects in certain statements given to the defense by the State on January 19, 1990, the Defendant failed to show the materiality and relevance of any evidence such an investigation would yield. The Defendant has also failed to show that a different result would have been reached if the continuance had been granted. See Baxter v. State, 503 S.W.2d 226, 230 (Tenn.Crim.App.1973).

On the allegations regarding the need to examine the bedroom door, the Defendant sought to show that the footprint on the door was larger than the Defendant’s would have been. The door had been made available to the defense attorney for examination on January 26, three days before his motion. The trial court felt that the Defendant had failed to exercise due diligence in examining the door. Also, the point that Defendant wished to make, i.e., that the footprint on the door was not Defendant’s, was explored during the testimony of Sandra Lee Paltorah, a forensic scientist at the T.B.I. specializing in shoe track analysis. Paltorah testified that the print on the door was consistent with a smooth-soled shoe as opposed to the tennis shoe worn by the Defendant.

Finally, although the trial court denied the motion for continuance on the mistaken belief that FBI Agent Doug Dedrick would testify, Agent Dedrick’s testimony was presented to the jury through stipulation. When it became apparent that De-drick would not be at trial, defense counsel expressly stated he did not want a continuance because of the stipulation. We do not find that the trial court abused its discretion in refusing to grant Defendant’s motion for a continuance.

II.

ALLEGED T.R.CR.P. 26.2 ERROR

The Defendant avers that the trial court’s denial of counsel’s request for sufficient time to review the statements under Rule 26.2(d) constitutes reversible error.

The progenitor of Tennessee Rule of Criminal Procedure 26.2 is the 1957 decision of the United States Supreme Court in Jencks v. United States, 77 S.Ct. 1007, 353 U.S. 657, 1 L.Ed.2d 1103 (1957). In that case the Court held that defense counsel has a right to inspect prior statements or reports by a government witness, following direct examination of the witness, to the extent that those reports or statements are related to the witness’s testimony on direct examination, for the purpose of using them to prepare or conduct cross-examination. Jencks caused some controversy in the months after it was announced, centering on fears that it would force government prosecutors to turn over investigatory files, in their entirety, upon defense demand. To ensure against such an interpretation of the opinion in Jencks, the United States Congress enacted 18 U.S.C.A. § 3500, known from the time of its passage in 1957 as the Jencks Act. Its language was also incorporated into Federal Rule of Criminal Procedure 26. In Tennessee the right to inspect pretrial statements of a witness called to testify at trial, for the purpose of effectively cross-examining that witness, did not exist prior to the adoption of the Tennessee Rules of Criminal Procedure in July 1978.¹. This new production rule was initially included in Rule 16, which otherwise governs pretrial discovery and inspection, despite the fact that it involved “discovery” during trial and not before. Its misplacement in Rule 16 caused some confusion. See, e.g., State v. Robinson, 618 S.W.2d 754 (Tenn.Crim.App.1981).

In order to clarify the purpose and timing of the production of witness statements at trial, the provisions formerly contained in Rule 16(a)(1)(E) and (F) were recast as Rule 26.2 in 1984.

Rule 26.2(a) states: “After a witness ... has testified on direct examination, the trial court, on motion ... shall order the attorney ... to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.” [Emphasis added.] Subsection (d) states that the court “may recess proceedings in the trial for the examination of such statement and for preparation for its use in the trial.” [Emphasis added.] The purpose of Rule 26.2 is to enable counsel to examine a witness’s statements in order to test the credibility of that witness at trial. Our Court in interpreting Rule 26.2 has held that even in a capital case, the State is not required to produce witness statements until the conclusion of the witness’s testimony on direct examination. State v. Taylor, 771 S.W.2d 387, 391 (1989). Today, for the first time, we address what constitutes a sufficient time to review Rule 26.2 statements.

It should be emphasized that this case does not involve the denial of Rule 26.2 statements. The statements here were produced the evening before direct and cross-examination took place the following afternoon. The sole issue is whether counsel was afforded a reasonable opportunity to examine the statements. The time needed for a reasonable examination is necessarily related to the length and complexity of the statements. In this case six statements, totaling 64 pages, were given to counsel for overnight study and reflection.

Had April Ward been the State’s first witness the morning of trial and had the State produced her statements after her direct examination, we are of the opinion that a two hour recess would have been adequate for counsel to properly prepare for cross-examination. Here, the statements were given to counsel the night before (7:15 p.m.) and cross-examination began at approximately 5 p.m., the next afternoon just short of twenty-two hours later. We are of the opinion that defense counsel, and his defense team, were given a reasonable opportunity to examine and prepare to use the statements in cross-examining April Ward.

While neither state nor federal trial judges can require advance disclosure of statements, U.S. v. Algie, 667 F.2d 569 (6th Cir.1982) and State v. Taylor, supra, pros-editors should nevertheless avoid needless delay by following the State’s example here. We would strongly recommend early production of statements of witnesses in order to expedite the trial of the case and avoid lengthy recesses during trial. The District Attorney in this case provided defense counsel with April Ward’s six statements at 7:15 p.m. on the evening before April Ward’s testimony. This advance production satisfied the State’s duty under Rule 26.2 and avoided the needless delay of the trial.

At 4:05 p.m. the next day, shortly before the conclusion of the direct examination of April Ward, counsel for Defendant asked the court to allow him to start his cross-examination the next morning. The trial court responded by pointing out that the defense team, consisting of attorneys Carl Ogle, Jr., Stephen Ward, and an investigator, had “had the statements overnight.” The court denied counsel’s request for another night in which to review the statements. The trial court wished to proceed, apparently to allow April Ward to finish her testimony that day. The court was presented with a young girl who had participated in a brutal, ritualistic-type murder, who repeatedly cried on the witness stand, and who required several recesses in order for her to regain her composure. The trial judge did not abuse his discretion by completing April Ward’s testimony that afternoon.

III.

PHOTOGRAPHS AND VIDEOTAPE

The photographs and the videotape taken at the murder scene are highly probative, in that they show the condition of the body and clarify oral testimony. These depictions are certainly not pleasant, but they are not shocking or gruesome. Under State v. Banks, 564 S.W.2d 947 (Tenn.1978), the trial court did not abuse its discretion in permitting their introduction.

IV.

INTERRUPTIONS BY THE TRIAL COURT

The Defendant next asserts that the trial court prejudiced Defendant’s case by indicating to the jury throughout the trial that the court believed that the Defendant was guilty. The Defendant specifically complains of the trial court’s interruption of his cross-examination of Christy Jones Scott and of Officer Sam Owenby, both of which interruptions were apparently attempts to keep the examination moving along; and of the court’s statements during the cross-examination of Dr. Cle-land Blake that what the doctor had told the jury was “just what he’s told them” and that questions about why the doctor took fingernail clippings were academic and the answer obvious to anyone who had watched the television show Quincy. The Defendant also challenges comments by the court during the direct examination of T.B.I. scientist Robert E. McFadden to the effect that the record was “full of proof” that the bedroom door had been knocked off its hinges. This last statement was incorrect; but the proof elsewhere, including the photographs and McFadden’s subsequent testimony as well as the court’s own comments, made the mistake patent to the jury so that the Defendant could not have been prejudiced by the misstatement.

Finally, Defendant complains that the judge told the jury that they did not have to look at Ogle’s boot and a full-scale photograph of the footprint on the door when these items were passed as exhibits. The Defendant says that the court was disparaging the Defendant’s evidence. The record reveals, however, that the court was in the habit of telling the jurors that they did not have to look at potentially distasteful physical evidence, such as the cloth that had bound the victim, when it was passed to them. The boot comment was one episode of this behavior.

It is axiomatic that a trial judge should exercise care not to express any thought that might lead the jury to infer that the judge is in favor of or against the defendant in a criminal trial. Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7, 10 (1948). While we caution restraint in a trial court’s interjections and comments during trial, in the overall context of this case, the trial court’s behavior in the cited instances did not so clearly violate the mandate of impartiality as to infringe upon the Defendant’s right to a fair trial. Furthermore, no prejudice has been shown. We find no reversible error. See State v. Jenkins, 733 S.W.2d 528, 532 (Tenn.Crim.App.1987); State v. Howell, 698 S.W.2d 84, 86-87 (Tenn.Crim.App.1985); State v. Hardin, 691 S.W.2d 578, 581 (Tenn.Crim.App.1985).

V.

DR. BLAKE’S TESTIMONY

The Defendant next argues that Dr. Blake was not qualified to characterize the injuries on the victim’s back as “whipping marks” and those on her buttock as a slap injury. The admission of expert testimony is largely in the discretion of the trial judge. Arterburn v. State, 216 Tenn. 240, 391 S.W.2d 648, 655 (1965); State v. Taylor, 645 S.W.2d 759, 762 (Tenn.Crim.App.1982). Dr. Blake was a board certified forensic pathologist in practice in that field since 1963. He had conducted 2500 forensic investigations. The trial court did not abuse its discretion in allowing Dr. Blake to give his opinions on what had caused these injuries. See, e.g., Bryant v. State, 539 S.W.2d 816, 819 (Tenn.Crim.App.1976).

VI.

STATEMENTS MADE BY VICTIM

The Defendant insists that certain testimony of April Ward and her mother, Lettie Cruze, concerning statements made by the victim was inadmissible hearsay. The first such testimony objected to by Defendant was that of April Ward, to the effect that she was upset with Jones because of a conversation that Jones had had with her mother; that she was mad at Jones because “no one approved of us on the porch”; and that she hurt Jones because she hated her for going to her mother and trying to separate her from the Defendant. The trial court rejected the Defendant’s hearsay objections on the grounds that any statements of the victim described by Ward were not offered for their truth but to show Ward’s state of mind and what provoked her to harm the victim. We are in agreement with the conclusion of the trial judge that Ward’s testimony, as it related to the victim’s statements, was not hearsay inasmuch as it was not offered to prove the truth of the matter asserted. See T.R.E. § 801(c); State v. Coker, 746 S.W.2d 167, 173 (1987).

Defendant’s next objection was to the testimony of April’s mother that the victim had told her that as a rule she did not get involved in other people’s affairs but that she thought “April was a sweet little girl and she didn’t trust Gary Cau-ghron.” Informing the jury that “[t]rue or untrue, you may consider that this conversation took place,” the trial court overruled Defendant’s objection. Again, the import of this testimony was that the conversation between April’s mother and the victim occurred, not that the victim’s statement was true. No hearsay was involved. The trial court did not err in admitting the testimony.

VII.

COMPETENCY OF WARD TO TESTIFY

Defendant argues that the failure of the trial court to ask April Ward whether she understood the difference between telling the truth and a lie and whether she comprehended the importance of telling the truth rendered the competency evaluation conducted before she testified inadequate. Prior to trial, the court granted the Defendant’s request for a competency hearing as to Ward, then seventeen, because she was a juvenile. At the hearing, the trial judge asked Ward some general questions, some questions about how she was doing in school and how her counseling was proceeding, and some questions about her awareness of her testimony. He then declared her competent to testify.

Under T.R.E. 601, see also T.C.A. § 24-1-101, no one is automatically barred from testifying simply because of age or mental status.² So long as a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rule or statute does not provide otherwise, the witness is competent. The question of competency is a matter for the trial court’s discretion. Arterburn v. State, supra, 391 S.W.2d at 657; State v. Braggs, 604 S.W.2d 883, 886 (Tenn.Crim.App.1980); State v. Nelson, 603 S.W.2d 158, 168 (Tenn.Crim.App.1980). The court did not abuse its discretion here.

VIII.

LEADING QUESTIONS

The Defendant avers that the trial court erred in allowing the prosecution to ask leading questions of April Ward on direct examination. The State asserts that this issue should be treated as waived because, as the State correctly points out, the Defendant has failed to cite to the location in the record of the specific questions of which he complains. Our examination of the record shows at least five occasions when Defendant objected to the State’s questioning of Ward as leading.

Some of the questions objected to were leading, some were not. T.R.E. 611(c) provides that “[Reading questions should not be used on the direct examination of a witness except as to develop testimony.” In D. Paine, Tennessee Law of Evidence, § 611.6 (2nd ed. 1990), the writers suggest that leading questions may be used to shorten the time needed for a witness to testify or to facilitate the direct examination of a young or otherwise impaired witness. Ward was a young and highly emotional witness and at times it was necessary to lead her “to develop” her testimony. Furthermore, there was no reversible error, if any, in failing to sustain the Defendant’s objections since prejudice is not clearly shown. See Hale v. State, 198 Tenn. 461, 281 S.W.2d 51, 58 (1955); Mothershed v. State, 578 S.W.2d 96, 99 (Tenn.Crim.App.1978).

IX.

JIMMY HUSKEY’S TESTIMONY

Defendant challenges the admissibility of Huskey’s testimony that in 1986 the Defendant listened to hard rock music, drew sketches of “demons and stuff” like that on record album covers, had a pool stick that broke down into three pieces, had a light-colored tablecloth or curtain material in the back of his car, talked about tying .up women during sex and told Huskey that slapping women “on the butt really turned him on.” The State asserts, correctly under T.R.A.P. 3(e), that all of these alleged errors except that involving the Defendant’s drawings of demons have been waived because of the failure to raise them in the motion for new trial.

The Defendant argues that the evidence about his purported drug use, sexual practices, attachment to rock music, and drawing pictures of demons is evidence of other crimes, wrongs or acts, prohibited by T.R.E. 404(b). He also contends that this evidence was irrelevant. The testimony concerning the pool stick, the table cloth material, and slapping women on the buttocks was relevant to connect Defendant to this crime and corroborate the accomplice’s testimony. The testimony involving drug use, “satanic” sketches and listening to rock music, while corroborating statements made by the accomplice, should not have been admitted but there is no harmful error under the facts of this record since April Ward’s testimony had already presented these features of the Defendant’s character.

X.

LETHE CRUZE TESTIMONY

The Defendant further complains that the trial court erred in admitting testimony by Lettie Cruze that around the time of the murder, her daughter, April Ward, was having trouble in school and crying a lot. He also objects to Cruze’s testimony that the Defendant “sneaked around” her house for some period of time after the murder. We find no error, although the relevance of this evidence is marginal. Testimony about April’s emotional reaction to the murder tends to bolster her credibility, as does testimony about her continued contact with the Defendant.

XI.

RECALL OF CHRISTY SCOTT

Over the Defendant’s objection the trial court allowed the State to recall the victim’s daughter, Christy Jones Scott, to testify that her mother owned a collection of shot glasses and a pink Oral B toothbrush. The evidence was relevant because of Ward’s testimony about drinking the victim’s blood from a shot glass and Cruze’s testimony about the Defendant’s pink toothbrush. Allowing the recall of a witness is left to the sound discretion of the trial judge, whose decision will only be disturbed upon a showing of abuse of discretion. State v. Hartman, 703 S.W.2d 106, 116 (Tenn.1985); Lillard v. State, 528 S.W.2d 207, 212 (Tenn.Crim.App.1975). There was no abuse of discretion here.

XII.

ATTEMPTED SUICIDE

The Defendant complains that the court should not have allowed TBI Agent David Davenport and Detective Kenny Bean to testify about Defendant’s attempted suicide because information about the attempt was part of a statement made by the Defendant but not supplied to the defense as required by T.R.Cr.P. 16(a)(1)(A). Agent Davenport did not testify about the attempted suicide. There is therefore no merit to this part of the issue. Detective Bean did testify that on August 25, 1988, when he asked Defendant why he attempted to kill himself after Davenport had initially talked with him about Jones’s murder, Defendant replied that he was depressed and had a lot on his mind. The proof is ambiguous as to whether the State gave Defendant this statement under Rule 16. The State asserts that it did. It is not clearly established in the record that the State violated Rule 16(a)(1)(A); but, if the State did violate the Rule, the Defendant has not shown any actual prejudice caused by failure to comply with the discovery order which would require exclusion of this evidence. See State v. Payne, 791 S.W.2d 10, 16 (Tenn.1990); State v. James, 688 S.W.2d 463, 466 (Tenn.Crim.App.1984).

XIII.

QUALIFICATIONS OF TWO JURORS

The record shows that juror Jerry McGill was related to State’s witness John Brown by marriage. Brown was a patrolman with the Sevier County Sheriff’s Department who had investigated the Defendant when he received a call on July 13, 1987, about Defendant’s car being in a ditch. At trial, he testified that the Defendant appeared nervous and had a small cut on his face. Although the trial court told defense counsel that he could explore this situation “later at a proper time,” counsel never did so.

The second episode occurred when State’s witness Tom Diddly recognized one of the jurors as the owner of the wrecker service that had towed Defendant’s car when the witness worked on it. Again defense counsel indicated he would address any problem later but apparently failed to do so. Where a juror is not legally disqualified or there is no inherent prejudice, the burden is on the Defendant to show that a juror is in some way biased or prejudiced. Bowman v. State, 598 S.W.2d 809, 812 (Tenn.Crim.App.1980); see also State v. Taylor, 669 S.W.2d 694, 698-700 (Tenn.Crim.App.1983). Defendant has not done this and we find no error.

XIV.

JUROR’S COMMENTS

The Defendant avers that the trial court erred in not declaring a mistrial because of a juror’s comments. During cross-examination of April Ward, when defense counsel asked Ward why she had lied to law enforcement officers regarding whom she had told about the crime, a juror whispered loudly, “What’s the difference?” No further mention was made of the episode until the next morning, when counsel indicated he would like to address it later that day; but no action was taken until just before the jurors began deliberations, when Van Helton, counsel’s assistant, testified that the juror who had made the statement was Roy Hodge, an ex-constable, and that his manner was aggravated and “put out.” Because there were questions about the juror’s objectivity and the Defendant was at “enormous risk,” the court removed the juror. Defendant requested no further action and did not request the court to declare a mistrial. The State asserts that the Defendant waived this issue.

If the issue is not considered waived, there is no indication in the record and no reason to believe that the jurors who remained were prejudiced against the Defendant by the juror’s remark, which was a comment upon counsel’s repetitive questioning not upon the merits of the case. In the absence of proof to the contrary, it is assumed that all of the jurors who rendered the verdict were impartial and qualified and that a mistrial was not warranted. See Graves v. State, 489 S.W.2d 74, 81 (Tenn.Crim.App.1972).

XV.

TRIAL JUDGE’S ACTIONS

The Defendant next avers that the trial court erred in unduly restricting his direct examination of T.B.I. Crime Laboratory personnel. The Defendant specifically cites to interruptions by the court occurring during defense counsel’s direct examination of Robert McFadden, a fingerprint expert from the T.B.I. lab, who was Defendant’s first witness. The defense sought to show that, despite a thorough and meticulous investigation, there was absolutely no evidence connecting Defendant with the crime scene. When defense counsel appeared to be developing this theory by an unnecessarily detailed examination of the forensic scientist, the trial court began interrupting to curtail what it considered irrelevant and unnecessary testimony. The court urged the defense counsel to move along by directing the examination to the evidence that was material and important for the jury to consider.

It is well-settled that the propriety, scope, manner and control of the examination of witnesses is a matter within the discretion of the trial judge, subject to appellate review for abuse of discretion. State v. Elliott, 703 S.W.2d 171, 176 (Tenn.Crim.App.1985). The court in the present case, however, was unusually active in directing the form that questioning should take. The most serious episode of interjection occurred when the trial judge literally took over the questioning of the witness. Another interjection concerned McFadden’s examination regarding whether the door was knocked off its hinges and has already been addressed in Section IV. A further complaint involves a bench conference at which the court urged the Defendant to get to the point before he exhausted the patience of the court and jury.

The trial judge’s actions were unnecessary but did not deprive Defendant of a fair trial or prejudice him in any way. See, e.g., State v. Jenkins, supra, 733 S.W.2d at 532; Pique v. State, 480 S.W.2d 546, 550-551 (Tenn.Crim.App.1971). Defendant was not precluded from developing his theory, although it was not done in the detailed, point by point manner his counsel preferred; and the court did not prohibit any testimony that was shown to be relevant. Furthermore, the court’s actions did not reflect the trial court’s views on the Defendant’s innocence or its opinion of the merit of Defendant’s proof. We find no reversible error in the court’s conduct during McFadden’s testimony.

XVI.

IN CAMERA INSPECTION OF THE STATE’S FILE

Defendant filed a pretrial motion for the court to conduct an in camera inspection of the State’s entire files, as well as the files of any agencies or individuals that had investigated the case for the State, and to determine if the State had failed to hand over anything that might be vital to the preparation of the defense. The court was also requested to have copies of all these files sealed and filed for any appeal. At the beginning of trial the Defendant asked the court to inspect the files in camera to look for any possible exculpatory evidence. The court refused and pointed out that the district attorney general was aware of his ethical duties and stated that the court would look at anything the Defendant called to its attention but would not “plow” through all the files and evidence.

Despite assertions that he had been informed that the State had failed and refused to disclose certain material, Defendant never requested the court to examine any specific document or evidence. The record does not support any allegation that the State has failed to comply with its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or Rule 16, T.R.Cr.P. The trial court did not abuse its discretion in refusing to examine the State’s files. State v. Daniel, 663 S.W.2d 809 (Tenn.Crim.App.1983), cited by Defendant, only indicates that an in camera inspection is necessary once it has been shown that there is material producible under Rule 16, in that case Jencks material.

XVII.

BENCH CONFERENCES

Defense counsel repeatedly asked to approach the bench prior to the testimony of certain State’s witnesses to present motions in limine objecting to the admission of matters that might potentially come out during the witnesses’ testimony. These were objections ordinarily made when and if the potentially objectionable testimony occurred. After allowing the Defendant to approach the bench prior to the testimony of Dr. Cleland Blake, April Ward, Jimmy Lynn Huskey, and Lettie Marie Cruze, when the State called witness Robert Yoa-kum, and defense counsel again approached the bench, the trial court refused to continue to “pre-review” the testimony, told defense counsel to object to questions as they were asked, and promised that it would then rule on the objections.

With a few exceptions, see, e.g., Tenn.R.Evid. 608 and 609, the trial court is given broad discretion in the timing of its decisions on the admissibility of evidence. D. Paine, Tennessee Law of Evidence, § 103.3 (2d ed. 1990). The trial court also has broad discretion in controlling the course and conduct of the trial. Pique v. State, supra, 480 S.W.2d at 550-551. Defense counsel was in effect asking the court as a regular practice, to speculate on the admissibility of evidence, without any idea of the context in which the evidence would be presented. The trial court did not abuse its discretion in requiring the Defendant to object when questions were actually asked.

XVIII.

STATEMENT OF KENNY PHILLIPS

The Defendant alleges that the trial court erred in refusing to allow introduction of an extrajudicial statement made by one Kenny Phillips, an inmate at one of the state prison facilities, who was called as a witness for the defense. Phillips had given a statement to law enforcement officials on July 15, 1987, in which he stated that two persons, a man and a woman who were not the defendant and April Ward, had approached him about robbing and killing a woman in Pigeon Forge, possibly the victim Dorothy Ann Jones, although Phillips did not give the woman’s name. The defendant also took a statement to this effect from Phillips.

When the time came for Phillips to testify, he refused because, he said, his earlier statements were lies concocted to get a reward offered for any evidence that would help solve Jones’s murder. Phillips seemed to think that by testifying he would be risking a charge of perjury. Even though the trial court explained to him that as long as he testified truthfully he would not be committing perjury, Phillips refused to testify. The trial court held him in contempt. Defense counsel then argued that he should be allowed to read Phillips’ previous statements into evidence because Phillips was “unavailable” under T.R.E. 804. Noting that the statements were admitted falsehoods, the trial court refused to allow their introduction.

The Defendant asserts on appeal that the statements should have been admitted because of constitutional considerations and cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and F.R.E. 804(b)(5). See also .Tenn. R.Evid. 804, Advisory Commission Comments. The hearsay statements sought to be admitted, however, bore none of the “persuasive assurances of trustworthiness” present in Chambers, see 410 U.S. at 302, 93 S.Ct. at 1048-1049 (confession made spontaneously to a close acquaintance soon after murder, corroborating evidence present, statement was self-incriminatory and unquestionably against interest). The Defendant asserts that Phillips’ recantation is a lie, pointing out that no reward was being offered on July 15, 1987. With nothing more to go on than these allegations, the trial court did not err in excluding the statements.

XIX.

UNDUE EMPHASIS TO AGGRAVATING CIRCUMSTANCE

At sentencing the trial court instructed as an aggravating circumstance: “The defendant allowed the victim to he treated with exceptional cruelty during the commission of the offense.” This is not a statutory aggravating circumstance although it is similar to the circumstance in T.C.A. § 39-13-204(i)(5) [previously § 39-2 — 203(i)(5) ]. After a recess, during which the jury went to lunch, the judge informed counsel that after reflection he had concluded that he should change the charge to conform more to the language of T.C.A. § 39 — 2—203(i)(5) requiring torture or depravity of mind and should define “cruel,” “torture” and “depravity.” Defense counsel did not object to a corrected charge. The jury, which had not begun deliberations, was called in; and the trial judge informed them that he was striking the charge on the first aggravating circumstance and inserting in place of it the instruction that “[t]he murder was especially cruel in that it involved torture or depravity of mind.” The court next defined “cruel,” “torture” and “depravity” in accord with State v. Williams, 690 S.W.2d 517, 529-530 (Tenn.1985). Defense counsel then requested that the court also tell the jury that it had not changed the instruction simply to draw attention to that factor. The court therefore specifically instructed the jury that it had acted, not to emphasize that part of the charge, but to “comport exactly” with the law. There is no merit to Defendant’s assertion that the trial court’s actions drew undue attention to this part of the charge.

XX.

CLOSING ARGUMENT

The Defendant avers that the trial court erred in not permitting him to make the final closing argument at sentencing. The statute, T.C.A. § 39-13-204(d), specifically grants the State the right of closing. This Court has previously found this issue meritless. See State v. Melson, 638 S.W.2d 342, 368 (Tenn.1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).

XXI.

DEATH QUALIFIED

The Defendant argues that questioning jurors about their beliefs on the death penalty biases the jury toward a finding of guilt and acceptance of the death penalty in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 8 and 9, of the Tennessee Constitution. Both this Court and the United States Supreme Court have rejected this and similar arguments. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); State v. Coker, 746 S.W.2d 167, 171 (Tenn.1987); State v. McKay, 680 S.W.2d 447, 450, 453-455 (Tenn.1984).

XXII.

PROPOSED INSTRUCTION

We find no error with regard to the trial court’s refusal to instruct the jurors that they should presume that the sentence they assess will actually be carried out — that if a life sentence is imposed, a life sentence will he served and, likewise, that if the death penalty is assessed, the Defendant will be executed. This proposed instruction was rejected by the Court in State v. Payne, 791 S.W.2d 10, 21 (Tenn.1990), and State v. Melson, 638 S.W.2d 342, 367 (Tenn.1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).

XXIII.

SUFFICIENCY OF EVIDENCE TO SUPPORT THE VERDICT

The Defendant asserts that no evidence corroborates the testimony of April Ward, his accomplice. There is sufficient corroboration; e.g., Jimmy Huskey’s and Tom Bentley’s testimony about the fabrics (blue terry cloth and lacy material) in the Defendant’s possession; testimony of Defendant’s appearance and behavior the morning after the murder; the presence of the turquoise ring at the victim’s house; and Defendant’s statements to his cellmates, Roy Haynes, Bobby Floyd, and Tim McGaha. See State v. Henley, 774 S.W.2d 908, 913 (Tenn.1989); State v. Sparks, 727 S.W.2d 480, 483 (Tenn.1987); State v. Carter, 714 S.W.2d 241, 244-245 (Tenn.1986).

XXIV.

SUFFICIENCY OF EVIDENCE TO SUPPORT AGGRAVATING CIRCUMSTANCE

Citing State v. Pritchett, 621 S.W.2d 127, 139 (Tenn.1981), in which the victim died instantaneously from the first gunshot fired, the Defendant argues that the record does not support a finding that the Defendant tortured the victim before her death. He argues that Jones was unconscious during most of the acts that occurred that night. The proof shows that while Jones was alive and conscious, see State v. Williams, supra, 690 S.W.2d at 529-530, the Defendant told her that she was going to die as she begged for her life. He then struck her brutally and repeatedly about her head until, according to April Ward, she no longer moved. Dr. Blake’s testimony was that the head injuries would have rendered her unconscious. It was April’s testimony that it was only after the victim stopped moving that the other abuse occurred. The fact that the victim was tied and gagged, however, raises a question as to whether she was really unconscious during the subsequent abuse, as does the fact that she reportedly “tightened up” when the Defendant tried to achieve sexual penetration.

In any event, the proof shows that in addition to inflicting the head injuries, the Defendant tied Ann Jones to the bed, attempted to rape her (probably anally), beat her with a pool stick, slapped her buttocks so hard that an imprint of his hand was left on her skin, gagged and strangled her, and drank her blood after smearing it on himself and his accomplice, with whom he had sex as the victim lay dying nearby. These facts undeniably satisfy the definition of depravity of mind in State v. Williams, 690 S.W.2d at 529, and illustrate a “consciousness materially more ‘depraved’ than that of any person guilty of murder.” Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980).

Similar beating of a victim was held to support a finding of aggravating circumstance (i)(5) in State v. Barber, 753 S.W.2d 659, 668 (Tenn.1988); State v. McNish, 727 S.W.2d 490, 494 (Tenn.1987); and State v. Cone, 665 S.W.2d 87, 94-95 (Tenn.1984). In State v. Groseclose, 615 S.W.2d 142 (Tenn.1981), and State v. Strouth, 620 S.W.2d 467 (Tenn.1981), in which the victims were unconscious for part of the time, death penalties rendered under this aggravating circumstance were upheld.

In this case the proof vividly shows that this murder involved both torture and depravity of mind. The Defendant taunted the victim, despite her pleading, “Please don’t hurt me,” and told her she was going to die. The evidence fully supports the jury’s finding of the aggravating circumstance in § 39-2-203(i)(5) (1982).

XXV.

CONCLUSION

We find no error in the guilt phase or sentencing phase of this case. In accordance with the mandate of T.C.A. § 39-13-206(c)(1)(D) [formerly T.C.A. § 39-2-205(c)(4)], we find that the sentence of death was not imposed in an arbitrary fashion, that the evidence supports the jury’s finding of the statutory aggravating circumstance, and that the evidence supports the jury’s finding of the absence of any mitigating circumstances sufficiently substantial to outweigh the aggravating circumstance so found. Further, our comparative proportionality review convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the Defendant. See State v. West, 767 S.W.2d 387 (Tenn.1989); State v. O’Guinn, 709 S.W.2d 561 (Tenn.1986); State v. Alley, 776 S.W.2d 506 (Tenn.1989). This is one of the most brutal and sadistic killings this Court has reviewed. We are of the opinion that this senseless, and brutal killing clearly warrants the imposition of the death penalty. We therefore affirm the conviction of first degree murder and the sentence of death. The sentence will be carried out as provided by law on the 10th day of August, 1993, unless otherwise ordered by this Court or by other proper authority. Costs are adjudged against the Defendant.

O’BRIEN and ANDERSON, JJ., concur. DAUGHTREY, J., and REID, C.J., dissent. See separate dissenting opinion.

1 . T.C.A. § 40-2441, enacted in 1963, permitted pretrial discovery of a confession or statement against interest made by the accused. It did not provide for the production of statements by witnesses under any circumstances. T.C.A. § 40-2044, enacted in 1968, permitted pretrial discovery of documents, photographs, and tangible objects. Under caselaw interpreting this statute, discovery of statements by witnesses other than the defendant was not permitted. See, e.g., Hudgins v. State, 3 Tenn.Cr.App. 148, 458 S.W.2d 627 (1970).

2 . T.C.A. § 24-1-101 was repealed in 1991 (Cau-ghron was tried in 1990). Also, the language of T.R.E. 601 (“Every person of sufficient capacity to understand the obligation of an oath or affirmation is competent to be a witness except as otherwise provided in these rules or by statute.’’) has since been changed to "Every person is presumed competent to be a witness except as otherwise provided in these rules or by statute.”