IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1997 February 19, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CC-00174 )
Appellee, )
)
) MARION COUNTY
VS. )
) HON . THOM AS W. G RAHAM CHARLES HAMLIN, ) JUDGE )
Appe llant. ) (Direct Appeal - First Degree M urder;
) Voluntary Man slaughter)
FOR THE APPELLANT: FOR THE APPELLEE:
WIL LIAM H . ORT WE IN JOHN KNOX WALKUP Ortwein & Associates, P.C. Attorney General and Reporter 723 McCallie Avenue Chattanooga, TN 37403-0016 KAREN M. YACUZZO Assistant Attorney General WILLIAM C. KILLIAN 450 James Robertson Parkway No. I Oak Avenue Nashville,TN 37243 Jasper, TN 37347 J. MICHAEL TAYLOR
District Attorney General
STE VE ST RAIN
Assistant District Attorney Jasper, TN 37347
OPINION FILED ________________________
AFFIRMED IN PART; AND MODIFIED IN PART; REMANDED FOR RE- SENTENCING
JERRY L. SMITH, JUDGE
OPINION
On May 19, 1995, a Marion County jury convicted Appellant Charles Ham lin of one count of first degree murd er and one count of voluntary manslau ghter. On June 29, 1995, the trial court imposed concurrent sentences of life imprisonment for the first degree murder conviction and seven years and six months for the voluntary m anslau ghter co nviction. Appe llant ch alleng es his convictions, raising the following issues:
1) whether the evidence was sufficient to support Appellant’s conviction for first degree mu rder;
2) whether the State prevented Appellant from having a fair trial by failing to disclose exculpatory evidence;
3) wheth er the Sta te enga ged in pr osecu torial misc onduc t;
4) whether the trial court erred when it failed to examine the State’s file for any un disclo sed e xculpa tory m aterial;
5) whether the trial court erre d when it allowed a witness fo r the State to testify about the effects of methamphetamine use; and 6) whethe r the trial cou rt erred when it ruled th at a gu n and a boo t could not be admitted into evidence.
After a review of the record, we affirm the judgmen t of the trial cou rt in part, modify the conviction of first degree murder to second degree murder and remand this case to the trial court for re-sentencing on the conviction of second degree m urder.
I. FACTS
Clay Haynes testified that on the morning of February 19, 1994, Glenn Wallace, Jr., yelled at him for waving to his wife , Sandy Wallace. A short time later, Haynes drove to his fa ther’s h ome , place d two g uns in his truck, and drove to the home of Glenn Wa llace, Jr. Wh en he arrived , Hayn es pick ed up one o f his
3
guns, got out of his truck, and challenged Glenn Wallace, Jr., to a fight. When he saw that Glen n W allace, Jr., was una rmed, Ha ynes put his gun ba ck in his truck and then he and Glenn W allace, Jr., began fighting. As Haynes began beating Glenn Wallace, Jr., Glenn Wallace, Sr., arriv ed an d told Haynes to stop. Haynes then heard a gunshot and he saw Glenn Wallace, Sr., fall to the ground. Haynes heard some more gunshots, saw Glenn Wallace, Jr., lying on the ground, and saw Appellant standing a few feet away. At this point, Haynes fled the scene in his truck.
Christy Haynes testified that she was at her grandfather’s house when her father, Clay Haynes, took two guns out of the house and put them in his truck. Clay Haynes then told Christy Haynes that he was upset over something that Glenn W allace, Jr., had done earlier that morning. When Clay Haynes drove away, Christy Hayn es ca lled Ap pellan t and to ld him that she was worried about her father because he was taking some guns with him to confront Glenn Wallace, Jr. She aske d Appellant to m ake sure tha t nothing happ ened to he r father, and Appellant assured her that her father would be safe.
Appellant testified that h e was working on a truck in his yard when he heard his da ughte r, San dy W allace , yell for him to help her remove her children from the hom e of Glen n W allace, Jr. Appellant then walked over to Glenn Wallace, Jr.’s home and sa w Glen n W allace, Jr., figh ting with C lay Hayn es. At this point, Glenn W allace, Sr., approa ched Ap pellant and told him to leave because the fight was not his concern. Appellant testified that he then shot Glenn Wa llace, Sr., when he po inted h is gun at App ellant a nd thre atene d to kill him. Appellant also testified that he shot Glenn Wallace, Jr., when he yelled and
4
began running in his direction. Appellant adm itted tha t Glen n W allace , Jr., did not have any weapons in his hand when Appellant shot him. Appellant testified that he carried a loaded gun with him at all times.
Appellant was convicted of voluntary manslaughter for the killing of Glenn Wa llace, Sr., and first degree murder for the killing of Glenn W allace, Jr.
II. SUFFICIENCY OF THE EVIDENCE
Appellant conten ds that the evidenc e was insuffic ient to s uppo rt his conviction for the first degree m urder of Glenn Wallace, Jr. Specifically, Appellant contends that the evidence was insufficient because there was no proof that the killing was committed with premeditation and deliberation. We agree.
When an appellant challenges the sufficiency of the evidence, this C ourt is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State ’s witness es and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appellant to demons trate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the sufficiency of the evidence is contested on appeal, the relevant question for
5
the reviewing court is wheth er any rational trier of fact could have found the accused guilty of every element of the offense be yond a re asona ble dou bt. Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducting our evalu ation o f the co nvicting eviden ce, this Cour t is precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, Rule 13(e) of the Tennessee Rules of Appellate Procedure provides, “findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings b y the trier of fac t beyond a reaso nable d oubt.”
W hen Glenn Wallace, Jr., was killed in 1994, Tennessee’s first degree murder statute provided that “[f]irst de gree m urder is: [a]n in tention al, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202 (1993). 1 Premeditation requires a showing of a previously formed design or intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the offense be committed with cool purpose, free of the passions of the mom ent. Id. Delibe ration also requires “some period of reflection, during which the mind is free from the influence of excitement.” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 19 92). Preme ditation and delibe ration are determinations for the jury and may be inferred from the manner and circumstances of the killing. State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. App. 19 95). How ever, a jury m ay not en gage in specu lation. Id.
1 A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing of another.”).
6
This Court has previously recognized the nature of proof which must be presented before a jury may properly infer either deliberation or premeditation:
(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity;
(2) facts abo ut the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must h ave inten tionally killed ac cording to a preco nceived design.
State v. Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997) (citing State v. Gentry, 881 S.W .2d 1, 4–5 (Tenn . Crim. A pp. 199 3)).
In this case, the State failed to introduce any evidence establishing the elements of premeditation and deliberation. First, there was absolutely no evidence that Ap pellant had planned to kill Glenn Wallace, Jr., or that he engaged in any activity to further that plan. There was also no proof that Appe llant killed with a “cool purpose” or that he had any time between his decision to kill and the act of killing during which he could reflect on his decision. The State’s only argument on appea l is that the jury could have inferred that after he received the telephone call from Christy Haynes about the fight between Clay Haynes and Glenn Wallace, Jr., Appellant dispassionately went to the scene of the fight for the purpose of killing Glenn W allace, Jr. Wh ile this theory may ha ve been true, it remains only a theo ry becau se the S tate failed to s upport it with evidence. Wh ile the jury may have speculated that the State’s theory was true, specu lation is not a substitute for proof. West, 844 S.W .2d at 148 .
In addition, the S tate failed to in troduce any evide nce ab out App ellant’s relation ship with Glenn Wallace, Jr., that established a motive for the killing.
7
Although there w as so me e videnc e that A ppella nt’s daughter and Glenn Wallace, Jr., had been experiencing some marital difficulties, there was no evidence that Appellant himself had e xperienced a ny problem s with Glenn W allace, Jr. Further, the State did not introduce any facts about the nature of the killing from which the jury c ould have inferred that Appellant had intentionally killed according to a preconceived design. In fact, none of the State’s witnesses testified that they had even seen the actual killing of Glenn Wallace, Jr., they only testified that they heard gunshots and then saw Glenn Wallace, Jr., lying on the ground and Appellant standing nearby. In deed, th e only evid ence p resente d by the S tate about the natur e of the killing was evid ence th at Glenn Wa llace, Jr., had died from a single gunshot wound to the head. This evidence does not establish either preme ditation or deliberation in an y way.
“The law in Tennessee has long recognized that once the homicide has been estab lished , it is presu med to be m urder in the seco nd deg ree. Th e state bears the burden of proof on the issue of premeditation and deliberation sufficient to elevate the offense to first-degre e murde r.” Brown, 836 S.W.2d at 543 (citation omitted). In this case, the State has simply failed to meet this burden and the presumption of second degree murder is therefore unrebu tted. There is ho wever, amp le evidence in the record to establish that Appellant knowingly shot and killed Glenn Wallace, Jr., without the adequate provocation required to reduce the conviction to voluntary man slaughter. 2 Acco rdingly , we m odify A ppella nt’s conviction to second degree murder and we remand this case to the trial court for resentencing.
2 “Voluntary manslaughter is the intentional or knowing killing of another in a state of passion produced by adequate pro vocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code A nn. § 39-13-211(a) (1997).
8
III. SUPPRESSION OF EVIDENCE
Appellant contend s that he d id not rece ive a fair trial bec ause th e State suppresse d exculpatory evidence. Specifically, Appellant claims th at the Sta te withhe ld four witnes s state men ts and a lab re port tha t were fa vorab le to his defense.
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held that the prosecution has a constitutional duty to furnish th e accu sed with exculpa tory eviden ce perta ining to either the accused’s guilt or innocence and the potential punishment that may be imposed. Failure to reveal exculpatory evidence violates due process where the evidence is materia l either to guilt or pun ishme nt, irrespec tive of good faith or bad faith of the pros ecution. Id. 373 U.S. at 87, 83 S. Ct. at 1196–97. The prosecution must also disclose evidence which may be used b y the defe nse to impeach a witness . Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763, 766, 31 L .Ed . 2d 104 (1972); Workm an v. State, 868 S.W.2d 705, 709 (Tenn. Crim. App . 1993).
Before a reviewing court may find a due process violation under Brady, all of the following four prerequisites must be satisfied:
1) The defendant must have requested the information (unless the evidence is obvious ly exculpa tory, in which case the State is bo und to release the inform ation whethe r requested o r not);
2) The State must have suppressed the information;
3) The information must have been favorable to the accused; and 4) The informa tion mu st have b een m aterial.
9
State v. Evans, 838 S.W.2d 185 (Tenn. 1992). In Kyles v. Whitley, 514 U.S. 419, 434, 115 S. C t. 1555, 15 66, 131 L. Ed. 2d 490 (1995), the United States Supreme Court stated that in determining whether information is material, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of co nfidence.”
A. Witness S tatemen ts
Appellant conten ds that the State violated Brady when it failed to disclose the pre-trial statements of four witnesses. We disagree.
First, Appellant contends that the State violated Brady when it failed to disclose the pre-trial s tateme nt of W illiam Rap ier. However, Appellant has failed to identify any p art of the rec ord that ind icates tha t Rapier made any such statem ent, that the State p osse ssed the sta teme nt, or tha t it was th e leas t bit exculpatory. Indeed, the trial court specifically found tha t there was no proof that the State ever had any state ment fro m Ra pier that it failed to disclose .
Second, Appellant contends that the State also violated Brady when it failed to disclose the pre-trial s tateme nts of Joyce Da vis and Ton y Wa llace, Jr. 3 Howeve r, Appella nt conce des tha t the State provid ed him with these statem ents during trial. This Court has previously stated that “[i]f previously undisclosed evidence is disclo sed d uring tria l, then no Brady violation occurs unless prejudice
3 The record indicates that both of these witnesses gave pre-trial statements in which they admitted that they had initially failed to tell the police that Tony Wallace, Jr., had taken a gun from the crime scene and hidden its existence from investigators.
10
results from the delayed disc losure.” State v. Jim Inman, No. 03C01-9201-CR- 00020, 1993 WL 4833 21, at *9 (Ten n. Crim . App., Knoxville, Nov. 23, 1993) (citing United States v. Word , 806 F.2d 658, 665 (6th Cir. 1986)). Appellant has failed to indicate anything that he could or would have done differently if he had known about these statements before trial. Indeed, the record indicates that Appe llant’s counsel reviewed each statement and thoroughly cross-examined both witnesses about their pre-trial statements. Thus, Appellant has not shown that he was prejudiced by disclosure of these statements during trial as opposed to disc losure before trial.
Finally, Appellant contends that the State violated Brady when it failed to disclose a pre-tr ial state men t of San dy W allace in which she mentioned the existence of another witness, Sherry Dixson, about whom Appellant had no previous knowledge. Appellant is correct that the general rule is that the prosecution has “a duty to disclose the names and addresses of witnesses who could exonera te the accu sed, corr oborate the ac cuse d’s po sition in asse rting his innocence, or possessed favorable information that would have enabled defense counsel to conduct further and possibly fruitful investigation.” State v. Mars hall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). However, “[t]he pro secu tion is not required to disclo se info rmatio n that th e acc used alread y poss esse s or is a ble to obtain.” Id. “Wh en excu lpatory evidence is equally available to the prosecution and the accused, the accused ‘must bear the responsibility of [his] failure to seek its discovery.’” Id. (citation om itted). In this case, the information contained in Sandy Wallace’s statem ent was equally av ailable to b oth parties . Indeed, Sandy Wallace is Appellant’s daughter and she testified as a defense witness at trial. There is absolu tely no indic ation that had A ppellant as ked h is
11
daughter whether she knew of any other witnesses, she would have refused to disclose the na me o f Sher ry Dixson. Further, the record indica tes that Sherry Dixson lived in the neighborhood where the killings took place. Thus, Appellant could easily have identified her as a possible witness and asked her whether she had seen or heard anything on the day of the killings. In short, because this information was equally available to both Appellant and the State, Appellant “must bea r the respons ibility of [his] failure to seek its discovery.” Id.
B. Lab Rep ort
Appellant contends that he did no t receive a fa ir trial becau se the S tate suppressed a lab report of tests performed on the shirts that Glenn Wa llace, Sr., was wearing when he was killed. We disagree.
Although the sequ ence of even ts con cernin g the la b repo rts is somewhat unclear, it appears that the trial court originally imposed a deadline of July 31, 1994, for the State to provide Appellant with results of tests preformed on the victims. At that time, the State notified Appellant and the court that it could not predict when the Tennessee Bure au of In vestiga tion wo uld complete its testing and thu s, it could no t guaran tee disclo sure of the reports b y a certain d ate.
On Februa ry 1, 1995 , the T.B .I. reported the resu lts of its tests on the body of Glenn W allace, Sr. The results indicated that there was gunshot residue on his hands and that he “could have fired, handled, or [bee n] nea r a gun when it fired.” The se resu lts were inc luded in a stipulation th at was re ad to the ju ry.
12
On March 8, 1995, the State notified Appellant and the court that it had submitted Glenn Wallace, Sr.’s shirts for gunshot residue testing. The State indicated that it had not submitted the shirts earlier because it had not known that they were in the possession of the local sheriff’s office. Appellant and the court both agreed that the State had not intentionally withheld the evidence, and the court informed Appellant that he could request a continuance if he needed additional time to review the lab resu lts when th ey were released . The T .B.I. released its report on May 3, 19 95. The test results indicated that there was gunshot residue on both the shirt and undershirt of Glenn Wallace, Sr., but because of the a bsen ce of g unpo wder o r lead va por res idues , it was n ot pos sible to determine a muzzle-to-garment distance. These findings were also included in the stipu lation that w as read to the jury.
The T.B.I. subsequently performed additional testing on the outer shirt of Glenn Wallace, Sr. This test revealed the “presence of particle s unique to gunshot primer re sidue.” T he T.B .I. agent who performed the test surmised that the primer residue had traveled with the bullet and had been deposited on the clothing upon im pact. The T.B.I. reported these test results on July 7, 1995, approximately two mo nths after A ppellant’s trial was co mplete d. The S tate provided Appella nt with a co py of the re port as so on as it rec eived it.
In its order denying A ppellant’s mo tion for a new trial, the trial court found that the State’s failure to provide Appellant with this third lab report before trial did not violate Brady. The trial court found that the State had not suppressed either Glenn Wa llace, Sr.’s sh irts or the results of tests performed on those shirts. The trial court als o foun d that, e ven as sum ing tha t the Sta te had supp resse d this
13
evidence, there had been no showing that the evidence wa s either exculpatory or materia l under the standa rds of Kyles. The trial court found that the evidence in the third lab report was not material because evidence that there was gunshot residue on the sh irt of Glenn Wa llace, Sr., was co mplete ly consiste nt with the lab report that had been read to the jury which indicated that there was gunshot residue on the hands of Glenn Wallace, Sr. Thus, the trial court found that there was no new evidence in the third lab report that supported Appellant’s claim of self defen se.
“The findings of fact and conclusions of law made by the trial court after an evidentiary hearing are afford ed the w eight of a ju ry verdict; this Court will not set aside the judgm ent of the trial court unless the evidence contained in the record preponderates against its findings.” State v. Dick, 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993) (citation omitted). Appella nt has faile d to identify anything in the record that preponderates against the trial cou rt’s findings. W e agree with the trial court that the absence of the evidence contained in the third lab report did not deprive Appellant of “a trial resulting in a verdict worthy of confiden ce.” Kyles, 514 U.S. at 434, 115 S. Ct. at 156 6. This iss ue has no me rit.
IV. PROSECUTORIAL MISCONDUCT
Appellant contends that the State engaged in prosecutorial misconduct by withholding the pre-trial statements of Joyce Davis and Tony Wallace, Jr., and the T.B.I. lab report of July 7, 1995. We disagree.
14
This Court has stated that in orde r to prev ail on a claim that prosecutorial misconduct denied the defendant of a fair trial, the defendant is required to show that the misconduct was so improper that it “affected the verdict to his detrime nt.” State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App . 1997) (citation om itted). “In reviewing an allegation of improper conduct, this Court should consider several factors inc luding the intent of the prosec utor, the curative measures which were un dertake n by the c ourt, the imprope r conduct viewe d in context and in light of the facts and circumstances of the case, the cumulative effect of the [improper conduct] with any other errors in the record, and the relative s trength or weakne ss of the case .” Id. (citation om itted).
In this case, Appellant has simply failed to meet his burden of showing that he was prejudiced by the alleged miscon duct. As previous ly discuss ed, the S tate disclosed the statements of Joyce Davis and Tony Wallace, Jr., to Appellant at trial and Appellant’s counsel vigorously cross-examined both witnesses about the statements. In addition, Appellant was not prejudice d by the fa ilure of the S tate to disclose the third T.B.I. lab report befo re trial because the report contained no exculpatory evidence that w as not already b efore the jury. This is sue is without merit.
V. FAILURE TO INSPECT THE STATE’S FILE
Appellant contends that the trial c ourt er red wh en it failed to perfor m an in camera inspection of the State’s file to determ ine whether it contained any undisclosed exculpatory material. Appellant also claims that the trial court erred when it failed to have the file sealed and preserved for appeal. We disagree.
15
The record indicates that on June 23, 1995, one month after completion of the trial, A ppella nt filed a motio n ask ing the court to order th e State to sub mit its file for inspection. Although the trial court apparently denied this motion, the record does not contain an order to that effe ct. App ellant th en cla imed in his amended motion for a ne w trial tha t the trial c ourt er red in d enying his inspection motion. Following a hearing on the motion for a new trial, the trial court issued an order w hich st ated th at in regard to Appellant’s request that the court inspect the State’s file, Appellant “was not entitled to such extraordinary relief and [he had] presented no authority for that relief.” Although the record contains a portion of the hearing on the motion for a new trial, it does not contain the portion that addre ssed this issu e. The refore , it is not pos sible for this C ourt to consider the argum ents of counsel, any evidence presented, or the reasoning of the trial cour t. “Absent the necessary relevant material in the record an appellate court cannot consider the me rits of an issue.” State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993) (citing Tenn. R . App. P. 24(b). A ppellant has failed to p roperly preserve this issu e for ap peal.
Howeve r, it appears that even if this issue had not been waived, Appellant would still not be en titled to relief. In State v. Caughron, 855 S.W.2d 526, 540–41 (Tenn. 1993), the Tennessee Supreme Court held that a trial court had not abused its discretion when it refused to conduct an in camera inspection of the State ’s file becau se the de fendan t had not asked the court to inspect any particular piece of evidence and there had been no proof that the State had committed any Brady violations. S imilarly, there is no proo f that the Sta te violated its Brady duties in this case. In addition, rather than asking the trial court to inspe ct a sp ecific piece of evidence, Appellant likewise asked the trial cour t to
16
search the en tire file for a ny exc ulpato ry evide nce th at mig ht be in it. Under these circumstances, the trial court did not abuse its discretion when it declined to inspect the State’s file and seal the file for appellate review. This issue has no merit.
VI. TESTIMONY ABOUT THE EFFECTS OF METHAMPHETAMINE USE
Appellant contends that the trial court erred when it allowed a witness for the State to testify about the effec ts of metham phetam ine on the hum an body. Howeve r, Appellant has failed to support this contention wit h any argument or any citation to authority. Thus, Appellant has waived this issue. Tenn. Ct. Crim. App. R . 10(b).
Notwithstanding Appellant’s waiver of this issue, we conclude that even on the merits, A ppellant is not e ntitled to relief. The record indicates that Doctor Charles Harlan testified on direct examination that Glenn Wallace, Sr., had 0.2 micrograms of methamphetamine per milliliter in his blood at the time of his dea th and that Glen n W allace, Jr., ha d 0.1 m icrogram s of me thamphetamine per milliliter in his blood at the time of his death. Dr. Harlan then testified that methamphetamine is som etime s use d to m ake a perso n mo re alert. Appellant did not object to an y of this testimony.
On cross-examination, Dr. Harlan stated that although he had never treated anyone who had taken methamphetamine, he had conducted research regarding metha mphe tamine ’s effects on the hum an bod y. Appellant’s counsel then went on to question Dr. Harlan about the physical and mental effects that
17
methamphetamine use could have on a person. When Dr. Harlan reiterated on re-direct examination that methamphetamine is sometimes used to make a person more a lert, Appellant’s counsel objected, claiming that Dr. Harlan was not qualified to make that statem ent.
W e conclude that even if the trial court erred when it allowed Dr. Harla n to testify about the effects of methamphetamine use, it was harmless error because Appellant was not prejudice d by it. See Tenn. R . App. P. 36(b). Inde ed, Dr. Harlan had already given identical testimony w ithout objection. Furthe r, Appe llant’s own e xpert w itness , Docto r Chris Blevin s, testifie d that p eople in certain profes sions take m etham pheta mine in orde r to rem ain ale rt. Thu s, this issue ha s no m erit.
VII. EXCLUSION OF EVIDENCE
Appellant contends that the trial court erred when it ruled that he could not introduce Glenn Wallace, Jr.’s boot and a gun that was allegedly found in that boot into evidence.4 Once again, h owev er, Ap pellan t has fa iled to s uppo rt this contention with any a rgume nt or any c itation to au thority. Thus, this issue is also waived. Tenn. Ct. Crim. App. R. 10(b). In addition, despite the tria l court’s statement that it wo uld allow Ap pellant to make on offer of proof, Appellant failed to include the gun and the boot in the record and also failed to make any offer of proof as to why they were relevant. Thus, this C ourt has no basis up on whic h to review the trial court’s decision that this evidence should not be admitted
4 This boot and gun were apparently found in the home of Glenn Wallace, Jr., some time after he was k illed.
18
because it was simply not relevant to any issue in the case. “Absent the necessa ry relevant m aterial in the re cord an appellate court cannot consider the merits of an issue.” Ballard, 855 S.W.2d at 561 (citing Tenn. R. App. P. 24(b). Appe llant ha s failed to prop erly pre serve this issu e for ap peal.
VIII. CONCLUSION
Because we hold that the evidence was insuffic ient to s uppo rt App ellant’s conviction for first degree murder, we modify his conviction to second degree murder and we remand this case to the trial court for resentencing. In all other respects, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
WILLIAM M. BARKER, SPECIAL JUDGE