State v. James Murray, Marcie Murray and Sharon Hurt

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1998 December 30, 1998

Cecil W. Crowson

STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9702-CR-00066 )

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. ANN LACY JOHNS

JAMES MURRAY, ) JUDGE MARCIE MURRAY and ) SHARON R. HURT )

Appe llant. ) (Direct Appeal - First Degree Murder ) and Co nspiracy to C omm it First ) Degree M urder)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. RODGERS, JR. JOHN KNOX WALKUP Suite 1230, First American Center Attorney General and Reporter 315 Deaderick Street Nashville, TN 37238-1230 DARIAN B. TAYLOR (Attorney for Jam es Murray) Assistant Attorney General 425 Fifth Avenu e North

CHARLES R. RAY Nashville, TN 37243-0493 211 T hird Aven ue No rth P. O. Box 198288 VICTOR S. JOHNSON Nashville, TN 37219-8288 District Attorney General (Attorney for Marc ie Murray)

TOM THURMAN

PETER J. STRIANSE ROGER MOORE 21st Floor, First American Center Assistant District Attorn eys Nashville, TN 37238 Washington Sq., Ste. 500 (Attorney for Sharo n Hurt) Nashville, TN 37201-1649

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On August 2, 1995, a Davidson County jury convicted Appellants Sharon Hurt, Marcie Mu rray, and James Murray of one count of first degree murder and one count of conspiracy to commit first degree murder. After a sentencing hearing on December 14, 1995, Sharon Hurt was given consecutive sentences of life imprisonment and twenty-four yea rs, Marcie Mu rray was given co nsecutive sentences of life imprisonment and twenty years, and James Murray was given consecu tive sentences of life imp risonm ent and twenty-two years. Ap pellants challenge both their convictions and their sentences, raising the following issues:

1) whether the trial court properly denied Appellants’ motions to sever the trial of each Appella nt;

2) whether the e vidence was sufficient to support Appellant James Murray’s convictions;

3) wheth er the tr ial cou rt prop erly ad mitted Appe llant Ja mes Murra y’s statements made to law enforcement officials;

4) wheth er the tr ial cou rt prop erly denied Appellant Marcie Murray’s motion for a mistrial after testimony about an investigation regarding her conduct at work;

5) whether the trial court properly admitted testimony about the seizure of Appellant James Murray’s automobile;

6) whether the trial cou rt prop erly admitted a shotgun shell into evidence as a demonstrative aid;

7) whether the Sta te imp roper ly withheld exculpatory evidence and used perjured testimon y from a c o-defen dant;

8) whether Appellants were entitled to a new trial bas ed up on ne wly discovered evidence;

9) whether the trial court pro perly den ied state fu nds for A ppellants to hire an expert in the field of pa thology/toxicology;

10) whether Appellant Sharon Hurt was entitled to a mistrial when a codefendan t testified that “they did stuff like this before”;

11) whether the trial court pro perly refus ed to allow Appella nts to impeach their co-defendant’s testimony with testimony from another witness;

12) whether the trial cour t erred wh en it failed to o rder the S tate to provide the criminal records of all of its witnesses to Appellants;

13) whether the trial court properly gave a missing witness instruction regarding an alibi witness;

14) whe ther the jury engag ed in m iscondu ct;

15) whethe r Appe llant James Murray was prejudiced by the court repor ter’s failure to record certain statements made during various bench conferences;

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16) whether the trial court properly imposed consecutive sentences on each Appellant; and 17) wh ether th ere wa s cum ulative e rror tha t require s rever sal.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTS

According to the e videnc e pres ented at trial, Don H urt ma rried his second wife, Appellant Sh aron Hurt, in Fe bruary, 1988. Early in the marriage, the coup le moved several times until Don Hurt built a house in Goodlettsville, Tennessee that was financed by his mothe r’s $25,000 mortgage on her home, which was never repaid. In March, 1990, the couple took out two insurance policies with Farm er’s New W orld Life Insurance, one for Don Hurt and one for S haron H urt. Don ’s policy was for $150,000 and Sharon’s policy was for $100,000. Beginning in June, 1990, the couple separated for a six month period, during which time Don H urt filed for ba nkruptc y.

Leonard Rowe testified that h e met S haron H urt in the su mm er of 1990, and the two soon began having an affair. Rowe provided Sharon Hurt with money, a con dom inium , and a job as his “pe rsona l secretary”. Sha ron H urt’s salary was paid in cash and was not recorded in the company books . Rowe also gave Sharon money to buy a pink C adillac. Wh en Ro we de cided to retur n to his wife in Decem ber 1990, S haron bec ame an gry and m oved ba ck in with Don H urt. The affair continued, however, and Sharon continued to work for Rowe’s Comp any.

Wanda Hudg ins tes tified tha t in January 1991, she had a conversation with Sharon Hurt about Don Hurt. Sharon stated that she was “sick” of her husband

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and “couldn’t stand him” because he was “smothering her.” On another occasion, Hudg ins wen t with Sha ron to meet with Rowe at his place of business. Sharon began to tell Rowe “how much trouble” Don was causing her. Rowe then took some letters out of a safe and Sharon told Hudgins that she was keeping these letters for “ammunition” for when she could divorce Don because she was “not leaving with nothing. I’m going to take him for everything.” Rowe then reached into his desk , pulled out a g un, an d said “I have som ething that will take care of Don Hu rt.” Rowe later attributed th is behavior to “acting macho” and “running off at the m outh.”

Rowe testified that as a resu lt of his affair with Sharon Hurt, he met some of her family, including her sister and brother-in-law, Appellants Marcie and James Murray. In February 1991, the Murrays told Rowe that Don Hurt had borrowed $15,000 from them, had not paid any of it back, and as a result, they were going to “k ill the son-of-a -bitch.” Rowe also testified that around this time, Sharon Hurt told him th at she ha d offered Jame s and M arcie Mu rray mo ney to shoot h er husb and.

Hudgins testified that Sharon Hurt called her in May 1991 and requested some information. Sharon knew that Hudgins’ first husband had bee n killed in an accident and she asked Hudgins how to determine the amou nt of life insurance she should have on Don. She also asked questions about how long it took to rece ive insurance proceeds after a person died and how to make a claim.

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On May 31, 199 1, Don an d Sharon Hurt applied for an increase on the value of their life insurance by $100,000 each, to bring the total to $250,000 for Don 1 and $200,000 for Sharon. Alvie Besch, the Hurt’s insurance agent, testified that although the inc rease was requested a t the end of Ma y, it did not go into effect immediately, but was held in abeyance until the underwriting cleared. Besch never actually informed Don and Sharon Hurt when the increase went into effect.

On Friday, June 8, 1991, Don Hurt made a request to a dispatcher for his employer, Malone & Hyde Trucking, to be assigned for a run the following Monday. The dispatcher, Richard Handley, testified that he complied and scheduled Don Hurt to make an early morning pick-up at a Nashville Dairy plant and truck the goods to a Memphis suburb. Handley testified that before making this run, Don would have had to go to the Malone & Hyde facility to get his cab. The Malone & Hyde truck term inal was lo cated o ff Interstate 65 at the Long Hollow Pike e xit in Good lettsville, Ten nesse e. A Shoney’s restaurant was also located at that exit. On Monday, June 10, 1991, at 11:28 p.m., a call was placed from a phone at this Shoney’s to the Murray residence in Pigeon Forge, Tennessee, and was billed to the Murray residence by use of a calling card. At 11:30 p.m., a call was placed from a different telephone at Shoney’s to Baptist Hospital in Knoxville w here M arcie Mu rray work ed. This call was a lso billed to the Murray residence by use of a calling card. James Murray later admitted to the police that he m ade the se teleph one ca lls.

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In addition, D on also h ad a life insu rance p olicy for $30,0 00 throu gh his em ployme nt.

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During the early morn ing hours of June 11, 19 91, D on Hu rt was d riving his truck near the Tennessee River when what he later described as a red or orange 1979–81 Firebird or Camaro type vehicle pulled alongside of his cab and som eone in the car fired a shotgun at him. The slug penetrated the side of the truck just behind the driver’s d oor, pas sed thro ugh the driver’s sea t, went through Don Hurt, ricocheted against the windshield, and landed on the floorboards near the passenger side of the vehicle. Don Hurt, who suffered guns hot wo unds to his left shoulder and neck, was transported to the Camden Emergency Room and from the re was ta ken to C olumb ia HCA Region al Hosp ital in Jacks on.

Police investigators arrived at the scene at approximately 4:30 a.m. and took photographs. They located the shotgun slug and wadding inside the cab and sent the slug to the Tenn essee Burea u of Inves tigation for a nalysis. A firearms specialist examined the slug and determined that it was a unique type of “sabot” shell which is typically fired from a 12-gauge shotgun. No arrests resulted fro m the p olice inves tigation.

Rowe testified that shortly a fter the sho oting, he h ad a co nversatio n with Sharon Hurt during which she said that “Marcie and Jimmy had messed the job up and she would have to take care of it herself.” Shortly afterwards, Rowe saw all three A ppella nts in h is office . At this tim e, Ma rcie an d Jam es Mu rray told him that they sh ot Do n Hur t with a 1 2-gau ge sh otgun while h e was driving on th e interstate. Marcie Murray also told Rowe that they were going to go to the hospital to inject a ir into the tubes that fed Don in traven ously. J ame s Mur ray told Rowe that if he told anyone about the incident, “we don’t mind taking your life and your whole da mn fam ily.”

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Don Hurt’s Mother, Eva Oden, testified that at one point when she was sitting in Don’s hospital room, Sharon Hurt and James and Marcie Murray entered the room and wa lked up c lose to D on with Sharon and M arcie a t Don ’s left arm and Ja mes a t his right. When Sharon saw that Oden was in the room, she stated “If I was the nurse in here, there wouldn’t nobody be here.” When Oden refused to leave the room, Sharon and the Murrays left the room without saying anything . Sharon Hurt told Rowe later that she and the Murrays had been unab le to do wh at they ha d plann ed to do at the hospital because she had gotten into a fight with the Hurt family and because there were television monitors in the hallway.

Rick Hurt testified that while he was visiting his father in the hospital the day after the shooting, Sharon Hurt stated that whoever shot Don “didn’t finish the job, but the y would be ba ck to fin ish it.” W hen R ick rep lied tha t “snipe rs don ’t come b ack,” Sharon responde d “well, they’ll be back.”

Don Hurt spent a total of seven days in the hospital and he was discharged on June 18, 1991. After Don was shot on June 11, 1991, insurance agent Besch dealt sole ly with Sha ron Hu rt regardin g the cou ple’s insur ance p olicies.

Rowe testified that some tim e in Septem ber or Octob er 1991, Sh aron Hurt and the Murrays came over to his residence in Nashville. At one point, the Murrays began laughing about how fast their Trans Am was and they stated that Marc ie had driven the car while James shot Don Hurt through the window. Row e’s son Jo ey testifie d that h e over heard Jam es Mu rray talk ing to M arcie Murray and Sharon Hurt and that James stated that he didn’t understand “how

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it didn’t kill him from a shot that short of a distance.” Joey Rowe also stated that the Murray’s had driven to his father’s residence in two vehicles, a Bronco and a red Fire bird or Tr ans Am .

Don Hurt’s daug hter Lis a testifie d that a round Tha nksg iving 19 91, D on told her that he had canceled his life insurance policy because he and Shar on co uld not afford to pay their bills. Oden also testified that Don told her that he had cance led his life insu rance p olicy.

Linda Gurley testified that she spoke to Sharon Hurt o n the te lepho ne in December 1991, and Sharon told her that she was “fed up” with Don. Sharon stated that she was “tired of him feeling sorry for himself” and “she was tired of having to take ca re of him , and she had ha d all she w as going to take with him.”

Jeane tta Russell testified that on December 19, 1991, Sharon Hurt told her that her husband was going to meet a man that night about a gun and that she was very conce rned tha t he migh t be killed.

Rowe testified that on the morning or early afternoon of December 19, 1991 , Shar on Hu rt teleph oned him a nd as ked to mee t with him at a restau rant. When Rowe arrived at the restaurant at 1:00 or 2:00 p.m., Sharon Hurt and James and Marcie Murray were ou tside in Sh aron’s ca r. Rowe walked up to the car and James Murray asked him ab out a .3 8 pisto l that Ro we ha d rece ntly purchased. Row e retriev ed the gun fro m his truck and James Murray asked if he could borrow the gun for a few days. Rowe agreed an d gave the gun to James Murray. Rowe also testified that Shar on Hu rt knew that he kept th is gun in his

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truck at all times. Rowe denied having any knowledge that the group was planning to kill Don H urt at this time .

Mickey Dalton testified that on December 19, 1991, at approximately 8:00 p.m., she wa s driving do wn W illiamson Road near the intersectio n of Old Sprin gfield Highw ay in Go odlettsville. Because few cars ever parked on the side of the busy roads in th at area, h er attention was dra wn to two cars that were parked on the side of the road. The car in the rear was an older gold colored car while the ca r in the fro nt was a new er “light p astel funny colored kind of pastel car,” that appeared to be a make and model similar to a Cadillac Seville. She noticed th at two pe ople we re sitting in the front of the n ewer loo king car.

The police discov ered D on Hu rt’s body sitting o n the p asse nger s ide of h is gold colored vehicle on Williamson Road at approximately 11:00 a.m. on December 20, 1991. An autopsy revealed that Don Hurt had sustained two gunshot wounds to the left side of his head, one at near contact and one at contac t. Each shot, although closely placed to each other, was fired from a different angle . Both o f the sh ots we re fatal and Don would have been immediately unconscious. The autopsy revealed that Don’s time of death was between 7:30 and 8:00 p.m. on December 19, 1991. Firearms sp ecialist Steve Scott testified that a bullet fragme nt retrieved from Don Hurt’s head and a fragme nt found lying on the floor of Do n’s car we re both .3 8 caliber b ullets.

Doctor Charles Harlan testified that an examination of Don Hurt’s blood revealed that he had c onsu med one to two m ixed dr inks w ithin on e hou r of his death. In addition, his blood contained quantities of the antidepressant Elavil and

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diphenhydramine, commonly known as Benadryl. Doctor Harlan testified that Benadryl can be used as a sedative as it has the side effect of making a person feel sleepy. Don’s b lood containe d an am ount of Ben adryl that was appro ximate ly twenty times greate r than th e norm ally acc epted therap eutic le vel. Benadryl is fast acting and will reach maximum effectiveness within on e hour. Doctor Harla n testifie d that th is high level of Benadryl mixed with alc ohol w ould have made Don drowsy. Benadryl could be obtained in cap sule form or in liquids either with fla vor or witho ut.

The only items of jewelry found on Don Hurt’s body were his wedding ring and a wrist watch. According to Don’s son Rick, Don always wore a horseshoe ring, a cluster ring, and a gold necklace in addition to his watch, but these items were ne ver found .

Insurance agent Besch testified that sometime during the early morning hours of December 21, 1991, he received a telephone call from a friend of Sharon Hurt who notified him that Don Hurt had been murdered. Besch testified that he could hear Sharon crying on the other end of the phone. Besch also stated that this wa s the o nly time th at he h ad eve r been awak ened in the m iddle of the nigh t to be notified that one o f his clients h ad died .

Rowe testified that when he learned of Don Hurt’s death, he called James Murray to ask him if he had his .38 pistol. James told him that he had disassembled it and strewn it along the interstate on the way back to Sevierville, Tennessee. James also stated that he and Marcie had thrown their blood soaked clothes o ff a bridge in to a river on their way h ome.

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Judy Tank ersley testified that she accompanied Eva Oden and Sharon Hurt to the funeral home in order to make plans for Don’s wake and funeral service. Tankersley testified that when the mortician asked Sharon how she would pay for the funeral, she took out some papers and said “I can pay fo r it because one of these is for tw o-hundred-thousand dollars. When Oden said “that is not true. Don canceled that insurance policy,” Sharon responded, “[N]o, he thought he did. I had some friends that helped me ke ep it paid.” Oden confirmed that this conversation took place. Tankersley and Oden both testified that Sharon said that she w as a “rich widow now.”

Rowe testified tha t at som e poin t after the funera l, Shar on Hu rt told him that “She wouldn’t have went along with them to murder [Don] if she had known they were going to beat him up like that.” Sharon later told him that she was angry with the Murrays because they had taken Don’s gold and diamonds and that she was going to deduct that from the amount of money that she owed them.

Linda Gurley testified that shortly after Don Hurt’s murder, she had a conversation with Sharon Hurt during which Sharon discussed the investigation of Don’s death and s tated th at she was “a t the po int she was w illing to buy someone.” When Gurley told Sharon that she had been out of town when Don was killed, Sha ron said “O h that’s right. I forgot.” A few months later, Sharon asked Gurley to testify that Don and Rowe had settled their differences and were friends. Gurley told her that she could not agree because it was not true.

Rowe testified that in July 1992, he asked James Murray to tell him precis ely what happened the night th at Do n Hur t was m urder ed. Ja mes told him

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that they had put “mickeys” in Don’s drinks and then the three of them walked him through the front door and out to the car. James and Marcie then each shot Don in the head. They then took jewelry from the body and James later melted it down at a place where he worked. At this time Marcie stated that “we still want you to know if anything is e ver said a bout this . . . we don’t min d taking yo ur life and your wh ole damn family.”

On March 5, 1993 , Cap tain Ra ndy P arton o f the Se vier Co unty S heriff’s Departm ent impou nded a red 1982 Firebird th at belonged to James Murray.

Rowe and Shar on Hu rt were arreste d in Nashville on September 13, 1993.

Row e initially lied to the police regarding his relationship with Sharon Hurt and his know ledge of the p lan to m urder Don H urt. Ho weve r, Row e even tually decided to come forward a nd provid e inform ation to the authorities in exchange for having his bond lowered. In addition, he was granted use immunity for anything that he told the authorities. Rowe was also promised “consideration” at the time he entered his plea and he acknowledged that the only reason why he was testifying was to get as much “consideration” as possible. Both Rowe and his attorney testified that no other promises had been made in exchange for his testimon y.

James and Marcie Murray were arrested in Franklin, Kentucky on August 28, 1994. Detective Ed Moran testified that after James Murray was placed in the police car for transport, he told Moran “I knew that it was over when I saw the two [Kentucky State Police] cars parked down the street, and I’m glad its o ver with.” After Moran read th e indic tmen t to Jam es an d advis ed him of his constitutional

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rights, Jame s stated that he “knew some information in this case,” and that he “wanted to make a deal.” Moran told him that he was not authorized to make a deal and that James would have to speak with the district attorney general. When Moran later return ed to transport James to Tennessee, James stated that he had some information and he wanted to make a deal. When Moran reminded him that he was not in a position to negotiate a deal, James lowered his head and stated, “W ell, what kind of deal ca n I get when I’m going to plead guilty.”

II. DENIAL OF SEVERANCE

All three Appellants contend that their trials should have been severed so that they could have been tried separately. Each Appellant gives various reasons for their positions, but they all basically contend that evidence presented against the other Appe llants “spilled-over” onto them and unfairly preju diced the ir ability to present their individual defenses. Rules 14(c)(2)(i) and (ii) of the Tennessee Rules of Crim inal Pro cedu re prov ide tha t the trial c ourt sh all grant a severance of defendants if deemed appropriate to promote or achieve a fair determination of a defen dant’s gu ilt or innocen ce. “W hether to grant a severa nce is w ithin the trial judge’s soun d discretion.” State v. Ensley, 956 S.W.2d 502, 508 (Tenn. Crim. App. 1996). “The exercise of that discretion will not be reversed absent an affirmative showing of p rejudice.” Id. “In other words, the record must demonstrate that the defendant was clearly prejudiced to the point that the trial court’s discretion ended and the granting of [a] severance became a judicial duty.” Parha m v. State , 885 S.W.2d 375, 383 (Tenn. Crim. App. 1994) (citation omitted). “The trial c ourt, how ever, mu st not only p rotect the rig hts of the accused, it must also protect the rights of the state prosecution, and ‘when

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several persons are charged jointly with a single crime . . . the sta te is entitled to have the fact of guilt dete rmine d and punis hme nt ass esse d in a sin gle trial, unless to do so wou ld unfairly prejudice the rights of the defenda nts.’” State v. Wiseman, 643 S.W .2d 354 , 362 (T enn. C rim. App . 1982) (c itation om itted).

A. Witness Testimony

Appellants’ make numerous allegations of prejudicial errors that they believe warra nted s evera nce o f their trials both before the trial began and during the trial itself. Many of these alle gations re late to the a dmiss ion of state ments from witnesses about one Appellant that “spilled-over” to the complaining Appe llant. For instance, James and Marcie Murray conte nd tha t Don Hurt’s mother, Eva Oden, should not have been allowed to testify that she had an altercation with Sharon Hurt at the hospital shortly after Don was s hot in June 1991:

Q: And did you later have an altercation with Sharon Hurt over you being at the h ospita l?

A: Yes, sir.

Q: Okay. We don’t need to get specific there, but was there an altercation about th at?

A: Well, she had been gone several days, and I was still there. She came in with like a little overnight grip.

Q: Okay. W e don’t need to get specific and--

A: And she was standing at the little table. She took this chair and picked this chair--

Q: Ma’am, please, ju st listen to m y question , okay. W e don’t ne ed to get real specific. W ould you ack nowledge there was an altercation without--

A: Yes, there w ere--

Q: --getting into all the details?

A: Yes, there were.

Q: Okay. And as a result of that, did you leave at that time?

A: Yes, I did.

The State contends that James and Marcie Murray were not prejudiced by th is testimony because it would have been admitted even if they had been tried

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separately. We agree. In State v. Little, 854 S.W .2d 643 (Tenn . Crim. A pp. 1992), this Court stated that “a severance need not be granted where the evidence which was introduced could have been admitted against [the defen dant] in a separate trial.” Id. at 648. Oden’s testimony would have been admitted even if the Appellants had been tried separately in order to establish the conspiracy offense. Indeed, there was evidence that the three Appellants went to the hospital to kill Don Hurt by injecting bubbles into his intravenous tubes. Proof of the altercation helped to explain why the y left befo re acc omp lishing their go al. Thus, the M urrays have no t shown that the y were prejudice d by this testimon y.

James and Marcie Murray also contend that they were prejudiced by Ode n’s testimony, elicited on cross-examination by counsel for Sharo n Hurt, that Oden also made a claim on Don Hurt’s insurance policies because she “had a bad feeling that [Sharon] might have been the person that killed [he r] son.” T his statement was, of course, directed at Sharon Hurt and it did no thing to discre dit the Murra y’s alibi defense. Furthe r, the trial court noted that it was re sponsive to coun sel’s question about whether Oden had made a claim on the policies. The court also stated that its instructions at the end of trial would address the need to keep e vidence separa te as to ea ch App ellant. 2 Because we presume that the jury followed its instructions, we hold that the Murrays have not shown that they were prejudiced by this statem ent. See State v. Lu nati, 665 S.W.2d 739, 746 (Tenn. Crim. App . 1983) (“The trial judge instructed the jury that they wer e to

2 The ins truction rea d as follow s:

You should give separate consideration to each defendant. Each is entitled to have his or her case decided on the evidence and the law which is applicable to that particular defendant. Any evidence which was limited to a particular defendant should not be considered by you as to any other defendant. You can acquit all or convict all, or you can acquit one or more and convict the other or others. If you cannot agree upon a verdict as to all the defendants, but do agree upon a verdict as to one or more of them, you must render a verdict as to the one or more upon which you agree .

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consider the charges against each defendant individually. It is presumed that the jury followed his instruc tions.”).

James a nd Marcie M urray also ma ke a gene ral contention that the y should have been granted a severance when Tankersley testified that she heard Sharon Hurt say that she was a “rich widow now.” Again, this bare contention is not sufficient to establish prejudice becau se we p resum e that the jury followed the trial court’s instruc tion to c onsid er only the evid ence applic able to each Appella nt. See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994) (“In most circumstan ces, we pres ume that a jury follows limiting instructions.”).

James and Marcie Murray contend that they should have been granted a severance when E arl Robe rts, the Hu rt family attorn ey, testified ab out his representation of the H urt fam ily in a civil suit against Sha ron Hurt. The Murrays contend that Roberts' testimony, that Sharon stated in her deposition that she had never be en rom antically invo lved with Rowe, violated the hearsa y rules. W e disagree. This statement was obviously not offered for the truth of the matter asserted, it was offered to show that Sharon lied in an attempt to cover up her participation in her husband’s murder. Even if this statement could be characterized as hearsay, it was properly admitted as a statement by a co- conspirator in furthe rance of the c onsp iracy. 3 See Tenn . R. Evid. 80 3(1.2)(E ).

3 The conspiracy did not end at Don Hurt’s death, as Appellants had not yet obtained the insurance procee ds. See State v. Hutchison, 898 S.W.2d 161, 170 (Tenn. Crim. App. 1994) (“[A] conspiracy continues until the conspirators’ ultimate goal of collecting the proceeds of the crime has been achieved or abandoned.”). In order to obtain the proceeds, Ms. Hurt obviously had to conceal her involvement in her husband’s m urder.

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Marcie Murray also contend s that Robe rts should not ha ve been allowed to testify that “we filed a lawsuit back in January of 1992, to prevent Sha ron Hurt from receiving insurance proceeds. There is a State statute that says, in so many words, that the person cannot profit from their own crime, and--.” The trial court ruled that this statement was admissible because Roberts was mere ly giving a resp onsive answ er by sta ting the legal b asis upon which he filed the lawsuit. Ms. Murray provides no authority to support her claim that ad mitting this statement was error and we hold that, at most, any error in admitting this brief statement was ha rmless becau se we c annot s ay that the admis sion of this statement “more prob ably than not affected the judg ment.” See Tenn. R. App. P. 36(b).

Marc ie Murray also contends that the testimony of two court clerks, R obert Bradshaw and S usan Murillo, about Sharon Hurt’s prior civil trial testimony violated the hearsay rules. We disagree. First, Sharon Hurt’s statements and admissions made in the civil trial were made in an attempt to cover up her participation in the conspiracy to kill Don Hurt in order to obtain insurance proceeds. Thus, th e statements fall under the statements of a co-conspirator exceptio n to the he arsay rule . See Tenn . R. Evid. 80 3(1.2)(E ).

Marc ie Murray contends that she should have been granted a severance because Gurley gave testimon y abou t Shar on Hu rt that ha d a pre judicia l spill- over effect on h er. How ever, Ms . Murray has failed to specify which parts of Gurley’s testim ony we re preju dicial or to expla in why th ey wer e preju dicial. Presum ably, she objects to Gurley’s testimony that Sharon H urt told her that the investigation had pu t her “at the p oint [that] she was willing to buy so meon e.”

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Howeve r, this testimony would have been admissible even if Ms. Murray had been tried separately because it was a statem ent by a co-co nspira tor in furtherance of the con spiracy to o btain the in suranc e proce eds. See Tenn. R. Evid. 803(1.2)(E ).

Sharon Hurt contends that she should have been granted a severance when the trial court admitted taped telephone conversations between Rowe, the Murrays, and D etective M oran. M s. Hurt does not specify which of these statem ents she objects to or exactly how these statemen ts prejudiced he r. Howeve r, these statements by the Murrays w ere basically attempts to establish an alibi for th e time that D on Hu rt was s hot an d ultim ately killed. As such, the statem ents were properly admitted as to the Murrays as admissions of a party. See Tenn. R. Evid. 803(1.2)(A). Because we presume that the jury followed the trial court’s limiting instruction, we hold that Ms. Hurt has not shown that she was prejudiced by the introduction of these statements.

Marc ie Murray contends that she should have been granted a severance because she was prejudiced by the fact that mem bers of Don Hurt’s family began to cry and display emotion in the presence of the jury. Howe ver, the record revea ls that trial coun sel for M s. Mur ray no ted tha t only on e pers on, D on’s daughter Lisa Baker, beg an to cry at a certain p oint. Apparen tly, Baker’s actions were quiet enough that neither the trial court nor the prosecutor were aware that she had been crying. In any case, the record reveals that the trial court asked the court officer to discreetly take Baker out of the courtroom so that the jury would not notice her. Ms. Murray’s brief is unclear about why this occurrence required a severan ce. Bak er may well have cried at a s eparate trial. Regardless

19

of what migh t have happened at a separate trial, Ms. Murray has failed to meet her burden of showing how she was prejudiced by this appa rently brief inc ident.

Marc ie Murra y conte nds th at she shou ld have been granted a severance because the trial court did not give limiting instructions after the testimony of each witness, but rather, gave a limiting instruction at the end of trial. As authority for this proposition, she cites State v. Little, 854 S.W .2d 643 (Te nn. Crim. App. 1992). Howe ver, Little does not contain any requirement that limiting instructions must always be given contem porane ously. Rather, it stands for the proposition that the jury should be adequately instructed to consider evidence separately as to each d efenda nt. Althou gh it may gen erally be a better prac tice to give contemporaneous limiting instructions, Ms. Murray has cited no Tennessee authority, and we are unaware of any, which req uires this to be don e in every single case. Because the trial court gave an appropriate limiting instruction at the end of trial, we find no reversible error in the failure to give contemporaneous instructions.

B. Statement of James Murray

Sharon Hurt and Marcie Murray both contend that they should have been granted severance when the trial court allowed the introduction of James Murra y’s post-arrest attempts to make a deal with Dete ctive M oran a nd his statement that he was going to plead guilty. Specifically, they claim that these statem ents were tan tamou nt to him a ctually pleading guilty which prejudiced them in the eyes of the jury. T hey cite the cases o f State v. Armes, 673 S.W.2d 174 (Tenn. Crim. App. 1984) and Bruton v. United States, 391 U.S. 123, 88 S. C t.

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1620, 20 L. Ed. 2d 476 (1968), in support of their claim. Howeve r, neither Armes nor Burton is applicable to this case. In Armes, this Cou rt held that it w as revers ible error when a co-d efend ant ch ange d his plea to guilty in the middle of the trial and the trial court took the plea in front of the jury. 673 S.W.2d at 178. In this case, howe ver, James Murray did no t plead guilty and the trial cou rt certain ly did not ques tion him abou t this statem ent in fro nt of the jury. Th us, this case is distinguishable from Armes. This case is also distinguishable from Bruton. In Bruton, the United States Supreme Court held that an inculpatory confession of a non- testifying co -defen dant c anno t be ad mitted in a joint tr ial. 391 U.S. at 12 6, 88 S. Ct. at 1622. Howe ver, Bruton does n ot apply to statem ents that do not implicate the non-confes sing co-d efenda nt. State v. Person, 781 S.W .2d 868, 872 (Tenn. Crim. App. 1989); Dorse y v. State, 568 S.W.2d 639, 642 (Te nn. Crim. Ap p. 1978). In this case , James M urray’s statem ents were simply his own admissions that did not even mention, much less implicate, the other Appellants. Thus, Bruton is inapplicable to this case and the trial court did not abuse its discretion in denying Sharon Hurt’s and Marcie Murray’s motions for severance on this ground.4

C. Potential Testimo ny of Sharon Hu rt

Marc ie Murray contends that she should have been granted a severance so that sh e cou ld have had the benefit of what she characterizes as Sharon

4 Ms. M urray’s claim that she w as entitled to a limiting instru ction that M r. Murra y’s statem ents were not to be co nsid ered for th e truth of the ma tter as serte d is wit hou t me rit. As an ad mis sion of a p arty, these s tatem ents we re not he arsay, but w ere introdu ced as evidenc e of Jam es Mu rray’s guilt. See Tenn. R. Evid. 803(1.2)(A).

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Hurt’s exculpatory testimony. In her pre-trial motion to sever, Ms. Murray subm itted the follow ing affidavit from Sharo n Hurt:

Based upon the ad vice of c ouns el and an ind epen dent d ecision made by me, I have chosen not to take the stand as a witness, but instead, I will be exercising m y rights under the Fifth Amendment to the United States Constitution not to testify in my own be half. Should I have chosen to testify, my testimony as concerns two (2) telephone calls made from Shon ey’s Restaurant on Long Hollow Pike in Goodlettsville, Tennessee on the night of June 10, 1991 would be as follows:

My husband, Don H urt, and I stopp ed off a t Shon ey’s Restau rant to have coffee and he had become aware that he was going to make a special run for Malone & Hyde, his employer, wherein he would be leaving the terminal around 12:00 AM on June 11, 1991. We had together made plans to visit my s ister, M arcie Murray, and h er husban d, James Murray, in Sevie rville, Tennessee on th e 11th d ay of Jun e, 1991 , so I need ed to advise them that we would not be making the trip to Sevierville because my husband had to make a special run to Memphis for his employer. At appro ximate ly 11:28 PM and 11:30 PM, we made calls from Shoney’s Restaurant on separa te telephones to my sister, Marc ie Mur ray, in Sevie rville and to Baptis t Hosp ital in Kn oxville w here I th ough t she w ould be working. Don H urt called th e Sevierv ille residenc e and s poke to someone for approximately three (3) minute s. I called Baptist Hospital and was advised that my sister, M arcie Murray, was not working that night, and ended the conversation. To my knowledge, neither Marcie Murray nor Jame s Murra y were in th e Nash ville area on June 1 0 or 11, 1 991.

Marc ie Murray contends that in submitting this affidavit, she satisfied the following four part test for determining whether to grant severance based on calling a co-defendant as a witness:

The defendant must demonstrate: (1) a bona fide need for the testimony, (2) the substance of the testimony, (3) its exculpatory nature and e ffect, and (4) that the codefendant will in fact testify if the cases are severed.

United States v. Butler, 611 F.2d 1066, 1071 (5th Cir. 1980). This test has also been adopte d by the U nited Sta tes Cou rt of Appe als for the S ixth Circuit. See United States v. Causey, 834 F .2d 12 77, 12 87 (6th Cir. 19 87). Althoug h this test has never form erly been adopte d by the courts of Ten nessee, ou r courts have applied a similar test: the de fenda nt mu st pres ent the co-de fenda nt’s proposed testimony, demo nstrate that it is exculpatory, and show that the co -defen dant w ill

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testify at trial if the ca ses are severed . See State v. Ash, 729 S.W.2d 275, 279 (Tenn. Crim. A pp. 198 7); State v. Holliday, No. 28, 1987 W L 9448, at *3 (Tenn. Crim. App., Jackson, June 29, 1987); State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). In this case , Ms. M urray h as pre sente d Ms. H urt’s proposed testimony. However, neither her brief nor her pre-trial motion contains any argument explaining why this statement is exculpatory. Indeed, even if Sharon and Don Hurt were the ones who made these telephone calls, the Murrays could still have followed D on on h is westerly ro ute in order to shoot him. Further, this statement has absolutely nothing to do with the actual murder of Don Hurt six months later in December 1991. Regardless of whether the statement is the least bit exculpatory, neither the affidavit nor anything else in the record indicates that Ms. Hurt would have waived her Fifth Amendment privilege against self-incrimination and actually testified if the case we re severed. Therefore, the trial court did not abuse its discretion in refusing to grant the motion.

D. Trial Tactics of Sharon Hurt

Marc ie Murra y conte nds th at she shou ld have been granted a severance because counsel for Sharon Hurt advanced a defense theory that Sharon did not com mit the crimes for money because she never made a claim for the insurance proceeds. Ms. Murray contends that she should have been granted a severance because this theory was “completely destroyed” by the testimony of the Hurts’ insurance agent, Alvie Besch. However, she cites no rele vant auth ority to support her proposition that this wa s a ba sis for s evera nce. F urther , she fa ils to indicate which p art of the record conta ins the objec tionab le tactic s of Sh aron’s coun sel. It does not appear that Sharon Hurt’s defense theory was centered on

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whether she made a claim for the insurance proceeds. Rather, it appears that her counsel merely pointed out by cross-examination questions that Don Hurt’s family did not know for a fact whether Sharo n had m ade an insuranc e claim. This line of questioning appears to have been part of an attempt to show that Don Hurt’s family wanted the money for themselves. These questions may not ha ve been the m ost pru dent in light of th e fact th at Bes ch late r testified that Sh aron d id put in an insurance claim, howeve r, the mere fact that counsel for a co-defendant asked a few questions on cross-examination that were later rebutted by the State’s evidence is insufficient to show prejudice justifying severance.

E. Missing Witness Instruction

Marc ie Murray contends that she was entitled to a severance based on the trial court’s decision to give a missing witness instruction regarding Pam Woolums. 5 She claims that severance was the proper remedy because Woolums was listed as an alibi witness by James Murray and the missing witness instruction was thereby directed at him. She argues that she should not be penalized for relying on James Murray’s assurances that Woolums would be present at the trial, which cause d her no t to subpo ena W oolum s for herse lf. Howeve r, Ms. Murray fails to support this argument, which is apparently an attempt to appeal to overall notions of fairness, with any legal authority. Moreover, the record does not support her contention that only James listed Woolums as a w itness . The r ecord does not co ntain the defense alibi notices, and therefore, there is no documentation regarding which witnesses were listed

5 Ms. Murray does not contend that the trial court erred in giving this instruction and for the reasons stated in P art XIV, infra, we hold that it was not error to give this instruction.

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by which A ppellant. F urther, the prosecutor’s statements at the end of the hearing on this jury instruction suggest that both James and Marcie Murray may have listed W oolum s as a witn ess. In fact, Marcie Murray is the one who testified that she and James were eating dinner with Woolums in Gatlinburg, Tennessee when Don Hurt was murdered. Ms. Murray’s trial counsel acknowledged to the court that he simply relied on the assurances of counsel for James that Woolums would be available to testify and that he would have s ubpo enae d her h imse lf if he had known th at she had n ot bee n prop erly sub poen aed. M s. Mur ray’s reliance upon the ac tions and repre sentations of co unsel for Mr. Murra y is clearly her own fa ult, and she m ay not n ow cla im that she was entitled to severance for a problem that she could have avoided herself. See Tenn. R. App. P. 36(a) (“Noth ing in this rule shall be construed as requ iring relief be g ranted to a party respo nsible for an error or wh o failed to take whate ver act ion wa s reas onab ly available to preven t or nullify the harmful effect of an error.”).

F. Disparity of Evidence

Marc ie Murra y conte nds th at she shou ld have been granted a severance because she was prejudiced by the fact that the evidence against her was slight in comparison to the evidence against Sharon Hurt. In support of this broad argum ent, she cites to Zafiro v. United States, 506 U.S . 534, 113 S. Ct. 933, 122 L. Ed. 2d 3 17 (199 3). In Zafiro, the United States Supreme Court stated that “[w]hen many de fendants are tried together in a complex c ase and the y have marked ly different degrees o f culpability, th[e] risk of prejudice [from joint trials] is heighten ed.” Id. 506 U.S. at 539, 113 S. Ct. At 938. However, this Court has stated that where the charges against the defen dants are neither numerous nor

25

complex and the evidence shows that the defendant played a central role in the commission of the offense, we will not find a trial court’s denial of severance to be prejudicial. See State v. Steve Ketron, No. 955 , 1991 W L 8336 3, at *2–3 (Tenn. Crim. App., Knoxville, May 22, 1991); State v. Melvin Alexander, No. 88- 290-III, 1990 WL 26769, at *4–5 (Ten n. Crim. App ., Nashville, March 1 5, 1990). Such is the case here. Th is case inv olved on ly three de fendan ts and a sequence of events that was fairly easy to follow. Further, the evidence revealed that Ms. Murray played a central role in the commission of the offenses at issue here. As this Court has st ated, “a dispa rity of incr imina ting evid ence is not itself sufficient to establish prejudice” for severance purposes. Ketron, 1991 WL 83363 at *2; Alexander, 1990 W L 2676 9 at *4. Th us, this issu e has n o merit.

III. SUFFICIENCY OF THE EVIDENCE

Appellant James M urray contends that the e vidence was insu fficient to support his convictions for first degree murder and conspiracy to commit first degree murder. 6 Specifically, Mr. Murray contends that: a) the first degree murder conviction is invalid because there was no proof of deliberation, b) that both convictions were based on uncorroborated accomplice testimony, and c) that the circumstantial evidence presented was too tenuous to exclude all reason able theo ries besid es that of g uilt.

When an a ppellant challenges the sufficiency of the evidence , this Court is obliged to review that challenge accord ing to certa in well-settled principles . A verdict of guilty by the jury, approved by the trial judge, accredits the testimony

6 Appellants Sharon Hurt and Marcie Murray do not challenge the sufficiency of the evidence.

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of the State's witnesses and re solves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W .2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence , a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appea l, the burden of proof rests with Appellant to demonstrate the insufficiency of the con victing evide nce. Id. On ap peal, “the [S ]tate is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)) . Wh ere the sufficie ncy of th e evide nce is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reaso nable d oubt. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 5 60 (197 9). In conducting our evaluation of the convicting evidence, this Co urt is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not subs titute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” Id. at 779 . Finally, R ule 13(e) of the Tennessee Rules of Appe llate Pro cedu re prov ides, “fin dings 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 by the trier of fact beyond a reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.

A. Deliberation

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James Murray c laims tha t the eviden ce is insuffic ient to support his first degree murde r conviction becau se there was no proof of de liberation. We disagree. Wh en Don H urt was mu rdered in 199 1, Tenne ssee’s first degre e 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 (1991). 7 Delibera tion requ ires that the offense b e com mitted w ith cool purpose, free of the passions of the mom ent. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). In addition, deliberation is a determination for the jury which may be inferred fro m the m anner a nd circum stance s of the killing. State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Facts show ing the defen dant’s planning activity, motive, and nature of the killing can all provide evidence from which deliberatio n can b e inferred . See State v. Gentry, 881 S.W.2d 1, 4–5 (Tenn. Crim. A pp. 1993). Le onard Row e testifie d that S haron Hurt to ld him in February 1991 that she had offered to pay James and Marcie Murray for killing her husband and that the Murrays told him that Don owed them money and they were going to “kill the son-of-a-bitch.” Rowe also testified that on the day of the murder, James Murray had borrowed his gun and had s ubse quen tly stated that he had used the gun to kill Don Hurt after putting “mickeys” in his drinks and placing him in his car. Further, the State presented evidence that James Murray murdered Don Hurt after he ha d alrea dy attem pted to kill him a pprox imate ly six months earlier by shooting him with a shotgun. The ju ry could reasonably infer from this evid ence that Ja mes Murra y had a motive to kill Don Hu rt, that he planned the murder, and that he committed the murder by carrying out his plan.

7 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.”).

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Thus, there was sufficient proof of deliberation for the jury to conclude that James Murray was guilty of first degree mu rder.

B. Corroborating Evidence

James Murray contends that his convictions for first degree murder and conspiracy to com mit first degree murder are invalid because they are based solely on the uncorroborated testimony of an accomplice.8 We disagree. The appellate courts have addressed the nature, quality, and sufficiency of the evidence required to corroborate the testimony of an accomplice on numerous occasions. In State v. Griffis, 964 S .W .2d 57 7 (Te nn. C rim. A pp. 19 97), this Court stated:

The rule of corroboration as applied and used in this State is that there must be some evidence independent of the testimony of the accomplice. The corroborating evidence must connect, or tend to connect the defendant with the commission of the crime charged; and, furthermore, the tendency of the corroborative evidence to connect the defendant must be independe nt of any testimon y of the accom plice. The corro borative evidence must of its own force, independently of the accomplice’s testimony, tend to co nnect the defend ant with the commission of the crime.

....

The evidence co rroborating the testimony of an accomplice may consist of direct evid ence, c ircums tantial evidence, or a combination of direct and circumstantial evidence. Th e quantum of evidence ne cessary to corroborate an accomplice’s testimony is not required to be sufficient enough to support the accused’s conviction independent of the acco mplic e’s testimony nor is it required to extend to every portion of the accom plice’s testimony. To the contrary, only slight circumstances are required to corroborate an accomplice’s testimony. The corroborating evidence is sufficient if it connects the accused with the crime in question.

Id. at 588–89 (citations omitted). “W hether a witnes s’ testimony has been sufficie ntly corroborated is a matter entrusted to the jury as trier of fact.” State

8 The trial court found as a matter of law that Leonard Rowe was the Appellants’ accomplice. That conclusion has not been challenged.

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v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992) (citing Stanley v. S tate, 189 Ten n. 110, 222 S .W.2d 384 (1949 )).

The eviden ce in th is case clearly e stablished a t least the “slight circumstances” required to corroborate Rowe’s accomplice testimony. As for the first degree murder conviction, some corroborating evidence came from James Murray himself. Indeed, we he was a rreste d, he s tated th at he w as “gla d it’s over with” and that he “wanted to mak e a dea l.” He subsequently stated, “Well, what kind of dea l can I ge t when I’m go ing to p lead g uilty.” Rowe’s statement that James Murray told him that he ha d put “m ickeys ” in Don Hurt’s drink before killing him was corroborated by Doctor Harlan who testified that when Don was killed, he had a high level of Benadryl in his blood that would have made h im drowsy. Row e’s statement that James Murray told him that he and Marcie both shot Don in the head with R owe’s gun wa s corrob orated b y testimo ny that the two bullets that penetrated Don’s brain were fired from a .38 caliber pistol and were fired from differ ent ang les.

The evidence listed ab ove also corrobora tes Rowe ’s testimony in rega rd to the conspiracy conviction. In addition, other evidence was introduced that corrobo rates Ro we’s testim ony. Row e’s sta teme nt that J ame s Mur ray told him that he shot Don Hurt with a 12-gauge shotgun in June 1991, was corroborated by several facts. First, Don told the police that he had b een s hot by s ome one in a red Cam aro or Firebird an d in fact, the Murrays o wned a red Firebird. Further, Joey Row e testifie d that in Fall 1991, he heard Jam es Mu rray sta te that h e did not understand “How it didn’t kill him fro m a sh ot that sho rt of distanc e.” In addition, James told Detective Moran in a taped telephone conversation that he

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made the phone calls from the restaurant near Malone & Hyde Trucking on May 10, 1991, just hours before Don Hurt was shot. Finally, a firearms specialist examined the slu g from Don’s truck a nd de termin ed tha t it was a unique type of shell whic h is typically fired from a 1 2-gaug e shotg un.

In short, there was sufficient evidence before the jury as the trier of fact to determine that Rowe’s testimony was sufficiently corroborated.9

C. Circumstantial Evidence

James Murray contends that his convictions should be reversed because they were based entirely on circums tantial evide nce. However, the Tennessee Supreme Court has stated that the State may prove a criminal offense by circumstantial evidenc e alone . State v. Mann, 959 S.W.2d 503, 518 (Tenn. 1997) (citing State v. Tharpe, 726 S.W.2d 896, 89 9–900 (Tenn . 1987)). This includes the offense o f first degree murde r. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). “Before a jury may convict a defendant of a criminal offense based upon circumstantial evidence alone, the facts and circumstances ‘must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defend ant, and that beyo nd a reaso nable doub t.’” Mann, 959 S.W .2d at 518 (quoting State v. Crawford, 225 Ten n. 478, 470 S .W.2d 610, 612 (19 71)). “As in the case of direct evidence, the weight to be given circumstantial evidence and ‘[t]he inferences to be drawn from such evidence, and the extent to which the

9 James Murray’s argument that Rowe’s testimony that Rowe gave him the .38 caliber pistol he used to kill Don Hurt must be specifically corroborated is without merit. This Court has previously stated that “[i]t is not necessary that the corroboration extend to every part of the accom plice’s evidence.” State v. Gaylor, 862 S.W .2d 546, 552 (Tenn. Crim . App. 1992).

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circumstances are con sistent with guilt and inc onsisten t with innoc ence, are questions primarily for the jury.’” Id. (quoting Marab le v. State, 203 Tenn . 440, 313 S.W .2d 451, 457 (1958)).

In this case, it is obvious that the jury believed the testimon y of Leonard Rowe. As previously stated, Rowe’s testimony established that Sharon Hurt had offered to pay the Murrays for killing Don Hurt; that James Murray shot D on Hurt during the failed murder attempt of June 11, 1991; that James Murray borrowed Row e’s gun on December 19, 1991; that James Murray participated in drugging Don Hurt and placing him in the gold car; and that James Murray shot and killed Don Hurt with Rowe’s gun on December 19, 1991. In addition, other evidence established that James Murray had been near Don Hurt’s place of business just hours before he was shot on June 11, 1991; that James Murray owned a car that matched the description of the car used in the failed murder attempt; and that James Murray told the police that he was guilty of the crimes in this case. From this evidence, we find that the jury acted within its prerogative in determining that all other rea sonab le hypoth eses, sa ve the gu ilt of the accused, had been exclude d beyon d a reas onable doubt. T his issue has no merit.

IV. STATEM ENTS OF JAM ES M URR AY

Appellant Jame s Murra y conten ds that the trial court erre d when it admitte d his post-a rrest sta teme nts into eviden ce. Sp ecifica lly, he cla ims that this was error because a) the police failed to cease questioning him after giving Miranda warnings, b) the police continued to que stion him after he invo ked his rig ht to

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coun sel, and c) the statem ents were inad missible offers to enter into plea negotiations.

A. Miranda

Initially, James Murray argues that the statements h e made to Detective Moran should have been suppressed because Moran continued to que stion h im after giving him the Miranda warnings. In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966 ), the United State s Suprem e Court ruled that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires police officers, before initiating questioning, to advise the putative de fendant of his right to rem ain silent an d his right to c ounse l. If these warnings are not given, statements elicited from the individual may not be admitted for certa in purp oses in a crim inal trial. Stans bury v. C alifornia , 511 U.S. 318, 32 2, 114 S . Ct. 1526 , 1528, 12 8 L. Ed. 2 d 293 (1 994).

Moran testified that immediately after Mr. Murray was arrested and read the charges in the indictment, he told Moran “I knew that it was over when I saw the two [Kentuck y State Police] cars parked down th e street, and I’m glad its over with.” Mr. Murray app arently made this statemen t before the Miranda warnings were given. However, there is no indication in the record, and it is not even argued, that this statement was anything other than a spontaneous declaration. As this Court has stated, spontaneous statements “are admissible in evidence whether or not Miranda warnings we re first given.” State v. Brown, 664 S.W.2d 318, 320 (Tenn. Crim. App. 1983). See also State v. Ensley, 956 S.W.2d 502, 511 (Tenn. Crim. App. 1997) (“statements which are spontaneous and

33

volunteered are adm issible in the absen ce of Mira nda wa rnings”). T hus, this statement was clearly admissible.

Moran testified that after he took Mr. Murray to the Kentucky State Police headqu arters and advised him of his rights, Mr. Murray stated “that he knew some information in this case, that he wanted to help, but he wanted to make a deal.” Moran then told Mr. Murray that he could not make any deals because he was not the district attorney gen eral. Mr. Murray then asked if he cou ld talk to another detective in private.10 After he talked to the other detective, Mr. Murray came back into the room and sa id to Mora n, “I’ve got som e inform ation in this case and I think I can get a better deal if I had a lawyer.” At his point, Mora n terminated the inte rview. A lthough the right to counsel and the right against self-incrimination are con stitutional rights, they may be waived, provided the waiver is made “voluntarily, knowingly, and intelligently.” State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992) (citing Miranda, 384 U.S. at 444, 86 S. Ct. at 1612)). “A waiv er is valid if the suspect is aware of the nature of the right being abando ned and th e conseq uences o f the decision to ab andon the right.” State v. Stephenson, 878 S.W.2d 530, 547 (Tenn. 1994). The totality of the circumstances must be examined to determine whether the choice was uncoerced and whether the person understood the consequences of his decision. Id. at 545. In this case, there is no evidence in the record, and it is not even argued, that Mr. Murray ever invoked his right to remain silent. Mr. Murray does not argue th at he did n ot unde rstand either his rights or the consequences of

10 The re cord indic ates that M r. Murra y spoke to Detec tive John Spark s of the K entuck y State Police, whom he had apparently known for a number of years. However, nothing in the record indicates what was said during this conversation and the parties do not suggest that it has any relevance to the determination of this issue.

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waiving them. Furthe r, Mr. Mu rray ha s failed refer to anythin g in the record that might indicate that he was coerced into waiving his right to rema in silent. Although Detective Moran appare ntly failed to obtain a written waiver, the law does not requ ire one. State v. Mann, 959 S.W.2d 503, 529 (Tenn. 1997 ). In short, there is nothing in the record th at indicates that these statemen ts were anything other than voluntary and spontaneous. Thus, these statements were properly admitted.

B. Sixth Amendment Right to Counsel

James Murray argues that certain statements he made to Detective Moran when he was being transported to Tennessee were inadmissible because they were obtained in violation of h is Sixth Am endm ent right to c ounse l. The United States Supreme Court held in Edwards v. Arizona, 451 U.S . 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (19 81) that “a n accu sed . . . having express ed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchan ges, or co nversatio n with the police.” 451 U.S. at 485, 101 S. Ct. at 1888. If an accused remains silent and cuts off questioning, that silence must be “sc rupulously hon ored.” Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). If, on the other hand, a statement is made after the invo cation of th e right to counsel, the co urt must consider whether the accused initiated the further conversation, and whether, given th e totality o f the circumstances, the waiver of counsel was knowing and intellige nt. Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed . 2d 405 (1983).

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Detective Moran testified that after James Murray told him, “I’ve got some information in this case and I think I can get a better deal if I had a lawyer,” Moran terminated the interview. The next time Moran saw Mr. Murray was when Moran went to Kentucky in order to transport Mr. Murray back to Tennessee. Moran testified that after he put Mr. Murray in the police vehicle, he told Mr. Murray that they had a long trip and that because Mr. Murray had previously requested an attorney, he wou ld hono r that requ est and he would not be asking any more questions.11 Mr. Murray then stated that he had some information and he wanted to mak e a de al. At this point, Moran stated “Jimm y, I canno t negotiate a deal with you. I’m a police officer. I’m not the D.A.” Moran testified that Mr. Murray then lowere d his head, stared off into space, and said, “Well, what kind of deal can I get anyway when I’m going to plead guilty.” Moran testified that Mr. Murray was not addressing him when h e mad e this state ment. It is ap parent th at these statem ents were not obtain ed in vio lation o f Mr. Mu rray’s Sixth Amendment right to counsel. The record indicates that despite being told several times that Detective Moran could not make any deals, Mr. Murray continued to try to make one. There is noth ing in the record which indicates that Mr. Murray’s statement that he was “going to plead guilty” was involuntary or coerced. In fact, the record indicates that this statement was not made in response to anything done by Moran. It appears that this statement was a spontaneous declaration that was made while Mr. Murray was basically talking to himself. In short, we hold that these statem ents we re mad e after Jam es Mur ray validly wa ived his righ t to counsel and thus, the statements were admissible.

11 It does not appear from the record, and it is not argued, that this statement by Moran was calculate d to elicit incrim inating state men ts or induc e Jam es Mu rray to waive his asse rted rights. See Rho de Is land v . Innis , 446 U.S . 291, 100 S. Ct. 168 2, 64 L. Ed . 2d 297 (1 980).

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C. Rule 11(e)(6)

James Murra y conte nds th at his statem ents w ere ina dmis sible u nder R ule 11(e)(6) of the Tennessee Rules of Criminal Procedure because they were offers to enter into plea negotiations.12 We disagree. Rule 11(e)(6) states:

Inadm issibility of Pleas, O ffers of Plea s, and R elated S tateme nts. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any oth er crime , or of statem ents made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person wh o made the plea or offer.

Tenn. R. Crim . P. 11(e)(6). Before Rule 11(e)(6) can be invoked to exclude statem ents made by an accused, the statements must be “made in connection with, and relevant to” a plea of gu ilty or a plea o f nolo c onten dere. T herefo re, this Rule is inapplicable in this case because, as a police officer, Detective Moran could not have entered into a plea bargain agreem ent with M r. Murray. See State v. James Wayne Butler, No. 01-C-01-9301-C R-00023, 1993 W L 345551, at *4 (Tenn . Crim. A pp., Nas hville, Sept. 9 , 1993). T his issue has no merit.

V. PRIOR BAD ACTS

Appellant Marcie Murray contends that the trial court should have granted her motion for a m istrial or curative instruction s when Frank E nsworth , an administrator at Bap tist Hos pital, brie fly mentioned an investigation involving Ms. Murray and alluded to a “disciplinary action.” She claims that this raised a

12 As auth ority for this prop osition, Mr . Murray c ites two fed eral cas es, United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976) and United States v. Herman, 544 F.2d 791 (5th Cir. 1977). Both of these cases have be en sup ersede d by statute/r ule. See United States v. Sebetich, 776 F.2d 412, 421 (3d Cir.1985).

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“spectre of other crim es” that un fairly prejudic ed her. T he dispu ted testimony was as follows:

Q: And the reco rd of Marcie M urray, do you show her address and phone number on that particular record?

A: on several of the documents, there are phone numbers; yes.

Q: Okay. Would you tell the jury what the address is reflected on your records, and the phone numbe r?

A: Originally, we have a route 15, Box 576, Pigeon Forge, with a phone numbe r of 429-0074 , and later on, there w as an investigative rep ort--

Q: That’s ok ay sir.

Ensw orth then went on to testify that Marcie had an unexcused absence from work on June 10, 1991, and that she received a “disciplinary letter” because of this. Ms. M urray m oved for a mistrial after b oth of thes e statem ents.

The decision of whe ther to g rant a m istrial is within the sound discretion of the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). We agree w ith the trial cou rt that a mistria l was n ot requ ired in th is situation. As acknowledged by defense counsel at trial, there is no indication that the State so ught to evoke testimony abo ut the investigative repo rt or disciplinary action. Rather, it appears that the State sought to have Ensworth testify that Marc ie had take n off June 10th without an y notice to her employer and had taken June 11th off as well. It appea rs that Ensworth merely mentioned the investigative report in res ponse to questions and there was no further discussion of the report. Moreover, the mere fact that Marcie missed work and was written up by her em ployer did not cons titute a prior b ad act un der Ru le 404(b ) of the Tennessee Rules of Evidence, which states: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in co nformity with that character trait.” Being written up for missing wo rk is simp ly not the kind of prior bad act that Rule 404(b) is concerned with. Even

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if it was, th e State introdu ced th is evide nce to show that Ma rcie had no alibi for June 10 and 11, 199 1. The s tate was not seeking to demonstrate that because Marc ie had a ten dency to miss wo rk, she w as there fore a m urderer. In short, Ms. Murray has not shown that she was prejudiced by the very limited mention of the investigative report and disciplinary letter. 13

VI. SEIZURE OF THE MURRAY’S VEHICLE

Appe llants James and Marcie Murray contend that the trial court erred when it admitted evidenc e regarding the seizure of their red F irebird from the property of a third pa rty in March 1993. T he evide nce the y object to cam e in through the tes timon y of Ca ptain R andy P arton o f the Se vier Co unty S heriff’s Office. Parton testified that in March 1993, he impounded James Murray’s red 1982 Firebird, w hich he d iscovere d in the ba rn of a third p arty just off Highway 139 in Sevier County. He then identified a few photographs of the car that were entered into evidence. Marcie Murray claims that this evidence sh ould not have been admitted because the seizure of the car was illegal because no warrant was issued. Jame s Murra y argues that because the seizure occurred fourteen months after the murder and because the car was only driven by his son, th is evidence was more prejudicial than it was probative.

As to the c laim o f Ms. M urray, it is evident that she la cks stan ding to conte st evide nce o f the dis cover y of the v ehicle in the barn. When challenging the reasonableness of a search or seizure, the defendant has the burden of first

13 Ms. M urray also c omp lains that sh e was n ot provide d with the d isciplinary repo rt prior to Ensworth’s testimony. Howeve r, any error in this failure was harmless in light of the fact that the report was no t introduce d into evide nce an d no furth er refere nce wa s ma de to it.

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establishing a legitimate expectation of privacy in the p lace o r prope rty whic h is search ed. Rawlings v. Kentucky, 448 U.S. 98, 104–05, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980); State v. Roberge, 642 S.W .2d 716, 718 (Tenn. 198 2). This Court has held that the following seven factors are applicable to the standing inquiry:

(1) property ownership;

(2) whether the defendant has a possessory interest in the thing seized;

(3) whether the defendant has a possessory interest in the place searched;

(4) whether he has a right to exclude others from that place;

(5) whether he has exhibited a subjective expectation that the place would remain free from governmental invasion;

(6) whether he took normal precautions to maintain his privacy; and (7) wheth er he wa s legitima tely on the p remise s.

State v. Oody, 823 S.W .2d 554 , 560 (Tenn. Crim. App. 1991). In this case, although the car was seized, no evidence was introduced about whether anything was found in the car itself. Th us, the barn was the thing that was searched and the on ly evidence introduced about the car, other than a few photographs, was that it was fo und in the ba rn and it belonged to Jam es Mu rray. Ms . Murra y clearly fails the above test for determining standing. The barn itself was on the property of a third party and there was no evidence that Ms. Murray ha d any poss essory interest in the barn. In fact, the only evidence introduced on this point indicates that the ca r had b een le ft in the barn without the owner’s permission. Indeed, there was no evidence that Ms. Murray exhibited any subjective expectation that the barn wo uld rem ain free of g overnm ent intrusio n or that sh e did any thing to prevent such an intrusion. Finally, Ms. Murray did not own the car and she claimed in her direct testimony that her son was the only one w ho drove the c ar. Thus, Ms. Murray does not have standing to contest the search of the barn and the fact that James’ car was found in the barn.

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James Murray claims that because the car was found fourteen months after Don Hurt’s murder, this evidence should have been e xclude d bec ause it was too rem ote and thus, its admission would mislea d the jury. 14 We disagree. Evidence presented at trial indicated that Don H urt was shot on June 11, 1991, by someone in a red or orange Firebird or Camaro type vehicle and that the Murrays were driving a red Firebird or Trans Am in th e Fall of 19 91. The evidence that James Murray did in fact own a red Fire bird is directly re levant to establishing that he pa rticipated in th e June 11, 199 1 shoo ting. It is difficult to see how the fact that the police did not discov er this car an d pho tograp h it until March 1993 makes the photographs and the testimony about its discovery too remote to be adm issible. However, even if this evidence was slightly remote, any prejudice caused by its remoteness did not substantially outweigh its obvious probative value. See Tenn. R. Evid. 403. Thus, the trial court was correct when it admitted this eviden ce. This issue ha s no m erit.

VII. ADMISSION OF A SHOTGUN SHELL

Appellant James Murray contends that the trial court erred when it admitted a “sabot” shotgun shell into evidence. However, this issue is waived because he failed to object to the admission of this shell at the time it was offered by the State. See Tenn. R. App. P. 36(a). However, even on the merits, the admission of the shell w as not im proper. M r. Murray contends that because this shotgun shell was fo und in the po sses sion o f his son thirteen mon ths afte r Don Hurt’s murder, its introduction violated Rule 403 of the Tennessee Rules of Evidence

14

Mr. M urra y does not c onte st the legality o f eithe r the s earc h of th e bar n or th e seiz ure o f his vehicle.

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by misleading the jury into thinking that there was so me con nection betwe en Mr. Murray and the shell. The record reveals that the shell was used mainly to assist a firearms expe rt in describing the markings placed on these types of shells by the manufac turer. There was a bsolu tely no tes timon y abou t where or how this shell was obtained. Thus, there was no way for the jury to conne ct this shell to either Mr. M urray or his son. Th is issue is w ithout me rit.

VIII. PROSECUTORIAL MISCONDUCT

Appe llants Sharon Hurt and Marcie Murray contend that their due process rights to a fair trial were violated because the State withheld material evidence that was favorable to their case and knowin gly used perjure d testimony. Specifically, they allege that they should have been granted a new trial because the State instructed Rowe not to reveal the full extent of his agreement with the State when he testified at trial and because the State knowin gly use d Row e’s perjured testimony about the agreement he had with the State.

Ms. Hurt and Ms. Murray base their claims on two sworn statements given by Leonard Rowe on August 1 and August 27, 1996, over one year after the trial. The statement of August 1st was given to couns el for Ms. Hurt and the statement of August 27th was given to counsel for Ms. Hurt and counsel for M s. Murray. These statem ents we re given in th e presence of a court reporter, but no representative of the State was present to cross-examine Rowe during either statem ent. In the first statement, Rowe claimed that during the trial, he “was under a lot of pressure on the witness stand, threats, if [he] didn’t convince the jury that [Appellants] were guilty, the D.A. was going to burn [his] ass.” In

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addition, he said that the prosecutor promised him a letter of recommendation so that he wou ld mak e parole at the earliest possible date. Rowe stated that he believed that this meant that he would o nly “do a little bit more jail time,” although he admitted that there was never a ny disc ussio n of ho w mu ch tim e he w ould actua lly serve. Rowe also claimed that he was “tutored” b y the pros ecutor a s to what to say at trial and the prosecutor “put words in [his] mouth.” Rowe claimed that he did not tell the truth at trial, but he refused to specify what he had been untruthful about. Rowe also state d that he fe lt that the Sta te had n ot lived up to its promises, but he refused to say why that was the case. In the second statem ent, Rowe reitera ted these claims and stated that the prosecutor spec ifically told him not to reveal the fact that he had made a deal with the State. Desp ite mak ing the se alle gation s, Row e invok ed his Fifth Amendment privilege against self-incrim ination an d refuse d to testify during the hearing on the Motion for a New Trial.

W e conclude tha t the trial court prope rly refused to gran t the Motion for a New T rial based on Ro we’s affida vits. As this C ourt has previous ly stated,

A motion for a new trial is only a pleading. An affidavit, such as the one in this case, is merely an exhibit to such motion. To show the existence of this evidence, proof must be offered by the moving party. To grant relief on affidavits only would deny the opposing party an opportunity to test the accuracy or veracity of the information contained therein by confrontation or by evidence contrary to this assertion. The trial judge properly denied the motion for a new trial on this ground.

Hicks v. State, 571 S.W.2d 849, 852 (Tenn. Crim. App. 19 78). See also State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim App. 1995) (citing Hicks, 571 S.W.2d at 852) (“the trial court should not determine the merits of the petition on the strength of the affidavits alone”). Further, under Rule 33 of the Tennessee Rules

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of Criminal Proc edure, the m ere incredibility of an affidavit is sufficient for a trial court to disregard it and require an evidentiary hearing on the matter. See Tenn. R. Crim . P. 33 (c omm ent) (“T he jud ge is n ot requ ired to b elieve a n incre dible affidav it and ma y always require a n evidentiary hea ring with witnesses .”).15 In this case, App ellants were granted an e videntiary hearing , but Row e refuse d to testify. Thus, the on ly evidence pre sented to the court on this claim was contained in the affidavits which we re mad e witho ut the p resen ce of th e State ’s attorney. There fore, the trial co urt prope rly refused to grant A ppellants a new trial based on the allegations made in the affidavits.16

IX. NEWLY DISCOVERED EVIDENCE

Appe llants Sharon Hurt and Marc ie Murray conte nd that the trial court erred when it refused to grant them a new trial based on what they characterize as newly discovered evidence. They base their claim on a sworn statement given by Carrie Sims on March 1, 1996. In her statement, Sims asserted that her husband had confided in her that he had killed Don Hurt as a favor to a man named “Cowboy” after he had s hot and wo unded D on Hurt six m onths earlier. Sims stated that she decided to come forward with this story after she met Ms. Hurt and Ms. Murray while she was incarcerated and she “put two and two together.”

15 W e hav e rev iewe d Ro we’s affid avits a nd w e agr ee th at the unsu ppo rted a llegat ions they c onta in are simply not credible. This is especially true in light of the fact that both Rowe and his counsel testified at trial that there was no secret a greem ent with the State.

16 Because we conclude that there was no credible evidence that Rowe had any secret agreement with the State, we need not address the potential consequences of purposefully concealing such an agreem ent.

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The trial court properly refused to grant a new trial based on this statement for the same reason that it prope rly refus ed to g rant a n ew trial b ased on Ro we’s sworn statem ents. Sims’ sworn statement was also taken without the presence of an attorney for the State and Sims also refused to testify at the hearing on the Motion for a New Trial. As a result, the trial court decided not to consider the statement because there was no way to tes t its veracity without Sims ’ testimony. This was c learly w ithin the court’s disc retion. See Hicks, 571 S.W.2d at 852; Tenn. R. Crim. P . 33 (com ment). See also Hart, 911 S.W.2d at 852 (“If the trial court does not believe that the witnesses presented by the accused are credible, the court shou ld deny [relief].”).17 This issu e has n o merit.

X. DENIAL OF FUNDS FOR EXPERT SERVICES

Appe llants Sharo n Hurt an d Marc ie Murray conten d that the trial court erred in denying their motion for state funds to employ the services of an expert in the field of pathology/toxicology. Specifically, they argue that this denial violated their due process rig hts to a fair trial b ecaus e they we re unab le to contest the State’s proof that the level of Benadryl in Don Hurt’s system at the time h e was killed w as m any tim es hig her tha n the n orma l therap eutic le vel.

At the time of Appellants’ motion in December 1994, Tennessee law did not provide for such expert assistance in non-capital cases, and the trial court prope rly denied the mo tion. See Tenn. C ode Ann. § 40-14-207(b) (1997) (allowing for authorization of funds for exp ert serv ices on ly in capital cas es); see

17 W e hav e exa min ed S ims ’ swo rn sta tem ent a nd, if a nythin g, it is e ven le ss c redib le tha n Ro we’s sworn statements.

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also State v. Williams, 657 S.W .2d 405, 411 (Tenn. 198 3); State v . Harris , 866 S.W.2d 583, 585 (Tenn. Crim. App. 1992). On appeal, however, Appellant relies upon State v. Barne tt, 909 S.W.2d 423 (Tenn. 1995), a Tennessee Supreme Court case which post-dates the trial court's ruling. In Barne tt, the supreme court held that, where an indige nt defe ndan t’s nee d for a s tate-pa id psyc hiatric expert touches upon a due pro cess co ncern, a trial court may order such services even in non-capital cases, provided the defendant can demonstrate a “particularized need.” Id. at 431 . Wh ile Barne tt dealt with a psychiatric expert, this Court has previo usly extende d the rea soning of Barne tt to other forms o f expert assistance. See State v. James W. Jacobs, No. 01C01-9601-CC-00048, 1997 WL 576493, at *2 (Tenn. Crim. App., Nashville, Sept 18, 1997) (citations omitted). Because Barne tt constitute s a new constitution al rule, it mu st be app lied retroac tively to Appe llants’ case . See id.

Ms. Hurt and M s. Murray rely on a m otion of December 15, 1994, which was supported by an affidavit of counsel, to show that they met the Barnett requirement of demonstrating “particularized need.” Although the motion and affidav it are included, the record does not contain a transcript of the proceedings or an order of the trial court de nying the motion . It is the duty of the party seeking appellate review to prepare a record which conveys a fair, accura te and co mplete account of what tran spired w ith respec t to the issue s raised b y the party. State v. Ballard, 855 S.W.2d 557, 560–61 (Tenn . 1993); State v. R oberts, 755 S.W.2d 833, 836 (Ten n. Crim. App . 1988). W hen the reco rd is incomplete, and does not conta in a transcript of the proceedings relevant to an issue presented for review, this Court is p reclude d from c onside ring the iss ue. State v. Groseclose, 615 S.W.2d 142, 147 (Ten n. 1981). Instead , this Court must conclusively presume

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the ruling of the trial court denying a motion was correct. Ballard, 855 S.W.2d at 560–61; Robe rts, 755 S.W.2d at 836. Even on the merits, it appears that Appe llants could not have es tablished a “particula rized nee d.” Appellants argue on appeal that they had a “particularized need” because a lab report from the Tennessee Bure au of In vestiga tion indicated that the level of Benadryl in Don Hurt’s system was therapeutic, which contradicted Doctor Harlan’s testimony that the level was ma ny times grea ter than the therap eutic level. Howeve r, Appellants’ counsel could have called either the analyst who prepared the report, the analyst who told him that the report indicated a therapeutic level of Bena dryl, or their supe rvisor. It appe ars that co unsel m erely electe d not to, fearing that their testimony would be more damaging than helpful. It appears that what Appe llants are really conte nding is th at they ne eded e xpert ass istance to refute the State’s proof. However, when a motion for expert assistance is “accompanied by little more than undeveloped assertions th at the serv ices [are] n eeded to attempt to counter the State 's proo f,” the tria l court is within its discre tion in denying the requ est. Barne tt, 909 S.W.2d at 430. Thus, this issue has no merit.

XI. “THEY DID STUFF LIKE THIS BEFORE”

Appellant Sharon H urt conte nds th at the tria l erred w hen it refused to grant a mistrial after Rowe testified that “they did stuff like this before.” Sp ecifically, she argues that this reference to “they” made it seem as if she had killed someone before.

The record indicates that prior to Rowe ’s testimo ny, the Sta te agree d to question Rowe only generally as to why he did not testify truthfully in prior

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proceedings and not to question Rowe as to the specifics behind the reason. During Rowe’s direct examination, the following colloquy occurred:

Q: Mr. Rowe, I’ll ask you, while you were in Tallahassee, Florida, did you have an occasio n to discu ss the m urder of D on Hu rt?

A: Sharon and I, one afternoon we went to a seafood restaurant and had dinner, and when we finished dinner and got back out in the car, and I asked Jimmy Murray directly what happened and he told me how they had put mickeys in Don Hurt’s drinks and how the three of them walked him to the front door and he shot Mr. Hurt in the head and Marcie shot him in the head, and he said the reason both of them shot him was where they couldn’t tell on one a nother.

....

Q: Were any statem ents m ade to yo u abou t what wo uld hap pen to you if you told anybo dy?

A: Yes, sir. They sa id that they did stuff like this before--

Q: No, if Your H onor please --

The prosecutor then told the court in a ben ch co nferen ce tha t he ha d repe atedly gone over the parameters of Rowe’s testimony with him and that he had given this answer despite these admonitions. Ms. Hurt then moved for a mistrial, which was denied. Th e court then gave the following instruction, “The last response of the witness is to be stricken from the record and stricken fr om th e jury’s conside ration.” The court then told the prosecutor to leave that question and move on to som ething els e, which h e did.

The decision of wheth er to gra nt a m istrial is within the sound discretion of the trial cour t. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This court will not disturb that decision absent a finding of abuse of discretion. State v. Adkins, 786 S.W.2d 642, 64 4 (Ten n. 1990 ); State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). Furthermore, we presume that the jury followed the trial court’s explicit instruction not to consider the inappro priate comm ent. State v. S mith, 893 S.W.2d 908, 923 (Tenn. 1994). In fact, although Rowe’s statement was somewhat ambiguous, the logical inference

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when the statement is taken in context is that he was referring to the Murrays, not to Ms. Hurt. In light of the limited nature of the offending testimony and the trial court's prompt cura tive instru ction, th e trial co urt did n ot abu se its dis cretion in refusing to grant a mistrial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 19 93). Th is issue ha s no m erit.

XII. IMPEACHMENT TESTIMONY

Appellant Marcie Murray contends that the trial court erred when it ruled that she could not impeach Rowe with the testimony of Lanny Clark. Specifically, Ms. Murray contends that Clark should have been allowed to testify that Rowe had offered him $2,500 to either shoot or find someone else to shoot a man named Cotton Mu rray.18

During a jury-out hearing, Rowe was cross-examined about whether he ever attempted to hire Clark to shoot Cotton Murray. Rowe denied the allegations. The trial co urt ruled that defense counsel could cross-examine Rowe about the allegations, but that no extrinsic evidence would be permitted. Rowe was subsequently cross-examined about the allegation, and he once again denied it. Later, defense cou nsel proffered C lark’s testimony, but the court reiterated its finding that this evidence was not admissible because it related to a collatera l matter.

18 Cott on M urra y was appa rently n ot rela ted to Jam es an d Ma rcie M urra y.

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Ms. Murray contends that Clark’s testimony did not concern a collateral matter because it went to R owe’s kn owledg e and a bility to emp loy som eone to maim or kill another person. We agree with the trial court that this evidence was purely collateral. There was absolutely no proof that Rowe had hired or attempted to hire som eone to kill Don Hurt. T hus, th e only re levanc e of Cla rk’s testimony would be to show that Rowe had lied about trying to hire Clark to shoot Cotton Murray. E ssentially, Ms. Murray is arguing for what Rule 608(b) of the Tennessee Rules of Evidence was designed to prohibit. Rule 608(b) states:

Spec ific instances of conduct of a witness for the purpose of attacking or supporting the witness’s credibility, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence. They m ay, however, if probative o f truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness’s character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified.

Tenn. R. Evid. 608(b). Thus, Clark ’s testimony regarding this collateral matter was clea rly inadm issible und er Rule 6 08(b). T his issue has no merit.

XIII. FAILURE TO PROVIDE CRIMINAL RECORDS OF WITNESSES

Appellant Marc ie Mur ray con tends that the trial cou rt erred when it denied her motion requesting that the State be required to produce the criminal records of all of its witnesses. Ms. M urray acknow ledges that un der State v. Workman, 667 S.W.2d 44, 51 (Tenn. 1984), the State has “no duty, either under the Tennessee Rules of Crimina l Proced ure or by d ecisiona l law in this state ,” to provide such disclosure. She contends, however, that this disclosure is required by federal constitutional law.

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As support for her proposition, Ms. Murray cites Wa rdis v. Oregon , 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). However, neither of these cases holds that the prosecution has an absolute duty to disclose the criminal records of its witness es to the d efense . W ardis stands fo r the prop osition that discovery rules m ust be re ciprocal. 4 12 U.S . at 472, 93 S. Ct. at 2211. Thus, that case is inapplicable here because Tennessee law does not require the defense to divulge the criminal re cords o f its witnesse s while exe mpting the State from doing the same. Agurs stands for the proposition that criminal records of a witness or victim m ust be disclos ed wh en the y are m aterial. 427 U.S. at 111–12, 96 S. Ct. at 2401–02. However, the Court specifically noted that “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not es tablish ‘mate riality’ in the con stitutional se nse.” 42 7 U.S. a t 109–1 0, 96 S. C t. at 2400.

The Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishm ent.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 11 94, 1196– 97, 10 L. Ed. 2 d 215 (196 3). In addition, the Court has st ated th at “[w]h en the reliability o f a given witnes s ma y well be determina tive of guilt or innocence, no ndisclos ure of evid ence a ffecting cre dibility falls within this general rule.” Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) (citation om itted). “Such eviden ce is ‘evidence favora ble to a n acc used ,’ Brady, 373 U.S . at 87[, 83 S. Ct. at 1196], so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” United States v. Bagley, 473 U.S . 667, 676 , 105 S. C t.

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3375, 3380, 87 L. E d. 2d 481 (19 85). Howe ver, before an accu sed is en titled to relief under this theory, he must establish several prerequisites: a) the prosecution must have suppresse d the evidence ; b) the evidence s uppressed must have been favorable to the accused; and c) the evidence must have been material. See Bagley, 473 U.S . at 674–7 5, 105 S . Ct. at 337 9–80; Agurs, 427 U.S. at 104, 96 S. Ct. at 23 97; Brady, 373 U.S . at 87, 83 S . Ct. at 119 6–97. In State v. Spurlock, this Court recogn ized a fourth prere quisite to relief: “the accused must make a proper request for the production of the evidence, unless the evidence, wh en viewed b y the prosecu tion, is obviously exculpa tory in nature and will be helpful to the accused.” 874 S.W.2d 602, 609 (Tenn. Crim. App. 1993) (citations omitted). Moreo ver, the defendant has the burden of proving a constitution al violation by a prepo nderan ce of the e vidence . Id. at 610.

In this case , Marcie M urray has shown that she made a request for the witnesses’ criminal records. However, she has not presented any evidence, or even argued, that any of the State’s witnesses actually had criminal records for the State to suppress. Further, she has failed to explain how s uch re cords would have been material. Thus, even if th e trial co urt had erred in denying her motion, Ms. Murray has failed to establish how she was p rejudic ed by th e den ial. 19 In short, Ms. Murray has failed to establish that her due process right to a fair trial was violated by the tr ial cou rt’s den ial of her motion for the disclosure of the witnesse s’ crimina l records. T his issue has no merit.

19 W e are unconvinced by Ms . Murray’s argument that due proce ss requires disclosure in every case becaus e the State has a mo nopoly on this information. To the contrary, Ms. Murray could have obtained som e of this info rma tion herse lf with the exe rcise of re asona ble diligence . See Tenn. Code Ann. § 40-32-101(c)(3) (Supp. 1998) (“Release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to such attorney on request.”).

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XIV. MISSING WITNESS INSTRUCTION

Appellant James Murray contends that the trial court erred when it gave the missing witness instruction regarding Pam Woolums. We disagree. “Under the missing witness rule, a party is entitled to argue, and have the jury instructed, that if the other party has it peculiarly within his power to produce a witness whose testimony would naturally be favorable to him, the failure to call that witness creates an adverse inference that the testimony would not favor h is conten tions.” State v. Middlebrooks, 840 S.W .2d 317, 334 (Tenn. 199 2) (citations omitted). “Before the missing witness rule can be invoked, however, the evidence must show that ‘the witness had knowledge of material facts, that a relations hip exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness w as availab le to the process o f the Court for trial.’” Id. (quoting Delk v. S tate, 590 S.W.2d 435, 440 (Tenn. 1979)). It has freque ntly been noted that the missing witness rule cannot be invoke d abse nt a showing that the witn ess wa s not equ ally available to both pa rties. See State v. Boyd, 867 S.W .2d 330 , 337 (T enn. C rim. App . 1992). T his last requirement means that it must not be likely that the witness will be as favo rable to on e party as to the othe r. D AVID L OUIS R AYBIN, T ENNESSEE C RIMINAL L AW & P ROCEDURE, § 30.64 at 142 (1985) (citing MCC ORMICK, E VIDENCE § 272 (3d ed . 1984)).

In this case, Woolums clearly had knowledge of material facts in this case.

The Murrays claimed that they were with Woolums in Gatlinburg, Tennessee when Don Hurt was murdered. Obviously, Woolums could have testified about whether this was true or not, thus, e ither cred iting or discre diting the a libi. In addition, Woolums is Ms. Murray’s half-sister and th us, cle arly ha s a rela tionsh ip

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with the Mu rrays th at wou ld natu rally incline her to favor them. Further, Woolums was available to the process of the court. In fact, James Murray’s trial counsel acknowledged that even though Woolums was living in Kentucky, he c ould have declared her to be a material witness and followed the procedures to have her prope rly subpoenaed, but he simply failed to do so because he did not think that it was n eces sary. F inally, it is not like ly that W oolum s wou ld have been inclined to be as favorable to the State as she would be to the Murrays.20 Thus, the trial court properly gave the missing witness instruction.

XV. JURY MISCONDUCT

Appellant James M urray contend s that the jury engaged in misconduct because it only deliberated for two hours and ten minutes before returning a verdict. Mr. Mu rray ac know ledge s, how ever, th at his positio n is dire ctly contrary to the established law of this state. Indeed, this Court has stated numerous times that “[t]he length of a jury’s deliberation has no bearing on the strength or correctness of [its] verdict or the validity of [its] verdict.” State v. Gray, 960 S.W.2d 598, 605 (T enn. Crim. A pp. 1997) (finding no miscon duct when jury deliberated for only one hour). See also State v. Spafadina, 952 S.W.2d 444, 451 (Tenn. Crim. App. 1996) (forty-nine minute deliberatio n); State v. Cald well, 656 S.W.2d 894, 897 (Tenn. Crim. App. 1983) (tw enty-six m inute deliberation); Anglin v. State, 553 S.W .2d 616 , 620 (T enn. C rim. App . 1977) (te n minu te deliberatio n). This iss ue has no me rit.

20 In addition, the record in dicates th at after sh e was liste d as an alibi witness, W oolum s mo ved to an unknown address with no telephone and trial counsel for James Murray was only able to contact W oolum s thro ugh the e fforts of the Mur rays’ d aug hter, Lade ria. It is n ot like ly that L ade ria M urra y wou ld have been so ac com mo datin g to th e Sta te. Th us, it a ppe ars th at no t only w as W oolum s not “equ ally available” as that phrase in used as a term of art, but she was also not “equally available” in the literal meaning of the phrase.

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XVI. OMISSIONS IN THE RECORD

Appellant James Murray complains that there are twenty-nine separa te instances in the record where the court reporter indicated that she could not hear what was occurring during a bench conference because of the position of the microphone. As a result, Mr. Murray agues that he was not able to prepare a record that is a “fair, acc urate an d com plete acc ount of w hat trans pired with respec t to the issue s formin g the ba sis of the a ppeal.”

It is not clear from his brief whether Mr. Murray is claiming tha t he is entitled to relief be caus e of the se om ission s, whe ther he feels the nee d to justify his failure to provide this Court with a com plete re cord, o r wheth er he s imply wants to bring these omissions to the atte ntion o f this Co urt. In an y case , it is apparent that the omissions are not lengthy and at times the y appea r to consist of only a few words or a sentence. It does not appear that any of the omissions affected the recording of the nature of Mr. Murray’s objections or the outcomes of the bench conferences. Further, Mr. Murray has failed to indicate how, or even if, he was prejudice d by the o mission s. In short, Mr. Murray is not entitled to relief simp ly becau se these omissio ns occu rred. See State v. Blaine M. Wright, No. 03C01-9410-CR-00388, 1995 WL 728535, at *10 (Tenn. Crim. App., Knoxville, Dec. 11, 199 5) (stating th at defen dant wa s not entitled to relief whe n he failed to show how he was pre judiced by thirteen u nintelligible portions of the reco rd).

XVII. SENTENCING

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All three Appellants contend that the trial court erroneously sentenced them to long er term s than they de serve . Spec ifically, they argue that the trial court erred when it imposed consecutive sentences based on a finding that they were dangerous offenders.21 Under Tennessee law, “[w]hen reviewing sentencing issues . . . including the gran ting or den ial of proba tion and th e length of sentence, the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the co urt from w hich the a ppeal is ta ken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the presumption of correctness which ac comp anies the trial court's ac tion is cond itioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Ten n. 199 1). In co nduc ting ou r review , we m ust co nside r all the evidence, the pres entenc e report, the sentencing principles, the enhancing and mitigating factors, argum ents of couns el, the appellant’s statem ents, the nature and character of the offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the sentence is im proper.” Id.

Consec utive sentencing is governed by Tennessee Code Annotated § 40-35-115. The trial court has the discretion to order consecutive sentencing if

21

Marcie Murray also argues that the trial court erred when it enhanced her sentence under Tenn essee Code Annota ted § 40- 35-114 (4) base d on a find ing that the v ictim wa s particula rly vulnerable. She argues that this is unfair because the court based its finding on the fact that Don Hurt had been drugged after the court had denied he r the funding to hire an expert to disprove this conclusion. However, the record reveals that the court’s use of this enhancement factor was also based on Don Hurt’s physical disa bilities that w ere c aus ed by t he pr ior atte mp t on h is life o n Jun e 11, 1991 . In an y cas e, the trial co urt’s denial of fu nding for an exp ert was c orrect. See Part X, supra.

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it finds that one or more o f the requ ired statuto ry criteria exist. State v. Black, 924 S.W .2d 912 , 917 (T enn. C rim. App . 1995). F urther, the court is req uired to determine whether the c onsecutive se ntences (1) a re reaso nably related to the severity of the offenses committed; (2) serve to protect the public from further criminal conduct by the offen der; and (3) are congruent with general principles of senten cing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Because the record indicates that the trial court considered the sentencing principles and all relevant facts and circumstances, our review of Appellants’ sentences is de novo with a presumption of correctness.

The trial court based its decision to order all three Appellants to se rve their sentences for conspiracy consecutively to their sentences for first degree murder on a findin g that th ey wer e all dangerous offenders. Spe cifically, the trial court made the following findings:

Each is properly c haracte rized as a dange rous offe nder. I’ve looked both at the statutory definition and find it to be applicable, but I’ve looked beyond that and make a finding based upon the fac ts, all the facts before the Court, first of all, just all the facts of the offense itself; the murder, the sustained, very sustained intent, elaborate planning, multiple efforts, obviou sly once the design was formed to kill the victim in the case, the three perpetrators were just go ing to c ontinu e that e ffort unt il they fina lly succeeded, which they ultimately did. Very cold-blooded, very calculated, and when you’ve got greed as the motive, then you’ve got a situation where there is always the potential for recurrence, and therein comes the protections, the need to protect the comm unity or to protect the public from further offenses.

The court a lso fou nd tha t cons ecutive sentences were appropriate based on evidence that Mr. Murray had secreted a razor blade in his prison cell in an apparent attempt to escape, that Ms. Murray had written a letter to her son telling him to assault Sharon Hurt’s son and telling him how he co uld locate Leo nard Rowe, that Ms. Murray had committed perjury during the trial, that Ms. Hurt had

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committed perjury in her civil trial, and that Ms. Hurt had been in unlawful possession of a weapon on numerous occasio ns. In sho rt, the court fo und tha t, with respect to all three Appellants, “that anything would have been done and would be d one again b y them for m oney.”

Based on our de novo review of the record, we find that the trial c ourt did not abus e its disc retion w hen it imposed consecutive sentences. First, we agree with the trial court that Appellants are dangerou s offende rs. Their e laborate planning and multiple attempts to kill Don Hurt clearly indicate that they have no regard for human life and they have no hesita tion in taking human life. Second, we agree with the trial court that there is evidence in the record which indicates that consecutive sentences are necessary in this case to protect the public from further criminal c onduc t. In addition to killing Do n Hurt ou t of greed , Appella nts have demonstrated an almost total disregard for the law by threate ning the life of Rowe and his family, offering to bribe Gurley to testify falsely, and committing perjury. Further, the evidence introduced at trial indicates that rather than ever showing any remorse for what they had done, Appe llants m erely laughed about the murde r. The trial court did not abuse its discretion in finding that the public needed protection from these people who would perform even the most cold- blooded acts for mon ey. Third, even though the trial court made no express finding, we conclude in our de novo review that given the egregious nature of Appellants’ offenses, the aggregate sentences are reasonably related to the severity of the crimes involved. As this Court has previously stated, if our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court’s

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findings of fact a re ade quate ly supported by the record, the n we m ay not m odify the sentence e ven if we would h ave preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In short, Appellants have failed to demonstrate that the trial court’s imposition o f consecutive sentences was an abuse of discretion . This issu e has n o merit.

XVIII. CUMULATIVE ERROR

Appellant Marcie Murray contends that she was denied a fair trial based on the cumulative error in this case. Ms. Murray is correct that the combination of multiple errors may necessitate the reversal of a conviction even if individual errors do not require re lief. See State v. Brewer, 932 S.W.2d 1, 28 (Tenn. Crim. App. 1996). However, we have carefully reviewed the record in this case and cons idered the errors assigned by Ms. Murray, b oth individually and cu mulatively, and have determined that none constitute prejudicial error requiring a revers al. This issu e has n o merit.

Accordingly, the judgement of the trial court is AFFIRMED.

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JERRY L. SMITH, JUDGE

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CONCUR:

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GARY R. WADE, PRESIDING JUDGE

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DAVID G. HAYES, JUDGE