State v. Paul William Ware

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 April 20, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705-CR-00164 )

Appellee, )

)

) HAMILTON COUNTY

VS. )

) HON. DOUGLAS A. MEYERS PAUL WILLIAM WARE, ) JUDGE )

Appe llant. ) (Felony Murder, Rape of a Child)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General and Reporter

DONNA ROBINSON MILLER MICH AEL J . FAHE Y, II Assistant District Public Defender Assistant Attorney General Suite 300 - 701 Cherry Street 425 Fifth Avenu e North Chattanooga, TN 37402 Nashville, TN 37243

WILLIAM H. COX

District Attorney General 600 Market Street, Suite 300 Courts Building

Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Defe ndan t, Paul W are, wa s indicted in 1994 for felony murder and

multip le counts of rape of a child. The State filed notice of intent to seek the death penalty. A Ha milton Coun ty jury fou nd him guilty of felony murder and two counts of child rap e, and h e was s entenc ed to life witho ut parole for the felony murder. At a subsequent sentencing hearing, the trial court imposed concurrent twenty-five year sentences for the child rape convictions and ordered that the twenty-five year sentences be served consecutively to the sentence of life without the possibility of parole. The Defendant now appeals his convictions and sentences pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. We affirm the ju dgme nt of the trial co urt.

The Defendant presen ts eight issues on appeal: (1) whether the evidence presented at trial is sufficient to suppo rt his convic tions; (2) wh ether the State withhe ld exculp atory in forma tion from the De fenda nt, resu lting in an unfair tria l; (3) wheth er the re sults o f mitoc hond rial DN A ana lysis were properly a dmitted into evidence; (4) whether the trial court erred by excluding evidence indicating that State witness Pau l Crum practiced Satanic worship; (5) whether the trial judge demonstrated bias against the Defendant in the presence of the jury; (6) whether there was su fficient accu mulation of errors to mandate a new trial; (7) whether consecu tive sentences were prope rly imposed; an d (8) whether the trial court erred by failing to declare a mistrial or halt jury deliberations because of the testimony of a newly discovered defense witness.

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On the evening of F riday, Septem ber 30, 1994 , four-year-old Lindsey Green, the victim in this case, was staying with her mother, Sylvia Kaye Dye,1 at 414 Stringer Street, the home of Sheila Sanders King. At the time, Dye was temp orarily living with Ms. King and King’s two young sons. Dye, who planned to go out with her boyfriend for the evening, contacted the victim’s father, Jimmy Green, at approximately 6:00 p.m. Green agreed to pick up the victim later in the evening, and Dye arrang ed for M s. King to watc h the vic tim until Green arrived.

The Defendant, who shares family ties with Ms. King,2 arrived at 414 Stringer Street du ring the afte rnoon to help C arl San ders, K ing’s fa ther, re pair a screen door. Danny Gadd is, Dye’s boyfriend, also arrived at the home that afternoon after work. After consuming some alcoholic beverages with the Defen dant, King, a nd Ca rl Sand ers, D ye and Gad dis depa rted at a pprox imate ly 8:00 p.m. for Zig gy’s, a local bar. 3

W hile at Zigg y’s, Dye receiv ed a phone call from Ms. King, who told her that the victim’s nose had begun to bleed. Ms. King explained that one of her sons had a ccide ntally bu mpe d the vic tim’s nose while the children played. King told Dye tha t the victim w anted h er moth er to com e hom e, and D ye agree d to return.

1 Sylvia Kaye Dye, the victim’s mother, and Jimmy Green, the victim’s father, shared custody of their daughter. During the week preceding the crime, the victim resided with her father, but the victim was visiting her mother on the weekend that the crime occurred. 2 The Defendant’s half-brother, David Ware, who shares with the Defendant a common father, is also the half-brother of Sheila Sanders King, with whom he shares a common mother. At trial, Sheila referred to the Defendant as her “stepbrother,” but, they are not actually related by blood or marriage. 3 Danny Gaddis testified that he and Dye departed for Ziggy’s around 7:30 p.m., while Dye testified that they left at 8:30 p.m.

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At appro ximate ly 10:30 p .m., 4 Dye and Gaddis left Ziggy’s to go to another local bar. They walked back to 414 Stringer Street, saw the children playing inside the house thro ugh the scre en door, and d eparte d in their car without being noticed by the children. They then drove to an other bar, where they sta yed un til about 1:30 a.m ., at which tim e they went to a loc al W affle Hou se for bre akfast. Some where in the vicinity of 2:30 a.m., Dye and Gaddis left the Waffle House and dro ve directly to 4 14 String er Street.

During the tim e that D ye and Gad dis were gone, Ms. King’s sister, C arla Sanders, and he r boyfriend , Paul Cr um, arrive d at 414 Stringer S treet. Crum was delivering some marijua na that King had given him money to buy. King asked Crum to babysit the children while she went out, and he agreed to do so for ten dollars an d a pac k of cigare ttes.

Ms. King depa rted on foot with he r father Carl San ders (who had remained at her home throughout the afternoon and early evening) at approximately 10:45 p.m.5 They stopp ed by Ziggy’s, ho ping to find Dye and Gaddis, and, not having found them, stopp ed by a liquor store next door to Ziggy’s, then proceeded to the Do Drop In Again, another local bar. While there, King encountered th e Defendant. He wa s having a drink at th e bar an d seem ed “high ” to King. Ms. King invited h im to spend the night at her house. The Defendant had stayed at her home on a number of previous occasions and in fact had lived for a brief time

4 Gaddis testified that he and Dye stopped by 414 Stringer Street at approximately 9:00 p.m., but he also acknowledged that in his initial statement to the police, he estimated the time to be “about 10:30.” He explained, “I don’t wear a watch.” 5 King believed that Dye and Gaddis would return to her home sometime around 11:00 p.m.

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at 414 Strin ger Stree t approxim ately one month prior to the d ate of the crime.6 Howeve r, Ms. King ask ed him to m ove out before Dye and the victim moved into the home because, according to King, “usually when he was drinkin g he w ould come to my ho use an d break my wind ow to m y door. . . . [i]t was a little too crowded for me.” King testified that when the Defendant stayed at her home, he slept “in the floor or on th e couc h.”

Ron Ande rson, a “[w]ork acqu aintance” of the Defendant, saw the Defendant sitting with King at the Do Drop In Again that evening. He testified that he spoke with the D efenda nt a coup le of times during the evening . Accord ing to Anderson, during their seco nd convers ation, which occ urred shortly before Anderson left, the D efend ant sta ted, “‘D on’t hu rt my sis ter’ . . . in a w ay whe re if a person was to say something wrong, it could lead to . . . maybe an argument or something . . . .” Anderson stated that he “just took it as someb ody being very drunk and just saying som ething they didn’t realize w hat they’d said.”

Anderson testified that he believed the Defendant left the bar around 2:15 a.m. Ms. King testified that s he left the b ar to drive to Alabama with some friends shortly after 2:00 a.m. and stated that she was unsure whether the Defendant was still at the b ar whe n she left. King did no t return to 414 String er Stre et until 6:30 or 7:00 a.m.

Paul Crum was therefore the only person who offered testimony about the events at 414 Stringer Street immediately preceding the discovery of the victim ’s

6 Ms. King testified that the Defendant may have been living at her home only three weeks before the night of the crime.

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body. Crum testified that he arrived with C arla Sanders at 414 Stringer Street at 9:30 or 10:00 p.m. He explained that he was looking for the Defendant so he could deliver to the Defendant some marijuana that the Defendant had requested earlier that day. He stated that King suggested that the Defendant was either at Ziggy ’s or the Do Drop In Again. Crum departed and went first to Ziggy’s. Crum went next to the Do Dro p In Again, where he located the Defendant. He testified that he delivere d the m arijuana to the Defe ndant a nd then went back to 414 Stringer S treet.

After Crum arrived, Carl Sanders , Carla Sanders, and Ms. King left the home, leaving Crum alone with the children to watch movies. Crum testified that the victim and one of the boys fell asleep in the living room while watching the movies. He further testified that the Defendant arrived at 414 Stringer Street at appro ximate ly 1:30 or 2:00 a.m. Crum stated that he put the children to bed when the Defendant arrived and that he placed the sleeping victim, who was clothed and w rappe d in a co mforte r, on on e of the two twin beds in the bedroom where s he norm ally slept with h er moth er.

Crum described the Defendant as “[d]runk . . . [w]obbling, slurring when he was talking . . . [a]nd real sick, pale looking” when he arrived at the house. Crum testified that upon arriving, the Defendant went into the kitchen, made a sandwich, ate it, “thre w up,” m ade a phon e call, 7 and the n went into the bathroom. While the Defendant was in the bathroom, Crum sat back down and began to watch a movie. Crum testified that when the Defendant emerged from

7 Crum testified that he could not remember whether the Defendant made one or two phone calls.

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the bathroom, the Defendant stretched and told Crum that he wa s goin g to go lie down. The D efenda nt went into the same room where the victim was sleeping, and Crum sta ted that he ass umed h e “went in there to pass out” on the oth er twin bed, which was empty. While watching the movie, Crum heard “two little bumps, but . . . really didn’t think nothing [sic] about it.” On cross-examination, he admitted that the bum ps co uld have been a car door shutting beca use he he ard the bum ps sho rtly before D ye and G addis arr ived.

Appr oxima tely forty-five minutes to an hour later, according to C rum, Dye and Gaddis arrived back at 414 Stringer Street. Dye testified that when they arrived, Crum was acting as he normally did. He was “mellowed out, he was calm, he was wa tching T V and s mokin g a joint.” 8 Dye and Gaddis joined Crum in the living room, where they all eng aged in con versa tion. Ap proxim ately fifteen to twenty minu tes afte r arriving , acco rding to Crum , Dye a sked where the victim was sleeping. Crum told he r that the victim a nd the Defe ndan t were s leepin g in the seco nd bed room.

Dye went to the bedroom door and attempted to open it, but could not do so because it was locked. She banged on the door, calling the Defendant, and when she got no response, she went into the kitchen to retrieve a k nife to try to open the door, which she was unable to do. Crum stated that he went to help her and wa s succe ssful in unlo cking the door with the knife.

8 Crum denied smoking marijuana inside the house.

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Once inside the room, Dye and Crum noticed that neither the Defendant nor the victim w ere in the beds. On the bed where the victim had slept, there was what appeared to be a wet urine stain,9 and th e bed clothe s were in disarray. Dye testified that C rum lo oked unde r the be dcloth es for th e victim, and when “[h ]e shook the cove rs . . . , [the victim’s] clo thing . . . fell out into the floor . . . . [I]t was her top and shorts and her panties was [sic] still in the shorts.” In addition, beige men ’s pan ts con taining the De fenda nt’s wallet were later found betwe en a tw in bed and the dresser, which sat between the two twin beds in Dye’s room, and a pair of red men’s underwear, which apparently was not noticed initially, was later found at the foot of the bed where the victim had slept. The owner of the underwear was never identified.10

Dye walked across the room and opened the door to the utility room, which was adjacent to the bedroom. On the floor of the utility room were the Defendant and the victim. Both were nude.11 The Defendant was lying on his back, and the victim was lying on her stomach a few inches away with her head closes t to his feet. According to Dye, the victim “was purple,” he r “mouth was alre ady blue ,”

9 A Federal Bureau of Investigations (FBI) agent testified that “urine could potentially be present in [the] stained areas” of the sheet. The tests run by the FBI did not conclusively determine that the stain was urine, and assuming the stain was urine, the testing done did not match the stain with any particular person.

Furthermore, the FBI tested the sheet for seminal fluid. Danny Gaddis, who testified that he had engaged in sexual intercourse with Dye on the bed, was included as a potential donor. The Defendant, however, was not mentioned as a potential donor for the fluid. 10 The police collected the beige pants and the underwear four days after the crime. Both Gaddis and Crum denied owning the underwear. Although Sheila Sanders King pointed out the underwear to police as possibly belonging to the Defendant, King, who often washed the Defendant’s clothes during the time that he lived at her home, stated that she had never actually seen the underwear in the possession of the Defendant. 11 At trial, David Ware, the Defendant’s half-brother, testified that it was common for the Defendant to sleep nude after returning home inebriated at night.

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and her body was cool or cold to the touch.12 Dye kicked the Defendant several times, bu t he did no t respon d or mo ve.

Gaddis, upon hearing Dye’s reaction to the scene, rushed into the room and scooped up the victim. He and Dye rushed out of the house with the child. As they left, acco rding to Gaddis, they saw Carl Sanders “come out of the m iddle of nowhere” on the sidewalk leading to the house. Sa nders grabb ed the victim’s arm and released it when Dye and G addis told him th ey were in a hu rry.13 Dye and Gaddis jumped into their car and sped the child to the emergency room of a nea rby ho spital.

At the hospital, according to Dr. Susan Hayes, the eme rgency room doctor, the victim w as already “blue fro m lack of oxyg en.” She ha d no pulse o r heart rate. She was intubated in an attempt to induce breathing. Dr. Hayes testified that when she intubated the victim, the child was very limber, and there were no signs of rigor m ortis. After all atte mpts to resuscita te the victim failed, the victim was pro nounc ed dea d at 3:24 a .m.

Dye then requested that D r. Hayes check the victim for signs of sexual abuse. Dr. Hayes complied. She stated at trial, “[H]er vagina was torn, her rectum was torn . It was the m ost horrible thing I’d ever seen.” The child was also bruised on her labia, around her rectum, and on her upper thighs. Although there was not a large amount of blood on the child, there were indicia of internal

12 Gaddis testified that the victim was “cold.”

13 Carl Sanders testified that when he touched the victim, she “wasn’t cold, but she was cool.”

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bleeding. Dr. Hayes testified that the injuries to the child were consistent with the results of a rape, and more specifically, penetration by an adult male’s penis. Howeve r, Dr. Hayes also testified that she did not do a thorough examination of the child because she feared she might disturb evidence and interfere with the medical examiner’s job.

Crum testified that a fter Dye a nd Ga ddis dep arted 41 4 Stringe r Street with the victim, he dialed Carla Sander’s number because it was the only number which came to his mind at the time, and he then immediately ran to Carla’s house and banged on the door, telling Carla to call 911 “because Paul Ware killed Lindsay Green.” Crum testified that he next left in his car to find Dye, Gaddis, and the victim b ecaus e he be lieved that D ye and G addis ha d left the house on foot. Howeve r, he soon realized that they had left in a car and decided instead to return to 414 Strin ger Stree t.

At the house, Crum found Carl Sanders and the Defendant, who was “standing there in a daze, like he didn ’t know wh at was g oing on .” Accord ing to Crum, the Defendant was wearing a different pair of pants from those that he wore when he had arrived at the house earlier in the evening. Crum also testified that the Defendant had “a couple drops of blood on him . . . like somebody took a pin or something and jabbed him once or twice around his face . . . .” Crum soon w ent bac k outside to wait for the police to a rrive.

Officer Choquette of the Chattanooga Police Department testified that he and his partner, Office r Bake r, were called to Strin ger S treet in th e early morning hours of Octob er 1, 199 4. He tes tified that he s aw a wh ite male, whom he later

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determined to be Paul Crum, standing on the corner of Stringer Street. He stated that he aske d Crum , who wa s “shakin g unco ntrollably,” 14 whether Crum had called the police , to which C rum an swered , “No.” Choq uette further testified that when he later asked Carla Sanders whether she had called 911, she also denied having c alled. Ch oquette then de parted.

After searching the block for the correct house, Choquette arrived at 414 Stringer Street and again met Crum, who emerged from the home as the officers arrived. At this point, according to Choquette, Crum, still “shaking uncon trollably,” either asked whether “the baby was dead” or told the officers that the child was dead. Baker stated that Crum in itially told the officers that the victim “had fallen and that she looked dead.” Crum also explained that the child had been taken to the h ospita l. Crum told the office rs that “he n eeded [them] to go in and see if [they could] find [the Defendant].” According to Choquette, Crum informed them that the Defendant “had run around to the back of the house and was on his w ay to W hitwell.”

The officers went into the home and found the Defendant in the laun dry room lying in a pile of clothe s wea ring wh at Ch oque tte belie ved wa s eithe r a pair of jeans or possibly some sort of pants and no shirt. Choquette testified that after waking him up, the officers handcuffed the “very drunk” Defendant, who “started asking what w as go ing on .” Upo n bein g told that the officers were ta king h im to the police statio n, the De fendan t “just started go ing off cus sing and stuff.” Despite Crum’s testimony that the “officers found [the Defen dant] hiding” in the

14 Officer Baker testified that Crum “seemed visibly disturbed” and that he “seemed to be very agitated, nervous, almost scared.”

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laundry room and tha t the Defe ndant re sisted arre st, 15 Choquette maintained that the Defendant did not res ist arrest, but rath er sim ply nee ded a ssista nce to walk out of the hous e becaus e he was “sta ggering.”

Officer Baker, who transported the Defe ndant to the police station, testified that during the ride, the Defendant alternated between acting passively and becoming angry and belligerent. He testified that at one point, while at the police station, the Defendant “lunged forward at me out of the chair and I had to use both hand s to sto p him . . . and kin d of pu shed him back down in to the cha ir.” Baker described the Defendant’s appearance as follows:

I recall h e had on a, I b elieve it w as a w hite sh irt, a light colored shirt, and there were two, there were, I don’t remember exactly how many spots but there were some red spots on it that appeared to be blood. 16 . . .[H]e had on dark colo red pan ts. Other than that, . . . he was dish eveled. H e looked like he wa s intoxicate d.

At the police station, the Defendant submitted to blood alcohol level testing at approxima tely 1:30 in the aftern oon on Octob er 1, 199 4, and the tests indicated that approximately ten and a half hours after the victim was transported to the hospital, the Defendant had a blood a lcohol level of .04 perce nt. Dr. Cleland Blake, a medical expert at trial, estimated that this meant the Defendant would have had a blood alcohol level of approximately .20 or .21 percent eleven

15 Crum stated, “[H]e was just stiff as a board, wouldn’t move.”

16 In testing done on the shirt by the F.B.I., a small amount of human blood was found in some of the stains on the shirt. However, the F.B.I. was unable to develop a conclusive profile of the donor of the blood either because “there was insufficient DNA present or it was too degraded to make a determination as to who the potential source of that human blood was.”

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hours earlier. 17 Detective Michael Mathis of the Chattanooga Police Department testified at trial that he spoke with the Defendant at the police station on the night of the crime. According to Mathis, after being advised of his rights, the Defendant stated, “I wa s drunk and I don ’t remem ber anyth ing.”

At trial, Dr. Frank King, the medical examiner, presented evidence accumulated during the postmortem examination of the victim. He reported that the cause of death was mechanical asphyxia, meaning that the victim was “unab le to breath e due to a mec hanica l interferenc e in norm al breath ing.” In addition to numerous other injuries which the medical examiner described and explained in detail, the victim sustained a contusion on the small of her back which was “consiste nt with that part of [her] body pressing against a broad or flat surface .” King explained that “[t]he only wa y for this to happen is for that part of the back to be up against so mething w ith some pre ssure app lied.”

Also significa nt to the issues in this case were certain hairs found on and inside the child’s body. Du ring the autops y, Dr. King recove red a re ddish hair 18 which was s tuck to the victim ’s lip, a da rk brow n bod y hair w hich w as “pa rtly touching . . . the mucosa of the rectum and partly touch ing the sk in of the an us,” and a reddish pubic hair from the victim’s pharynx. With regard to the dark brown hair, he tes tified,

It would take direct contact and a little pressure applied to get that hair to stick to the mucosal lining in the rectum. . . . Any handling of the body, moving of the body from one place to another,

17 Blake explained that his estimation was based on the average rate at which a person metabolizes alcohol, but also emphasized that different people metabolize alcohol at sometimes widely varying rates. 18 The Defendant was characterized as having red or auburn hair.

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examination of the body by a person or persons could potentially be source s of conta mination to supply lo ose ha ir . . . .

Furthermore, Dr. King testified that the pubic hair found in the victim’s pharynx was highly unus ual. He ex plaine d that a “norm al, brea thing, livin g pers on wo uld . . . not [be expected] to tolerate a hair in this location” because any intrusio n into this area w ould trigge r a coug h reflex.

Dr. King te stified th at rigor m ortis “tends to start showing up first in the area of the jaw, in the area of the small m uscles of the extrem ities.” With regard to the victim, he stated, “[G]iven her size, her lack of clothing and temperature where she was found, . . . I cou ld estima te maybe sh e had bee n dead on e to two hours or less. I think that certainly after . . . two to four hours she . . . sh ould c ertainly have some rigor mortis developing in her jaw muscles,” which could be detected by an em ergenc y room doctor.

Dr. Cleland Blake, a defense witness who reviewed the data and evidence collected in the case, reached a slightly different conclusion regarding the time of death. He testified that the first change in the postmortem period is livor mortis, or settling. He explained,

That means if a body is laying o n its ba ck, blo od ten ds to s ettle downward so that the back would be more purplish or pink, depending on how long its [sic] been.

The longer the period of time, the more in tense p urple it gets on the deep en d or lower part of the body. If the body is stomach or face down, then the purple or pink color would be on that side.

He further testified that

[t]he first time, the first period that livor [m ortis] wo uld be notice able in a white skin would be something upwards of two hours, an hour and a half to two hours , to see any deg ree of livor [mortis] for any

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person. Nobo dy could apprec iate it earlier tha n one h our. It may take as lo ng as tw o and a half hours to becom e appa rent.

In addition, Blake testified that based on the circumstances of the case,19 he would estimate that the child had been dead for three hours to be perceived as “cool.” He also stated that in order for her to be perceived as “cold,” she had to have been dead for “[a]t least two hours,” but he emphasized that he was being co nservative in his opinio n.

Blake fu rther testified that unde r the circum stance s,

[i]n a child, rigor [mortis] would not be apparent before two hours .

. . and if rigor [mortis] starts out, anything starts, has a starting po int, and it’s a matter of degree, it’s a matter of progression to the maximum stiffness that that body a nd that temp erature is capable of achieving. . . . [A]ny movement of the child, any picking up of the child, draping, twisting , handling , moving , transpo rt will begin to break that early rigor that has started, so it does not become notice able for a longer time. . . . So in transporting a child in a situation like this, rigor [mortis] may not be apparent at all until after three or more hours.

Finally, Blake testified that the victim “could very well have been deceased at the time” she was injured, depending upon whether she was “mopped off or cleaned up by the pathologist or the assistants.” He stated that he wo uld have expected to have seen more blood on her, even if she was deceased at the time of the sex ual assa ult.

19 The hypothetical posed to Dr. Blake was as follows:

[T]he ambient air temperature was 72 degrees; there was carpet on the floor, as well as dirty clothes, it was a laundry room; [the victim was] presented at the hospital at 3:10; the child’s mother, the child’s mother’s boyfriend, both handled the child, both of them described her as cold; and she then presented at the hospital . . . after about a seven- or eight-minute automobile ride. The entire time, the mother testified that she was attempting CPR, cardiopulmonary resuscitation.

However, the actual temperature of the room in which the victim was found was never determined.

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Dr. King sta ted that he believed a ll injuries were inflicted on the victim before her death, but agreed that since the injuries occurred before death, he would have expected some bleeding consistent with the injuries. King testified that had the victim died before the injuries occurred, there would have been less bleeding .

Dr. King also noted some petechial hemorrhages inside the victim’s mouth, which he stated could be consistent with either asphyxia or low oxygen, or “aggressive resuscitation, placement of endotracheal tube.” However, he concluded, “[I]n this case, the petechial hemorrhages inside the upper inner gum by thems elves do n’t prove a nything. . . . It’s the o verall patte rn with the other injurie s present that make it mechanical asphyxia.” Having noted no evidence of oral rape during his examination of the victim, he concluded, “I cannot say there was o ral pen etration in this case.” Furthermore, no seminal fluid was found in or on the child’s body. Dr. King stated that the injuries could have been caused by the insertion of any blunt object20 and testified that he could not state with certainty that an adult male penis penetrated the child, although he indicated he believe d that the c hild had b een “bru tally raped.”

Special Agent Chris Hopkins of the FBI Hair and Fibers Unit testified about the hairs found at the crime scene and those fou nd in and on the victim’s body. He identified the hair which was found in the victim’s pharynx as a “red Caucasian pubic hair” which had been “naturally shed.” He also discussed “at least ten red Caucasian pubic hairs” which were taken from the sheet on the bed

20 Officers who investigated the crime scene photographed a red, plastic soda bottle in the bathroom sink which was essentially the same size and diameter as the penis of an adult male.

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where Crum testified he had placed the sleeping victim. Hopkins also described these h airs as be ing “natu rally shed.” He testified that pubic hairs a re natu rally shed “just from p utting on a nd off you r underw ear, taking [on and off] your clothes, maybe in the shower, those kind of activities ” and a greed that pu bic hairs may be naturally shed when one person rubs against another. The hairs on the sheet w ere significa nt beca use, as H opkins e xplained ,

[W]h en hair or fibers fa ll on a piece of eviden ce, they ten d not to stay there very long. . . . [I]f there is no activity in [a] bed, then you would expect the hairs to stay there because there is no reason for them to move around, but if someone is using that bed on a regular basis, . . . you w ouldn’t exp ect those hairs to sta y there.

He also sta ted, “I wo uld no t expec t to find th at ma ny pub ic hairs in [a] bed that has just been slept in.”

Hopkins concluded that all hairs, the hair from the victim’s pharynx and those from the sheet, we re “cons istent with originating fro m the [D ]efenda nt.” Howeve r, he also testified that hair comparison is “not a means of personal positive identification ,” and therefore he could not state conclusively whether the hairs belon ged to the De fenda nt. He did state that Carl Sanders, Danny Gaddis, and Paul Crum were each eliminated as being potential sourc es of th e pub ic hairs.

Hopkins also testified that the hair found on the victim’s lip was red in color and was likely a chest hair. He stated that the hair removed from th e victim ’s anus was a brown Cauc asian body hair and therefore was “not suitable for comparison.” He explained,

The only two regions, the only two types of hairs that are suitable for comparison purpos es are . . . head hairs a nd pu bic hairs. . . . Hairs, other hairs than head hairs and pubic hairs, these body a rea hairs

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or hairs on your arms or your legs, they tend to look like other peop le’s hair, so there’s not a significant association that can be made when c ompa ring those hairs.

Another perple xing bit of evidence was presented at trial by Special Agent Keith Howland of the FBI. He testified that human blood was found on a bean bag ch air in the laun dry room . Howlan d stated,

I identified the huma n blood on [the ch air] and had DNA profiles developed, but at that time I could not draw a con clusion.

Subse quent to my transfer from the laboratory, additional samples of known standards were sent in and I understand that some comparisons were made to an individual named [Carl] Sanders, but I did not perform those DNA tests.21

In addition, Mike Taylor, the officer who videotaped the crime scene in the early morning h ours o f Octo ber 1, 1 994, te stified a bout a dark s tain 22 on the bedspread in the master bedroom, which also appeared on the videotape of the crime scene that was presented to the jury. This stain was never tested.

Other eviden ce pre sente d at trial c once rned P aul Cr um’s background and behavior near the time of the crime. Crum testified that as a child, he was sexually, men tally, and physica lly abus ed by h is fathe r. He a lso sta ted tha t in September of 1994, he told the Defendant, whom he had known as a friend, that he “was wanting to receive [psychiatric] help because I didn’t ever want to have the feeling or even think about [sexually abusing] my kids.” 23 He testified , “I just,

21 No further testimony regarding this evidence was offered at trial.

22 The attorney examining Taylor characterized it as being “dark red-brown” in color, but Taylor simply stated that it “just appeared to be a stain.” 23 At the time of the trial, Crum and Carla Sanders, his girlfriend, had two young children who lived with their mother at Carl Sander’s home. Crum had also fathered a daughter with another woman; the daughter lived with her mother. Crum was living out of his car and staying periodically with friends and family.

19

I told [the Defendant] that I was real scared that as I got older, the thoughts and all that, you know, probably be, you know, wanting to do to my kids, and . . . . I just didn’t want to have that feeling or though t.” He testified that shortly a fter this crime, he sought psychiatric help and checked himself into a treatment facility, where he s tayed very briefly.

W ilma Jean Pack, from whom Crum had once rented a room, t estified about artwork done by Crum which Crum had given her eleven year old son. The drawings contained images of skulls and skeletons. Pack also testified that Crum once showed her son a picture in a magazine of Disne y chara cters e ngag ing in sex. Crum admitted to having done s o, but exp lained tha t he did no t intend to show the child that particular picture; he stated that the Disney picture appeared at the bottom of a page in a tattoo magazine which he was showing the boy. Crum also admitted to having smoked marijuana with the boy, but he claimed that he did so on ly after the ch ild’s paren ts had gr anted h im perm ission to sm oke with the child.

Finally, both David Ware, the Defendant’s half-brother, and his wife, Carol Ware, testified that Crum had visited their home on October 1 , 1994, the day following the crime . David W are testified that Crum was “fidgety,” and Carol Wa re stated that Crum was “walking fun ny.” She stated, “H e was very prote ctive of his private a rea. He w as stiff legge d.” Both David and Carol Ware testified that Crum “had his hands in his pants adjusting himself quite often,” as though he was experien cing som e irritation in his c rotch are a.

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I. SUFFICIENCY OF THE EVIDENCE The Defendant first argues that the eviden ce is insufficient to support the jury’s finding that he was guilty of felony murder and rape of a child. The Defendant argues that the evidence presented at trial showed tha t “Paul Crum . . . had far more of an opportunity to commit these crimes because it was uncontroverted that he was with [the victim] from 10:45 p.m. until she was found by her mo ther sho rtly before 3 :00 a.m .” The Defend ant po ints to s pecific evidence introduced at trial to support his assertion, including, among other evidence, the testimony by Dr. Cleland Blake regarding the time of death of the victim, the failure o f investigato rs to test the stain on the master b ed, the failure of investigators to examine Carl Sanders and Paul Crum for evidence imm ediate ly after the crime, the lack of evidence on the Defendant’s body, the brown hair fou nd ins ide the victim’s rectum, and Crum’s admission that he feared he wou ld sexua lly abuse h is own ch ildren.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[findings]

of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to supp ort the finding by the trier of fact beyond a reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all factual issues ra ised by th e evidence, are resolve d by the trier of fac t, not this Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 197 3)). Nor may th is Court re-weigh or re-evalua te the evide nce in the record b elow. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978)).

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A jury verdict ap proved b y the trial judg e accre dits the State’s witnesses and resolves all conflicts in favor o f the State . Id. (citing State v. Williams, 657 S.W.2d 405, 4 10 (T enn. 1 983)) . On ap peal, the State is entitled to the strongest legitimate view of the evidence and all inferences therefrom . State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burd en in this Court of illustrating why the evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. McBee v. State, 372 S.W.2d 173, 176 (Tenn . 1963); see also Evans, 838 S.W.2d at 191 (citing Grace, 493 S.W .2d at 476 ); Tug gle, 639 S.W.2d at 914.

In the case at bar, a great deal of circumstantial evidence was introduced.

Desp ite some evidence suggesting that the Defendant may not have committed the crime, there was clearly substantial evidence presented at trial indicating that the Defendant did commit the crime: Most obvious is evidence presented that the Defendant and the victim were discovered nude together in a room locked from the inside. Ad ditionally, although the two medical experts who testified at trial differed in their estimations of the victim’s time of death, Dr. King concluded that the victim had been dead “one to two hours or less,” a time period which corresponds with the time that the Defendant was present in the home. Fina lly, an FBI agent testified based on hair comparison that hair found on the bed sheet where the victim slept and the hair inside the victim’s pharynx all “were consistent with origina ting from the Defe ndant.”

This is but a small sampling of the evide nce pre sented at trial which p oints to the Defe ndan t as the perpe trator. It is s imply n ot within our purview to weigh

22

this evidence against other evidence favorable to the Defendant. We must instead give grea t deference to the findings of the jury. Therefore, viewing the evidence in light most favorable to the prosecution, we conclude that there was sufficie nt evide nce fro m wh ich a re ason able person cou ld have determined the Defen dant’s gu ilt, and we th erefore a ffirm the co nclusion of the jury.

II. BRADY VIOLATION

The Defendant next contends that the State withheld from the defense exculpatory information, which resulted in an unfair trial. He argues that the State did not disclose before trial (1) “the color and description of [the] hair found in the victim’s anus”; (2) the discovery of Car l Sand ers’s b lood o n the D efend ant’s p ubic hair; (3) a statement made by Paul Crum to Officer Baker tha t he had hea rd a cry on the night of the mu rder; and (4) a state ment m ade by Jim my Gre en, the victim’s father, to Assistant District Attorney Lee Davis that he had made phone calls to 414 Stringer Street between 9:00 and 10:00 p.m. on the night of the murder which were never answered.

In Brady v. Maryland, the United States Supreme Court established the prose cution ’s duty to furnish the accused with exculpatory evidence that is material to either the accused’s guilt or innocence or to the potential punishment which may be imposed. 373 U.S. 83 (1963). In order to establish a due process violation under Brady v. Maryland, a defendant must demonstrate the following:

1. The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the inform ation whethe r requested o r not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and 4. The inform ation m ust ha ve bee n ma terial.

23

State v. Edg in, 902 S.W .2d 387, 389 (Tenn. 199 5).

In order to establish that exculpatory evidence is “material,” a defendant must show that “the favorable evidence could reasonably be taken to put the whole case in such a d ifferent light as to unde rmine c onfiden ce in the ve rdict.” Kyles v. Whitley, 514 U.S. 419, 435 (19 95); see also Edgin , 902 S.W.2d at 390. There must be a “‘reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Edgin , 902 S.W.2d at 390 (quoting Kyles, 514 U.S. at 435). The Court in Kyles urged that the cumulative effect of the suppressed evidence be considered to determine materiality. 514 U.S. at 436.

The State is not required to disclose information that the accused already possesses or is able to o btain, State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992), or information which is not possessed by or under the control of the pros ecution or another gove rnmen tal agenc y. Id. Under Brady, the individual prosecutor has a duty to learn of any favo rable evid ence k nown to others acting on the government’s behalf in the case, including the police. Kyles, 514 U.S. at 437.

With regard to the hair found in the victim’s rectum, the Defendant argues that

the defense was never notified of any examination by the FBI of the brown hair removed from the victim’s a nus. Accordingly Defendant Wa re was precluded from submitting the hair along with a known sam ple of Paul Cru m’s hair w hich w as alre ady in th e State ’s possession for a comparison by an independent laboratory. The defense was also precluded from obtaining a hair expert of its own for testimo ny in the ins tant trial . . . .

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At trial, but outsid e the he aring of the jury, defense coun sel Ha llie McFadden stated, “T his [hair] is something that’s listed in their inventories, but we haven’t ever seen it. We haven’t seen a photograph of it. We don’t know anything about this hair except that it was collected from the anal orifice.” The State replied tha t the hair wa s in the possession of a hair analyst from the FBI who was to be a witness in the trial, that the State had provided the defen se with results from all tests run by the T ennes see Bu reau of In vestigation and the FBI, that this particular hair was not tested because it was deemed unsuitable for comparison by the FBI, 24 and that the evidence receipt of Detective Mike Mathis, which had been in the possession of defense counsel for approxima tely one year, stated that a h air was collected from the victim’s anal orifice on October 1, 1994 during the autopsy of the victim.25

W e canno t agree that there was a Brady violation in this instance. The defense received informatio n that a hair was recovered from the victim’s anal area prior to trial. Not only was the hair listed “in . . . inventories,” as defense counsel admitted, but the defense also received a copy of the test results from the FB I which ind icate that no testing was done o n the ha ir. Moreove r, despite knowledge of the existence o f the hair, the defense never made any pretrial request to have th e hair inde pende ntly tested. W e conc lude that th e State fulfilled its obligation by furnishing information about the hair to the defense

24 See discussion infra of issue regarding admissibility of DNA evidence.

25 The evidence receipt is included in the record, but there is no indication on the receipt as to precisely when it was turned over to the defense.

25

before trial. Certainly, the State ma y not now be blamed for the failure of the defense to request independent testing or explore the issue further before trial.

Furthermore, even assuming that a Brady violation occurred concerning the hair, we are unc onvinced tha t the hair constitutes exc ulpatory evidence. The hair was deemed unsuitable for testing and as such, was never linked to any one individu al. Additionally, even if the hair had been matched to any one person, the uncleanliness of the home where the victim’s body was found greatly reduces the probative value of evidence that a hair was found inside the victim’s rectum. Photogra phs and testimony presented at trial indicate that the house at 414 Stringer Street was unkempt and unclean. There were many items strewn about the floors, dirty dishes throughout the house, and dirty clothes on the laun dry room floor. Because it is evident that the floors had not been recently vacuumed at the time o f the crim e, it is quite conceivab le that hair from a nu mber of visitors to the home was present on the floors of the hom e. It is also q uite co nceiva ble that a hair from the floor of the home could have become embedded in the victim’s orifice during the course of a brutal rape or even possibly during the transpo rt of her bo dy after the crime.

The Defenda nt also alleges three other Brady violations which we conclude are unsup ported b y the reco rd. He first argues that the State did not notify the defense that the blood of Carl S ande rs was found on the Defe ndan t’s pub ic hair. The only evidence of this allegation in the record is an affidavit by David Ross, Ph.D., filed on Sep tembe r 10, 199 7, in which Ross s tates,

On April 10, 1997, I was present at a lecture given by Assistant Hamilton County D istrict Attorney, Lee Davis, lead prosecutor in the case against Paul William Ware, to my Psychology and Law class

26

from the University of Tennessee . . . . Durin g the le cture L ee Da vis stated that a blood sam ple found on a pubic hair of Pa ul Wa re belonged to Car l Sand ers, fath er of S heila Sanders, in whose home the homicide of Lindsey Green allegedly took place.

The Defendant also alleges that Paul Crum made a statement to Officer Baker shortly after the crime that, wh ile at 414 Stringer S treet, he heard a cry on the night that the victim was killed. However, in subsequent statements and testimony, neithe r Crum nor Ba ker m ention ed this fact. Fin ally, the Defendant contends that District Attorney Davis had a conversation with Jimmy Green, the victim’s father, in which Green stated that he m ay have made unanswered phone calls to 414 Stringer Street on the night of the murder. However, this fact was mentioned only briefly during the trial out of the hearing of the jury by Davis, who stated that after further convers ation with Green, Green concluded that he did not feel “comfortable s aying [under oath] that he remember[ed] when he made a phone ca ll or didn’t make a p hone call.” Gree n was neve r called to testify.

W e are unconvinced that the foregoing evidence is exculpatory; nor can we conc lude th at this e videnc e is ma terial. T herefo re, this issue is without merit.

III. ADMISSIBILITY OF DNA EVIDENCE In his third assignment of error, the Defendant argues that the trial court impro perly allowed testimo ny regarding m itochondrial deoxyribonucleic (mtDNA) analysis, which re sulted in a n unfair trial. In allowing the evidence, the trial court denied a motion to suppress filed by the Defendant, who argued that the process was not sufficiently scientifically reliable to be used in court. No actual admis sibility hearing was conducted before trial. The court entertained testimony regarding mitochondrial DNA evidence both at trial and at the hearing on the

27

motion for new trial. The DNA evidenc e prese nted at trial co ncerne d the res ults of analysis by the FB I of hairs from the ca se, specifically, the hair found in the victim’s pharynx and hair from the bed sheet where Crum testified he had placed the sleeping victim.

The legislature has provided that the results of “DN A analysis” are gene rally admissible in evidence without the necessity of expert testimony proving that DNA eviden ce is trustworthy and reliable, provided that the offered testimony comp orts with the T ennes see Ru les of Evide nce. Te nn. Co de Ann . § 24-7-117. “DNA analysis” is defined in the statute as “the process through which deoxyrib onuc leic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes .” Id.

As a prelimin ary ma tter, we note that this is app arently the first c ase in which the admissibility of mitochondrial DNA evidence has been presented as an issue in the appellate courts in Tennessee. Mitochondrial DNA ana lysis is a method of DNA testing which was apparently first implemented in the FBI Laboratory in June of 1996.26 It is based on the Polymerase Chain Reaction (PCR) method of DNA analysis, which is routin ely use d in lab orator ies an d wide ly accepted in courts across the country as scientifically reliable.27 The database for comparison of results of the mitochondrial testing is still being developed. At

26 The trial in this case took place in late August and early September of 1996.

27 The PCR method of DNA analysis has been held to be trustworthy, reliable and admissible into evidence pursuant to Tennessee Code Annotated § 24-7-117(b)(1). State v. Begley, 956 S.W. 2d 471, 477-78 (Tenn. 1997).

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the time of the trial, according to the testimony of Special Agent Wilson of the FBI, the database utilized by the FBI consisted of 742 individuals, 319 “of African desce nt” and 4 23 “of Eu ropean or Cau casian d escen t.”

Mitochondrial DNA testing was performed on certain hairs which we re recovered as evidence. Agent Wilson testified that the hair recovered from the victim’s throat and a hair from the bed sheet w ere com pared w ith saliva from the Defen dant. Analysis of the samples determined that all three samples shared a common sequence. Testing also determined that the sequence in the three samp les did no t match that of bloo d taken from the victim.

On cross-examination, Wilson clarified the findings; he explained that the two ha irs sha red 60 0 bas es, wh ile the victim’s blood sample shared 593 bases with the other samples. He stated that “[t]he average number of differences between any two Caucasian individuals is approximately six.” While he maintained that the sam ple hairs we re cons istent with h aving orig inated w ith the Defen dant, he also stated th at the tests could n ot show that the sample h airs belong ed to the D efenda nt to the exc lusion of a ll others.

In reaching his conclusions, Wilson did not assign a frequency rate to the results of the mtDNA tests which were performed in this case, stating instead only that the seque nce had n ot before been observed in the FBI’s database of 742 ind ividuals. W ilson testified ,

All I’m saying is we have a database of a certa in size, a nd this particular sequence has not been observed before.

I am not saying that it’s a partic ular freq uenc y, one o ver this or that, because it cannot be expressed that way because the database is not large enough at the present, in its present form,

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present size to be able to assign a frequency, you know, like one percent or wh atever.

This . . . event would have to be observed many more times in order to a ssign it a freq uency, s o what w e do is sta te a fact.

By affidavit filed June 30, 1997, Agent Wilson indicated that FBI protocol for mtDNA testing had changed since the time of the trial in this case. He stated that although mtDNA analysis was initially limited to head and pubic hairs, mtDNA analysis h as since been e xpande d to include testing of hairs which are typically “not considere d suitable for significan t microsc opic com parison ,” including, in certain instances , body hairs. However, he also stated that “two factors contributed to the decision on which ha irs to type in the Ware case: the probative value o f the ha irs, and the su itability for micro scopic c ompa rison.” Wilso n explaine d,

A crucial aspect of these investigations . . . is the question of how probative the evidence may be. . . . In the Wa re case, information provided to the FBI Laboratory indicated that the victim . . . was found naked in an unkempt laundry room floor. Her body was then moved by family mem bers and medical pe rsonnel prior to au topsy.

According ly, the finding of extraneous hairs would be expected to be found on an unk empt laun dry room floor. However, the finding of a pubic hair in the victim ’s throat ca n be a ttributed to con tact tha t is not merely casual. Moreover, the fact that the cause of death was asphyxiation adds add itional probative value to the discovery of the foreign pubic hair in the throat. . . . [The] finding [of pubic hairs on the sheet] is probative because the victim was . . . asleep on the bed prior to the attack.28

On August 28 , 1996, during the trial, the defense filed an affidavit by D r.

William M. Shield s, a gene ticist, who sta ted,

28 Wilson mistakenly stated in his affidavit that the brown body hair was found “on the victim’s buttocks.” He also mistakenly stated, “[H]airs from Ware would not be expected to be found in the home where the attack took place, because Ware did not live there and was not a regular visitor.”

30

On the basis of discovery, examination of the protocol, and publications listed in th at proto col, it is my opinion that mitochondrial DNA typing as proposed by the Federal Bureau of Investigation, is not yet sufficiently reliable to be scientifically reliable. The major problem is that critical pieces of the validatio n proce ss have yet to be done or have been done with insufficient sample sizes to be statistically reliable.

Although Shields did not testify at trial, 29 he did testify at the hearing on the motion for new trial, where he reiterated and expanded the sta teme nts m ade in his affidavit. Shie lds stated that at the tim e of the hearin g, he w as a sc holar in residence at the University of Virginia law school, where he guest-lectured and co-taught classes in advanced evidence, “in particular, [concerning] the issues surrounding scientific evidence, both in toxic torts and DNA typing.” He also stated that he had “been involved since 1990 in exploring the use of DNA typing in forensic situations.”

He further testified that at the time of the hearing, he was consulting in a case in federal court in the Ninth Circuit which involved the forensic use of mtDNA.30 He tes tified that h e had read affidavits by FBI agen ts which were submitted in the Ninth Circuit case and compared their findings to those of the

29 Shields testified that he was available to testify at the trial and in fact listened to most of the testimony presented at trial. Defense counsel testified at the hearing on the motion for new trial that Shields was not called as a witness because:

[W]e made a legal decision that by the affidavit which Dr. Shields submitted, and that based on Daubert, that the State had not made their threshold showing of meeting the . . . test of validation [for admissibility]. . . . When we submitted that affidavit, we believe [sic]

that the State had an obligation to respond to that. The Court ruled against us on that. . . . [T]he DNA evidence was coming in. . . . We stood on our legal position for appellate purposes, so we had no obligation to put that evidence before the jury.

30 According to the testimony of Dr. Shields, the Ninth Circuit case took place after the case sub judice.

31

FBI agen ts who testified in the trial in the case sub judice. He concluded that the FBI pro tocol differe d in the two cases:

[The agent testifying in the N inth Cir cuit ca se] sa ys that th ey sho uld do a mitochondrial DNA analysis on an unassociated hair. Agent Wilson [who testified in the prese nt cas e] state d over and o ver ag ain that their protoc ol was no t to do suc h analys is. . . .31 What [this]

indicated to me . . . is that it’s consistent with the notion that the protocol changes, depe nding upon how a chan ge in the pro tocol w ill help or hurt the prosecution.

In addition, Shields submitted as an exhibit to his testimony letters, which Shields stated had been published, from Dr. Frederic W hitehurst, a supe rvisory special agent o f the FBI. The letters outline “various violations, Brady violations, and apparent and o bvious errors in testim ony by spec ial age nts in the FBI la b.” He also testified about an article published in 1993 in the International Journal of Legal Medicine entitled, “The Application of Mitochondrial DNA Typing to the Study of White Caucasian Genetic Identification.” He testified that the article noted that in a sample of one hundred people, “somewhere between 12 and 20 pairs actu ally match ed, and . . . there were actua lly four ind ividuals [includ ed in the 12 to 20 pairs] in that database that matched each other, all four.” He conclud ed,

What you’re looking at is a piece of DNA that allows one to discrimin ate amongst individuals, but until there’s a database that allows you to look at how frequently these kinds of m atches are going to occ ur, to talk about identity is certain ly misle ading . . . . This database shows that you can’t get identity out of this particular kind of analysis.

Shields also testified that the International Journal of Legal Medicine was one of the publications in which the FBI attempted to legitimate their studies on

31 In this case, analysis of “unassociated hairs” would have included analysis of the brown body hair found in the victim’s rectum.

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mtDNA analysis. He testified that he had difficulty locating the journal and was not able to obta in a co py of the article until the day be fore the trial bec ause only twenty-five libraries in the world su bscribe to the journa l. He stated, “[i]f you’re going to publish something in a peer review journal, it should be a journal that has wide circulation. The average medical journal or the average biological journa l, the average genetics journal is found in thousands of libraries.” He emphasized that the scientific community cannot evaluate a validation study that has been published in a journal which is not widely circulated.

Finally, Shields testified that the sample sizes against which tests were run by the FBI were in adequate and concluded that mtDNA analysis had not been adequ ately tested within the scientific community to qualify as reliable. He conclud ed,

The so-ca lled valid ation s tudies haven ’t been distributed widely enough, in my opinion, for there to be a, quote, significant number of [scientists w ith significan t expertis e who would agree that the forens ic use of mitochondrial DNA testing has n ot bee n scien tifically validate d]. I think that the re’s a sm all pool of individuals who even know how mitochondrial DNA is done, and an even sm aller pool who know how it’s presented in the courtroom.

Prior to the adoption of the Tennessee Ru les of E videnc e, cou rts in Tennessee generally followed the test which had been set forth in the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in analyzing the adm issibility of scientific evidence. The te st set forth in Frye was e ssen tially that s cientific evidence was admissible only if it had “gained general acceptance in the particular field in which it belong s.” Id. at 1014.

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In 1997 the Tennessee Supreme Court held that Tennessee’s adoption of Rules 702 and 703 as part of the Rules of Evidence superseded the general acceptance test set forth in Frye. McDaniel v. CSX Transp. Inc. 955 S.W.2d 257, 265 (Tenn . 1997). T ennes see Ru le of Evide nce 70 2, “Testim ony by ex perts,” states,

If scient ific, tech nical, or other sp ecialize d kno wledg e will subs tantially assist the trier of fact to unders tand the evidenc e or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, exp erienc e, trainin g, or ed ucatio n ma y testify in the form of a n opinion or otherw ise.

Tenn. R. Evid. 702. T ennesse e Rule of Evide nce 703, “B ases of opinion testimon y by expe rts,” states,

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the su bject, the facts or data need not be adm issible in evidence. The court shall disallow testimony in the form of an opin ion or infere nce if the u nderlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 7 03. As our su prem e cou rt stated in McDaniel, under these rules,

a trial court must determine whether the eviden ce will su bstan tially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness. The r ules to gethe r nece ssarily require a determination as to the scie ntific validity or reliab ility of the evidence.

Simp ly put, unles s the scie ntific eviden ce is valid, it will not substa ntially assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no requirement in the rule that it be ge nerally acc epted.

McDaniel, 955 S.W.2d at 265.

Finally, we note that “[i]n gen eral, questions reg arding the adm issibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court. The trial court’s ruling in this regard may only be

34

overturned if the discretion is arbitrarily exercised or abu sed.” Id. at 263-64 (citing State v. Ballard, 855 S.W .2d 557, 562 (Tenn. 199 3)).

W e first note that it is somewhat questionable whether the DNA testimony presented was such as to substantially assist the jury to determine a fact in issue. W e nevertheless conclude that the trial judge did not abus e his discre tion in admitting the results of the m itocho ndrial D NA te sts into eviden ce. At tria l, Wilson testified that “m itocho ndrial D NA is extens ively stud ied. . . . It’s very well understood and ch aracterize d.” He als o testified tha t mtDN A is “wide ly used” to “identify the remains of servicemen that have be en killed in V ietnam or Korea .” This testim ony ind icates that m itocho ndrial D NA analysis also meets the Frye standard of being generally accepted in its field.

Howeve r, even assuming that the DNA evidence was improperly admitted into evidence, we are convinced that the any error c aused by admission of the evidence was ha rmless . See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Regardless of its accura cy or inacc uracy, W ilson’s testim ony did n ot impa rt a substantial amount of discernible information to the jury. Absent a freque ncy rate or some similar interpretation of the test results, the testimony does not provide a strong b asis for sc ientific con clusion by a layperson. The only result that an individual untrained in the analysis of DNA could reach after hearing Wilson testify is that the common DNA sequence shared by the hairs tested and the Defe ndan t’s saliva had neve r before been noted in the 742 individuals that comprised the FBI’s then-current database. Moreover, other scientific evidence presented at trial which was m ore clearly interpreted for the jury (including testim ony by Hopk ins, the hair comparison expert), although also inconclusive,

35

points to the Defend ant as the don or of the hairs at issue . Thus , base d upo n all circumstances, we co nclud e that th is issue did no t result in revers ible error.

IV. ADM ISSIBIL ITY OF EVIDE NCE OF SA TAN IC W ORS HIP The Defendant next argues that the trial court erred by disallowing evidence that Paul Crum engaged in Satanic worship. Initially, we note that the trial court did allow both the State and the defense to introduce a number of examples of Paul Crum ’s artwork. The drawings and paintings contained images of what ap peared to be sku lls, skeleton s, the grim reaper, a dagger through a rose into a heart, a severed arm dripping with blood with a rose falling from the fingers of the han d, a burn ing cross , and de mons . Crum denied that any of the pictures were Satanic in nature and offered alternative explanations of the meaning of the pictures. Crum was also questioned about his appearance and dress at the time of the crime, and Crum admitted to wearing crosses and chains.

Witnesses testified out of the presence of the jury about Crum ’s intere st in Satan ic worship. Nan cy Egeland , whose bro ther is married to C rum’s sister, testified that Crum once told he r that he had s acrifice d a do g bec ause voices told him to do it. She also testified that while she and her h usband were visiting Crum ’s sister one evenin g, the g roup d ecide d to wa tch a vid eo ab out de vil worship. She stated that Crum walked past the room w here they we re watching the video and said to his sister, “Don’t be showing that to people and discussing me.” She also testified that on five or six different occasions , she had he ard Crum refer to a picture of Jesus as “dog” (“God” spelled backwards). In addition, she testified that Crum told her when the Defendant vomited on the night of the

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crime, “it was like a cool breeze, and it was like a dem on had left [Crum’s] body and entered [the D efendant’s] bod y because when [the Defendant] started puking, it was like . . . somebody was in there throwing it out his mouth.” Fina lly, she testified that C rum’s sis ter had o nce told h er that when Crum’s youngest child was born, “he was born with spinal meningitis, and . . . [Crum] gave Satan his soul so [th e child] wo uldn’t die; and that he had also gave [sic] [the child’s] soul to Satan . . . and that they were supposed to do an exorcism on him and he didn’t want it done because he was afraid if he did, then Satan would take [th e child].”

Amy Cook, a friend of Sheila Sanders King and Carla Sanders who handcrafted leather item s to sell, testified out of the p resenc e of the jury that Crum had approached her during the summer of 1994 about making a leather bracelet for him. She testified that he told her he had a ring bearing the number six and an ankle bra celet bea ring the nu mber s ix. He wanted a black bracelet also bearing the num ber six to co mplete the triad. Co ok testified, “I to ok it to mean it’s the mark of the beast, six-six-six . . . .” Cook also sta ted tha t Crum told her that “he liste ns to the dev il, [the devil] com es and tells him w hat to do.” According to Cook, Cru m claime d to “go[] by the laws o f Lucifer.”

The Defendant argues that he should have been allowed to further exp lore Crum ’s involve men t in Sata nic de vil worshiping for the purpose of further impeaching Crum ’s credibility and advanc ing the Defen dant’s theory that Crum was the perpetrator of the offense.

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The Defendant was able to bring to the jury’s attention substa ntial information about Crum ’s interest in Satanic wo rship and other q uestio nable character traits and a ctivities of the witness. The admission of additional evidence of a similar nature w as largely discretiona ry with the trial judge, and the trial judge’s decision concerning such matters should not be disturbed on appeal absent a clear abuse of that discretion. From our review of the record, we cannot conclude that the trial judge abus ed his discretion b y disallowing such further evidence.

V. BIAS BY THE TRIAL COURT The Defendant argues that the trial judg e dem onstra ted bia s aga inst him in favor of the State in the presence of the jury. He points to three b rief comm ents made b y the tria l judge during the trial to support this contention. Under Ten ness ee law , “[i]t is well-established that a trial judge has broad discretion in controlling the course and conduct of the trial, and that in exercising that discretion, he or she must be careful not to express any thought that might lead the jury to infer that the judge is in favor of or against the defendant in a criminal trial.” State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994) (citing State v. Caughron, 855 S.W.2d 526, 536 (Tenn. 199 3)). After a thorough examination of the record in the case sub judice, we are unable to agree that the trial judge demonstrated bias against the Defendant. We conclude that the trial judge acted appro priately within his discretion. Although we are unable to find any error on the part of the trial court, if any error was made, we are satisfied th at it was harmle ss. See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).

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VI. CUMULATIVE ERRORS

In his sixth claim of error, the Defendant insists that the cumulative effect of errors mad e at the trial level d eprive d him of a fair trial. He argues that “[t]he jury in the instan t case was never permitted to hear a plethora of evidence favora ble to the D efend ant.” V iewing the record as a whole, having evaluated each issue individually and collectively, we conclude that the Defendant was not denie d a fair tria l.

VII. SENTENCING

Rather than receiving the death penalty as requested by the State, the Defendant was sentenced to life without parole for the felony murder. The trial court later imposed concurrent twenty-five-year sentences for the rape convictions, to be served consecutively to the sentence of life without parole. The Defendant now challenges the imposition of consecutive sentences in his case.

When an accused challenges the length, range, or the manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption the determinations made by the trial court are correct. Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn . 1991).

In conducting a de novo review of a sentence, this Court must consider: (a)

the evidence, if any, received at the trial level and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and argum ents as to

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sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for reha bilitation or treatme nt. State v. S mith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.

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 findings of fact are adequately supported by the record, then we may not m odify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

W e first find that the trial judge in this case conducted on the record an analys is of the enhancing and mitigating factors and of the principles of sentencing, thereb y fulfilling h is role in the sentencing process. Our standard of review is thus de novo with a presumption that the determinations of the trial judge a re correc t.

In ordering consecutive sentences, the trial judge found that two factors under Tennessee Code Annotated § 40-35-115 applied in this case. He first determined that the Defendant is a “dangerous offender whose behavior indicated little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high.” Tenn. Co de Ann. § 4 0-35-115(4 ). He also found that factor (5) applied:

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The defend ant is con victed of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and vic tim . . . , the time s pan o f the de fenda nt’s undetected sexual activity, the nature and scope of the sexu al acts and the extent of the residual, physical and mental damage to the victim . . . .

Id. § 40-35-11 4(5).

Having carefully reviewed the record in this case, w e are do ubtful as to whether factor (5 ) is applicable. We believe that based on the language of the statute, the legislature intended that factor (5) should generally be reserved for cases involving ongoing sexual abuse . In the case at hand, there apparently was no consequential “time span of the defendant’s undetected sexual activity.” Based upon the evidence adduced at trial, the acts which warrant application of this factor lik ely occ urred within minutes of one another and certainly could not have been separated by more than an hour or two. There was no evidence of an ongoing sexual relationship between the Defendant and the victim. Therefore, standing alone , the ap plicatio n of fac tor (5) in the pre sent c ase w ould like ly not appea r to justify the im position o f consec utive sente nces.

If this factor does ap ply, it would seem to justify ordering the two twe nty-

five-year sentences to be served co nsecutive to each other, rather than concurrent with each other but consecutive to the sentence for murder. The legislature apparently intended this factor to authorize consecutive sentences for multip le child sex crimes. However, based upon the facts presented at trial concerning the crime itself, we have n o difficu lty in affirm ing the trial cou rt’s determination that the Defendant is a “dangerous offender.” Thus, considering

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that factor (5) was applied in conjunction with factor (4), we conclude that consecutive sentences were statutorily warranted in this case.

W e must also, ho wever, cons ider the man dates of our su preme co urt regarding conse cutive sen tences . Our sup reme c ourt has determ ined that “consecutive sentences cannot be imposed unless the term s reaso nably rela te to the severity of the offenses committed and are necessary in order to protect the public from furth er seriou s crimina l conduc t.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). As previously stated, we have reviewed the record and conclude that it supports the trial court’s decision. However, with regard to the factor of protecting society from further criminal acts by the offender, it may be argued that there can be no necessity to further protect society from an offender sentenced to life imprisonment without parole, and that consecutive sentencing would therefo re nev er satis fy this crite ria in su ch a ca se. W hile this argument certain ly bears logic,32 we observe that our supreme court has declined to give the claim merit, denying permission to appeal in several cases in which an additional sentence has be en orde red serve d cons ecutive to a senten ce of life imprisonment without pa role. See, e.g., State v. Robinson, 930 S.W.2d 78, 85 (Tenn. Crim. A pp. 199 5), perm. to appeal denied (Tenn . 1996); State v. Leon Barnett Collier, No 03C 01-960 2-CR -00072 , 1997 W L 9722 (Tenn . Crim. A pp., Knoxville, Jan. 13, 1 997), perm. to appeal denied (Tenn. 199 7); State v. Sam mie Lee Taylor, No. 02C 01-950 1-CR -00029 , 1996 W L 5809 97 (Te nn. Crim. App., Jackson, Oct. 10, 1996), perm. to appeal denied (Tenn. 1997). Furthermore, the supreme court has upheld running a sentence consecutive to a sentence of

32 The legislature has provided that a person sentenced to life without parole shall never be eligible to be released on parole. Tenn. Code Ann. § 40-35-501(h)(2).

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death. State v. Black, 815 S.W.2d 166, 191 (Tenn. 1991). Rather than attempting further analysis, we defer to the guidance of our supreme court and to the discretion of the trial judge and affirm the im position of conse cutive sentences in this case.

VIII. NEWLY DISCOVERED EVIDENCE Finally, the Defendant contends that the trial court erred by failing to declare a mistrial or halt jury deliberations for the newly discovered testimony of Donna Pickett. After closing arg uments a nd after the jury retired to b egin deliberations, the de fense cam e forth w ith a new witne ss, Don na Pick ett. Defense counsel Hank Hill received word from his office that Pickett had telephoned for the first time that morning. In open court, but outside the presence of the jury, the defense filed a motion to hear new evidence. The trial court denied the motion, bu t allowed the defe nse to prese rve the new testimony for the record at a later date.

On September 12, 1996, Donna Pickett testified for the record out of the presence of the jury and after completion of the trial. She explained that sh e is the D efend ant’s a unt by m arriag e and that he r husb and is also related to Car la Sanders and Sylvia Kaye Dye . Pickett stated that Cru m and C arla Sande rs visited her home on the day following the discovery of the victim’s body. She testified that while there, Crum proceeded to tell her and her husband the story of what happened on the night of the victim’s murder. According to Pickett, Crum claimed that after the Defendant went into the bedroom with the victim, he decided to che ck on the victim . Wh en Cr um w as un able to find her, he began search ing the house for her and for the Defendant, who had also disappeared

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from the bed room. C rum to ld Pickett that he then discovered the two in the laundry room and that when he opened the door to the room, th e Defe ndant, who was appa rently passed out, still maintained an erection. Crum told her that, not knowing what to do, he then went outside and retrieved Carl Sand ers from his truck.33 Crum claimed that when he and Sanders went back inside the house, Sanders picked up the victim and carried her to a light “to see he r because [they] knew something was wrong.” Crum said “that [Carl Sanders] looked at the baby and said, Sh e’s dead . He said , This ba by is dead . . . . He looked up at me and I looked at him and I said, We’ve got to put her back.” They put the child back as they found her. Then, Sanders went back to his truck while Crum sat on the porch “to figure out what [he was] going to do.” Dye and Gaddis arrived shortly afterwards, Crum went ba ck inside the hou se, and because Crum “didn’t know how to tell [Dye]” about the victim, the three of them “smoked a joint” together before Dye be gan to loo k for her ch ild. Accord ing to Pickett, Crum told her, “[I’m] sitting there with her and . . . I’m just starting to fall to pieces thinking, oh, my goodness, this is just unreal . . . .” Pickett explained that she did not offer her testimony earlier because she was not present at the trial and was unaware of what testimony had been presented. She also stated that her husband told her to “mind [her] ow n bus iness ” beca use if sh e bec ame involved in th e cas e, his whole fam ily would “hate” her.

W e first note that “[t]he decision to gra nt or deny a new trial on the basis of newly discovered evidence is a matter which rests within the sound discretion of the trial court.” State v. Goswick, 656 S.W.2d 355 (Tenn. 1983). Thus, our

33 Apparently, Sanders was inside his truck parked on the street in front of 414 Stringer Street. It is unclear from Pickett’s testimony why Sanders was there.

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standard of review is abuse of discretion . State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996). “In seeking a new trial based on newly discovered evidence, the defenda nt must first estab lish (1) re ason able d iligenc e in attempting to discover the evidence; (2) the ma teriality of the evidence; and (3) that the eviden ce wo uld likely change the re sult of the trial.” Id. (citing Goswick, 656 S.W .2d at 358-60 ). Moreover, “[i]t is true that newly discovered impeachment evidence will not constitute grounds for a new trial, as a general rule. But if the impeaching evidence is so crucial to the defendant’s guilt or innocence that its admission will probably result in an acquittal, a new trial may be ordered .” State v. Singleton, 853 S.W .2d 490, 496 (Tenn. 199 3).

The testimony by Pick ett in this case is impea chme nt testimo ny offered to contradict Crum’s version of the events on the night of the m urder. There fore, to justify ordering a new trial, w e mus t find that the evidence is so cruc ial that “its admission will probably result in an ac quittal.” Id. We decline to so find.

The materia lity of the testimony is q uestio nable . Althou gh Pic kett’s testimony does p resent a new vers ion of the events surrou nding the victim ’s death, the testimony does not show that the Defendant is any less culpable. To determine that this testimony would likely result in an acquittal, we must first accept the testimony as true. We m ust then accept the premise that because Paul Crum lied about the discovery of the victim, he or someone else, perhaps Carl Sande rs, raped and killed th e victim. We find it difficult to accept such a theory. Accep ted as true , this testimony shows that the victim was moved, not that evidence was destroyed or removed, or that anyone other than the Defendant committed the crime. We are thu s una ble to a gree th at this evidence

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is so crucial that the trial judge erred by not granting a new trial fo r the Defe ndant. This issu e is therefo re withou t merit.

Accordingly, the judgment of the trial court is affirmed.

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DAVID H. WELLES, JUDGE

CONCUR:

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GARY R. WADE, PRESIDING JUDGE

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THOMAS T. WOODALL, JUDGE