State v. Paul William Ware

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 20, 1999
• Docket: 03C01-9705-CR-00164
• Status: Published

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.

-2- 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.

-3- 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.

-4- 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.

-5- 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.

-6- 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.

-7- 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.

-8- 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.”

-9- 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

-10- 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.”

-11- 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.”

-12- 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.

-13- 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

-14- 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.

-15- 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.

-16- 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

-17- 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.

-18- 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.

-19- 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)).

-20- 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

-21- 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.

-22- 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 . . . .

-23- 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.

-24- 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

-25- 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

-26- 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).

-27- 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,

-28- 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.”

-29- 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.

-30- 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.

-31- 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

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.

-32- 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

-33- 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,

-34- 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

-35- 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.

-36- 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).

-37- 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

-38- 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:

-39- 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

-40- 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).

-41- 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

-42- 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.

-43- 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

-44- 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.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

-45-