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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
July 1, 2008 Session STATE OF TENNESSEE v. JOHN FRED HOWARD
Direct Appeal from the Criminal Court for Shelby County No. 03-05005 John P. Colton, Jr., Judge

No. W2008-00208-CCA-R3-CD - Filed April 17, 2009

The defendant, John Fred Howard, was convicted of first degree premeditated murder by a Shelby County jury and subsequently sentenced to a term of life imprisonment. On appeal, he has raised eight issues for our review: (1) whether the evidence at trial was sufficient to support the verdict, specifically the jury's rejection of his claim of self-defense and the element of premeditation; (2) whether the trial court erred in refusing to sequester the jury; (3) whether the trial court erred in failing to suppress graphic photographs of the deceased; (4) whether the trial court erred in admitting test results from two blood samples which the defendant did not get until the second day of trial; (5) whether the trial court erred in admitting certain evidence without the establishment of a valid chain of custody; (6) whether the trial court erred in allowing witness testimony which was highly prejudicial to the defendant; (7) whether the trial court erred by refusing to allow defense counsel to publish certain exhibits to the jury immediately after they were admitted, which minimized their impeachment value and violated the defendant's right of cross-examination; and (8) whether the cumulative error at trial demands a reversal in the case. Following review of the record, we find no reversible error and affirm the judgment of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C. MCLIN , JJ., joined. Timothy J. Williams, Memphis, Tennessee, for the appellant, John Fred Howard. Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity and Rachel Newton, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual Background At approximately 7:00 p.m. on April 4, 2003, the sixty-two-year-old defendant fatally stabbed the victim, Tim Howard, his fifty-three-year-old brother, during the course of an altercation between the two men at their home. The defendant was later indicted by a Shelby County grand jury on one count of first degree murder. Multiple witnesses testified at trial. The State first called the victim's wife, Mrs. Marcia Howard, whom he had been married to since 1994. She testified that the two separated in November 2002, and the victim moved in with the defendant at that time. She also testified that the victim had joined Alcoholics Anonymous in December. Mrs. Howard testified that the victim and the defendant had a third brother, Charles Howard, who was mentally disabled, who had died ten months prior to the death of the victim. Their mother had left a trust fund for Charles Howard upon her death, which was managed by the defendant, a certified public accountant. According to Mrs. Howard, she and the victim were concerned about the management of that account, believing that the defendant had taken the money, which was supposed to be divided equally between the two following Charles Howard's death. The defendant failed to satisfactorily answer the victim's questions regarding the money. She testified that the two also inherited their mother's house, which was paid for. The victim wanted the defendant to obtain a mortgage on the house in order to repay him the $110,000 to $120,000 he was owed from the trust. Mrs. Howard also testified that her home was broken into after her separation from the victim and that she suspected the victim was responsible because neighbors said they saw his car in the area at the time. Upon recommendation by the police, she obtained an order of protection against the victim. After the order of protection was issued, the victim left a note in her mailbox which read, "Be afraid. Be very afraid. The anticipation of death is worse than death itself." She renewed the order of protection, stating she wanted it in place until the marital dissolution agreement was finalized. According to her testimony, she did not renew the order for her protection. She testified that the victim was never physically abusive toward her. During the week prior to the victim's death, the defendant called Mrs. Howard and told her that he wanted the victim out of the house. On the day of the murder, the defendant called her several times and stated that he wanted to get the victim committed based upon his alcohol problem. According to Mrs. Howard, the victim had not had a drink in several months. The defendant was becoming "very agitated at the situation" and kept insisting that he wanted the victim out of the house. Mrs. Howard informed the defendant that the victim had found a condominium, which he planned to purchase in the following weeks, after the defendant gave him the money he owed. The defendant commented that the victim had no business paying cash for the condominium. According to Mrs. Howard, the defendant then stated he was not going to give the victim the money for his share of the trust fund. She did not speak with the defendant again until he called her following the murder and informed her that he had stabbed the victim with a knife after the victim had "jumped him." -2-

The next day, she returned to the home in order to get funeral clothes for the victim. While in the house, she found a note which had been torn up and placed in the top of the defendant's closet. The note referenced the defendant's agreement to mortgage the home and pay the victim all money due him from the estates of their mother and brother. The paper had been wadded up and was covered in blood. The victim's divorce attorney, Richard Skip Carnell, was also called to testify. He stated that he had several conversations with the defendant regarding the victim, one of which occurred on the day before the murder. The defendant was interested in the victim's divorce proceedings, which were nearly complete. Carnell testified that the defendant was "very pushy" and demanded to know what property was involved in the divorce, specifically asking him about a $11,000 antique tea set. The defendant also asked about the trust account and credit card charges on Mrs. Howard's card, which the victim believed the defendant had made. Carnell told the defendant that none of these items were brought up in the divorce proceedings. When the defendant asked about the money missing from the trust accounts, Carnell stated that he told him, "[I]f it wasn't for the good graces of [the victim], [you] would be in jail right now because [I] told [the victim] to turn it over to the police, and it was a substantial amount. It was $109,000." The defendant replied that he did not want Mr. Carnell involved and that he would deal with his brother himself. Mr. Carnell testified that he was aware the victim had an alcohol problem but stated that he had never known him to be violent to anyone. He was aware of the order of protection issued to Mrs. Howard but stated that they were "pretty standard" in divorce cases. Mr. Carnell last spoke with the victim on the day of the murder and believed that he was in the best mood he had been in for some time. Mr. William Lenahan, a fraud investigator, testified that he had known the victim for thirty years. In January 2003, the victim contacted him and questioned him regarding the situation with the money from the estates of his mother and brother. He met with the victim in April and advised him to retain a lawyer and initiate a civil lawsuit over the matter. Robert Brown testified that he, the defendant, and the victim lived in the same neighborhood. At approximately 6:30 p.m. on the night of the murder, Brown and his wife were sitting on the front porch of their home when they heard a man scream, "Help me. Help me." He ran across the street to where the voice came from and called out to the man. Brown again heard the man ask for help. He could not get into the yard of the house where the men were because a chain link fence was between the houses. Brown looked over the fence and again heard the man say, "Help me. He has [a] knife. He's stabbing me." According to Brown, he saw two men in the back of the house and one man was standing over the other. He stated that the second man was "slumped down kind of on his knees on the stoop." Brown saw the man, who was standing, bend over the victim, hold the victim around the chest in front of him, and make a downward chopping motion. Brown testified that it was dusk but that he was able to see because the porch light of the house was on. At this point, he returned to his home to call 9-1-1. When he returned to the scene, he saw the victim lying

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on the ground with a "shiny substance" on the ground around him. At this point, he observed the defendant go back into the house. Officer Ricky Davison of the Crime Scene Investigation Unit testified that he found blood spatters throughout the entire house. He collected samples and placed them in the property room. A forensic serologist with the Tennessee Bureau of Investigation (TBI) testified that she tested various samples from the crime scene and that the victim's blood was found on a switchblade knife, on eyeglasses found at the scene, in the den, in the study, on a letter which had been ripped, and on a knife with a wooden handle. Dr. O.C. Smith performed the autopsy on the victim and testified that he suffered sharp force damage to his left carotid artery. He identified four stab wounds to the victim's neck and stated that the victim had multiple wounds to his scalp, as well as circular bruises which could have been caused by the butt end of a folding knife. The victim also had multiple abrasions on the left side of his face. There was also an abrasion to his forehead, some bruises on the tip of his nose, and smaller abrasions on his cheek and chin. On the right side of his face, the victim's cheek bone had abrasions indicating impact with a flat surface such as a floor or the ground. The victim's hands and forearms also had bruises and scrapes. Dr. Smith testified that he determined that, based upon the blood patterns found throughout the house, the victim's carotid artery was not severed inside the home. He concluded that this lethal injury occurred outside of the house. The defendant testified in his own behalf at trial and stated that he acted in self-defense. He stated that when he arrived home from work, the victim was "agitated" and wanted him to sign an agreement regarding the trust fund whereby the defendant would repay the money by obtaining a mortgage. The defendant stated that he refused to sign the document, and the victim "flew into a fit of rage[.]" The defendant testified that the victim jumped on him and began to beat him and that the two fought throughout the home. Initially, the defendant testified that he let the victim beat on him but stated that he grew tired of it and told the victim to "get off of me and leave me alone[.]" He testified that he then hit the victim with the butt end of a closed folding knife in order to knock the victim unconscious, but it only made the victim angrier. The fight progressed to the back bedroom of the home where the defendant again tried to knock the victim unconscious. According to the defendant, he then tried to get out of the house, but the victim was right behind him. The defendant testified that he told the victim, "You either quit or I'm going to cut you." The victim persisted, so the defendant stated that he cut him in the neck. The defendant's statement given to police was also admitted. In the statement, the defendant admitted stabbing the victim. According to the defendant, the victim had anger management problems, had threatened his wife, and had accused the victim of stealing from him and having an affair with the victim's wife. In the statement, he told police that shortly after he arrived home, the victim confronted him about selling their home. He stated that the victim had told him that he knew several ways to kill people. The defendant stated that he was terrified. The altercation began in the kitchen and progressed throughout the house. He said that he tried to stop the victim but that hitting him only made him angrier. The fight eventually progressed to the carport where he opened his knife -4-

to threaten the victim. He then acknowledged wounding the victim in the throat multiple times to make him stop. Afterwards, he called 9-1-1. The defendant also described his own injuries, which included a one-inch wound on his left thumb, a swollen and discolored right hand, and a bruised knee. A second statement was given shortly after the first in which the defendant described hitting the victim in the head with a closed four-inch folding knife approximately fifteen to twenty times. The defendant also stated that he had moved a gun into the kitchen after the altercation, stating he did not know if the victim was going to return to the fight. The defense also called Dr. William Walters, a psychiatrist. He testified that he did not treat the victim but had reviewed documents in the case. Based upon his review of these documents, he believed that the victim was delusional and violent. After hearing the evidence presented, the jury convicted the defendant of first degree murder as charged. Following the denial of his motion for new trial, the defendant filed the instant timely appeal. Analysis I. Sufficiency of the Evidence In two separate issues, the defendant asserts that the evidence produced at trial was insufficient to support the verdict. Specifically, he contends that the evidence was not sufficient to establish that the killing was not done in self-defense and that the element of premeditation was not established. In considering this issue, we apply the rule that where the sufficiency of the evidence is challenged, the relevant question for the reviewing court is "whether, after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt so that, on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct

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evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be "so clearly interwoven and connected that the finger of guilt is pointed unerringly at the [d]efendant and the [d]efendant alone." State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn. 1985)). However, as in the case of direct evidence, the weight to be given circumstantial evidence and "the inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury." Marable v. State, 203 Tenn. 440, 452, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted). a. Self-Defense When the defense of self-defense is asserted, it is the State's burden to negate the existence of self-defense beyond a reasonable doubt. T.C.A.

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