03/26/2019 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 14, 2018 Session

STATE OF TENNESSEE v. AHMON WATKINS AND PETER DODSON, IV

Appeal from the Circuit Court for Rutherford County Nos. F-75627A, F-75627B David M. Bragg, Judge ___________________________________

No. M2017-01600-CCA-R3-CD ___________________________________

In a joint trial, a Rutherford County jury convicted Ahmon Watkins of two counts of aggravated rape, four counts of rape, and two counts of sexual battery, and Peter Dodson, IV, of one count of aggravated rape, one count of rape, and two counts of sexual battery. The trial court sentenced Defendant Watkins to an effective sentence of twenty years and Defendant Dodson to an effective sentence of twenty-five years. On appeal, Defendant Watkins and Defendant Dodson assert that: (1) the trial court erred when it did not grant a new trial based upon newly discovered evidence; (2) the trial court erred when it did not grant a new trial based upon the victim’s false testimony; (3) the State committed prosecutorial misconduct during closing argument; (4) the trial court made improper “introductory comments” to prospective jurors during voir dire; (5) the trial court improperly excluded impeachment testimony; (6) the trial court failed to order the deposition of the victim; (7) the trial court erred when it gave jury instructions on the law before jury selection was complete; (8) the trial court improperly instructed the jury on reckless conduct; (9) the trial court improperly addressed a jury question during deliberations; (10) the defendants are entitled to relief based upon cumulative error; and (11) the evidence is insufficient to sustain the defendants’ convictions. Defendant Watkins additionally raises issues related to sentencing. After review, we reverse for cumulative error and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and J. ROSS DYER, JJ., joined.

Thomas S. Santel, Jr. (on appeal), and Drew Justice (at trial), Murfreesboro, Tennessee, for the appellant, Ahmon Watkins.

Patrick T. McNally (on appeal), Nashville, Tennessee, and Russell N. Perkins (at trial), Murfreesboro, Tennessee, for the appellant, Peter Dodson, IV.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Jennings H. Jones, District Attorney General; and Sarah N. Davis and Matthew W. Westmoreland, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION I. Facts

This case arises from the defendants’ sexual interactions with the victim on the night of January 21, 2015, in Murfreesboro, Tennessee. A Rutherford County grand jury indicted Defendant Watkins and Defendant Dodson for six counts of aggravated rape and two counts of aggravated sexual battery.

A. Trial and Sentencing

On the night of January 21, 2015, the victim went to the Campus Bar at 8:00 p.m. to drink beer after work. It was karaoke night and, after participating in karaoke, the victim returned to her seat at the bar. Over the course of the evening, the victim drank approximately four beers. As she sat at the bar, Defendant Watkins introduced himself, and they began talking. Defendant Watkins told the victim she was pretty and “push[ed] up against” her. She described their interaction as flirting, and she believed Defendant Watkins was “hitting on” her.

As they talked, Defendant Watkins introduced Defendant Dodson to the victim. Defendant Dodson spoke with the victim briefly before moving on to talk with other people at the bar. Defendant Watkins asked the victim to leave with him. She described Defendant Watkins as “persistent” and “pushy,” but she agreed to leave the bar with him because she “felt like it.” When Defendant Watkins and the victim left the bar together, Defendant Dodson stayed at the bar talking with other persons. As they walked out to the parking lot, Defendant Watkins guided the victim by her elbow to his vehicle. The victim recalled having “doubts” about leaving with Defendant Watkins but agreed that she did so “willingly.” Once inside the car, Defendant Watkins began “groping” the victim. The victim told the Defendant “no,” that she would not engage in sex in a car. Defendant Watkins drove to an Exxon gas station and went inside to buy condoms while the victim waited in the car. As they drove, Defendant Watkins continued to tell the victim that she was “pretty” and that she could sing well. The victim said that she was “flattered” by the compliments.

After buying the condoms, Defendant Watkins drove several businesses away from the gas station and parked in front of Grace Automotive. Defendant Watkins and the victim entered the business through a door that led into an office. Another door inside the office led into a “garage” area. The two entered into the garage area and began kissing and removing clothing. The victim voluntarily undressed “thinking that [she] and [Defendant Watkins] were going to have sex.” Defendant Watkins sat the victim in a chair and then “was all over her.”

While the victim and Defendant Watkins were engaged in “sex,” Defendant Dodson entered the garage. Defendant Watkins stopped and walked over to Defendant Dodson. As the men talked, the victim tried to gather her clothing, feeling uncomfortable with the introduction of a third person. After a few minutes, both men moved toward her and began “rubbing up against [her], touching her.” Defendant Dodson kissed the victim on her breast. The victim told the men that she did not want to participate in a threesome, but Defendant Watkins assured her that it would be “okay.” The victim reiterated that she “don’t share” and did not “want this.” She was again told, “Don’t worry. You’ll like it.” Defendant Watkins “flipped” the victim over and while standing behind the victim, instructed her to “suck [Defendant Dodson’s] cock.” Defendant Dodson, who was now seated in the chair in front of the victim, pulled out his penis. Defendant Watkins pushed the victim’s head into Defendant Dodson’s crotch while pulling her hair and repeated that the victim was to “suck [Defendant Dodson’s] penis.” Feeling fearful and that she had no choice, the victim performed fellatio on Defendant Dodson while Defendant Watkins penetrated the victim’s vagina from behind with his penis.

While standing behind the victim, Defendant Watkins also anally penetrated the victim with his penis while holding the victim’s arm back, “kind of like pinning [her].” The victim did not normally engage in anal sex and had not consented to it. She told Defendant Watkins that “it hurt.” During these interactions, Defendant Watkins “hit” the victim on her buttocks. As the victim was bent over Defendant Dodson, she heard Defendant Watkins say, “heads up,” so she turned her head toward Defendant Watkins. As she turned, Defendant Watkins slapped the side of the victim’s face causing a nose bleed. The victim was “really scared” and when she turned her head back toward Defendant Dodson, who was still seated in front of her, he told her that her nose was bleeding. Defendant Dodson, angry that the victim had bled on his new sneakers, backed away saying that the victim was “too bloody” to continue. The victim attempted to push Defendant Watkins off of her and, in the process, kicked “someone’s” cell phone, propelling the phone “off to the side.” The victim said that Defendant Dodson “got very angry,” asking why she had “do[ne] that,” and the victim responded that she was trying to push Defendant Watkins off of her. The victim had seen a light, “like a flash,” and assumed the defendants were filming the acts. She said it appeared that Defendant Dodson was the one holding the phone.

The victim cleaned her face in the bathroom and then returned to the garage area and dressed. Defendant Watkins drove the victim back to the Campus Bar. During the drive, Defendant Watkins, who is black, told the victim that he was married and advised the victim that if she saw him in public with “another white woman” not to speak to him. The victim testified that this upset her because she would not have left the bar with Defendant Watkins had she known he was married. The victim described Defendant Watkins’s demeanor during the incident at the garage as “aggressive,” but on the return drive to the Campus Bar, she said he was “[v]ery sweet, mellow.” She exited Defendant Watkins’s vehicle in the bar parking lot and went inside the bar. The victim went to the bathroom to wash her face again because she was still bleeding. She then asked the bartender for the Murfreesboro Police Department phone number. When the bartender refused, the victim went outside and called 911.

Initially, the victim told the 911 operator that she had been raped in a car. She explained that she did so because she was scared, confused, and she wanted someone to help her. She said that, although the rapes occurred in the garage, the incident began with Defendant Watkins groping her in the car. Upon police arrival, the victim vomited multiple times due to fear and stress. She was transported to St. Thomas Murfreesboro where she underwent a sexual assault examination. She told the nurse practitioner treating her that Defendant Watkins and Defendant Dodson had raped her in a garage but that she did not know their names. The victim testified that, since these events, she had discussed the rapes in therapy and struggled with sleeplessness and anxiety. She further identified photographs of her injuries, including a bruise on her hand and a handprint on her buttock. The photographs were taken as part of the sexual assault examination. She stated that she had experienced pain from irritation caused by the anal penetration.

Shonda Davenport, a bartender at the Campus Pub, testified that on Wednesday and Saturday nights, the bar held karaoke nights. Ms. Davenport recalled that one night a patron, later identified as the victim, approached her asking if Ms. Davenport would call the police because the victim had been raped. The bar was “very, very busy” due to karaoke night, so Ms. Davenport directed the victim to the doorman for assistance. Ms. Davenport had seen the defendants in the bar that night but did not serve them any alcohol.

Early on the morning of January 21, 2015, Jacob Lamb, a Murfreesboro Police Department (“MPD”) officer, responded to a call about a possible rape at the Campus Pub. The phone call to 911 was placed at around 1:30 a.m., and Officer Lamb, who was in close proximity, arrived within minutes of the call. When he arrived, he met with the victim, who, based on his experience, did not appear intoxicated. Immediately upon his arrival the victim, who was visibly shaken, began to “stress throw[ ] up.” Based upon the victim’s emotional state, Officer Lamb seated the victim in the back of his patrol car where she provided a brief description of the suspects.

Diana Thomas testified as an expert in forensic sexual assault examination. Ms. Thomas, a sexual assault nurse examiner, performed a “rape kit” on the victim and prepared a report of the exam. The victim arrived at the hospital at 2:09 a.m., and the exam was performed at 3:50 a.m. Although the victim reported having drunk beer during the previous evening, Ms. Thomas did not detect any intoxication. Ms. Thomas described the victim as “alert,” “oriented, and tearful.” The victim reported penetration to her mouth, vagina, and anus and the involvement of more than one assailant. Ms. Thomas observed a mark on the victim’s hand and a “pattern bruise” on the victim’s buttocks consistent with the victim’s description of the incident. Photographs of these injuries were introduced into evidence. During the pelvic exam, Ms. Thomas found both external and internal injuries. She observed an abrasion to the apex of the labia minora caused by friction or blunt force trauma and redness on the cervix, which is normally caused by penetration. During the examination, Ms. Thomas observed bleeding in the victim’s rectum area caused by a “tear to a skin tag on a hemorrhoid.” Ms. Thomas collected swabs taken from the victim’s mouth, breasts, vagina, cervix, and rectum based upon the victim’s description of the incident. The victim’s tank top, bra, and socks worn that night all had blood on them.

Laura Boos, a Tennessee Bureau of Investigation (“TBI”) Special Agent Forensic Scientist, testified as an expert witness in the field of forensic biology. Agent Boos tested swabs and clothing provided in this case. The items submitted included oral swabs from both defendants, and oral, vaginal, cervical, and breast swabs and clothing items from the victim. The presence of sperm was found on the victim’s vaginal swab. Further analysis of the sperm revealed genetic material from at least three individuals with the major contributor matching the victim’s DNA profile. One of the partial minor contributors was consistent with Defendant Watkins and the other limited contributor was “inconclusive” as to Defendant Dodson. “Inconclusive” indicated that Defendant Dodson could neither be included nor excluded as a contributor of the sample.

Special Agent Boos determined that there was also sperm on the victim’s cervical swab but due to degraded DNA, the result was inconclusive. The breast swab was tested for saliva and the presence of alpha-amylase was detected. DNA testing revealed a mixture of genetic material from the victim and Defendant Dodson. Agent Boos tested sperm cells found on the inside crotch area of the victim’s pants. The DNA found in the sperm fraction was from two individuals; the major contributor profile matched Defendant Watkins’s profile. The minor contributor was inconclusive as to the victim, and Defendant Dodson was excluded as a contributor.

Agent Boos obtained a DNA profile from a blood stain on the back of the victim’s pants. The DNA profile was a mixture of at least two individuals; the major contributor was the victim, and the minor contributor was Defendant Watkins as to the sperm fraction in this sample. Defendant Dodson was excluded as a contributor to the mixture. Agent Boos found sperm on the inside of the victim’s tank top, and the DNA profile of the sperm matched Defendant Watkins’s profile. A blood sample taken from the back of the victim’s tank top contained a DNA profile consistent with the victim’s profile.

Tommy Roberts, an MPD officer, spoke with the victim and obtained a description of the suspects and the garage where she had been taken. Based upon this information, he began canvassing automotive stores on Northwest Broad. He saw Defendant Watkins standing outside a car dealership and thought he looked like the man in the still photograph obtained from the Campus Pub surveillance video. Investigator Roberts approached Defendant Watkins, introduced himself, and showed Defendant Watkins the still photograph. Defendant Watkins identified himself as the man in the photograph. Investigator Roberts asked Defendant Watkins the name of the “other man” at the bar, and the Defendant identified Defendant Dodson.

During the course of the investigation Investigator Roberts obtained surveillance video footage from the Campus Bar and the Florence Station Market. He also subpoenaed Defendant Watkins’s cell phone (“the Watkins phone”) records and Defendant Dodson’s cell phone (“the Dodson phone”) records. Investigator Roberts created a photographic line-up containing photographs of the defendants and showed the line-ups to the victim. She identified both Defendant Watkins and Defendant Dodson in the respective photographic line-ups.

Jennifer West, an MPD officer, worked in the Forensic Services Unit processing cell phones, memory cards, and SIM cards, gathering the data on a device and compiling the data in a format that is “easy for the detective to read.” Detective West typically used several different tools, including Cellebrite and Lantern, to extract and analyze data. Detective West could sometimes extract deleted data from a phone; however, in this case, she was unable to do so. At the time of her extraction, the only extraction available based upon the software was a “logical extraction.” A logical extraction is “only what you can visibly see on the device.” Detective West “usually” recommended to the officer working on a case that they subpoena the cell phone records in order to compare the extraction with the information provided by the cell phone company to determine if information has been deleted.

Detective West was presented with two cell phones related to this case, the Watkins phone and the Dodson phone. When Detective West performed the extractions on the two phones, she was specifically looking for video or photos taken on the night of January 21, 2015, and into the morning hours of January 22, 2015, or any phone calls or text messages between the two phones. Detective West did not discover any photographs or videos based upon her limited extraction.

The results from the logical extraction, however, did show that there were no text messages between the Watkins phone and the Dodson phone on the night of January 21 or early in the morning on January 22, 2015. In reviewing the Verizon billing records for the Watkins phone, for the time period from 7:00 a.m., January 21, 2015, to 8:20 a.m. on January 22, 2015, there were eight phone calls between the two cell phones between 11:52 P.M. and 1:17 A.M. Detective West testified that the eight calls shown on the billing records between the two phones had been deleted from the Watkins phone prior to her extraction. In comparing the two phone records, the phone calls to or from the Dodson phone were the only phone calls that were deleted from the Watkins phone. Phone records showed phone calls to the Dodson phone at various dates and times; the only ones deleted from the Watkins phone were the calls placed during the specified time period.

Detective West testified that she was “advised that there was possibly a video.” Neither of her extractions provided “that information,” so she advised Detective Roberts to contact the TBI to see what assistance they could provide.

Nick Christian, a TBI special agent, conducted a digital forensic examination of the Dodson phone. Agent Christian commonly used the software Cellebrite to extract cell phone data due to its effectiveness and the fact that most district attorneys are familiar with the reporting format for this software. Additionally, the TBI had access to advanced extraction technology such as “JTAG,” “a chip-off procedure” that allowed retrieval of deleted data. Agent Christian performed a chip-off extraction on the Dodson phone. When performing a chip-off extraction, if deleted data has been “overwritten,” the procedure will not recover that data.

Specifically, Agent Christian was looking for deleted files containing video or photographs that had not been overwritten. Agent Christian identified the CD he had created and given to the State containing the cell phone extraction. Based upon the extraction, Agent Christian found that all calls on the Dodson phone made prior to January 25, 2015 had been deleted. Agent Christian was looking for videos or photos taken during the late hours of January 21, 2015, to the early morning hours of January 22, 2015. Agent Christian was unable to recover the actual video or pictures but did find remnants of two files that were created during that timeframe. He found that a video had been taken at 12:36 a.m. on January 22, 2015. A photograph was taken two minutes later at 12:38 a.m. Both images had been deleted and overwritten so were unrecoverable. Following his examination, at defense counsel’s request, Agent Christian transferred an exact copy of the extracted data to a private company, LogicForce, for further examination.

The defense presented Brian Fengler, a physician who met with the victim following the alleged rapes. On January 21, 2015, Dr. Fengler was working at St. Thomas Rutherford Hospital Emergency Department as an emergency physician. During the early morning hours of January 22, 2015, Dr. Fengler met with the victim, who reported that she had been raped. His summary in the medical records indicated that the victim told him that she was coerced by two men to leave the bar. They took her to their car and “forcibly started” having vaginal intercourse with the victim in the car. They drove to a place with “a lot of cars in the lot” and took her into an office where they forced her into intercourse. She reported penetration to her mouth, vagina, and rectum. She attempted to fight back and, at one point, was punched in the face/nose. The assailants drove the victim back to the bar and left her there.

Kathy Tomlinson, Defendant Watkins’s mother-in-law, testified that Defendant Watkins is a peaceful person. She had witnessed Defendant Watkins “raise his voice” but she had never seen him “be violent.” Corwin Moses grew up with Defendant Watkins and testified that he was a “peaceful person.” Jamie McCaskill, Defendant Watkins’s wife’s cousin, also testified that the Defendant was “peaceful.”

After hearing this evidence, the jury found Defendant Watkins guilty of four counts of rape, two counts of aggravated rape, and two counts of sexual battery. The jury found Defendant Dodson guilty of one count of rape, one count of aggravated rape, two counts of sexual battery and not guilty as to the four remaining counts. After a sentencing hearing, the trial court found that Defendant Watkins was the leader in the commission of an offense involving two or more actors and gave slight consideration to the enhancement factor that the rape was committed for pleasure or excitement. The trial court also considered mitigating factors but found that none applied. The trial court then merged the appropriate convictions and, for Defendant Watkins, imposed an effective sentence of twenty years as a Range I offender in the Department of Correction. The trial court imposed, for Defendant Dodson, an effective sentence of twenty-five years as a Range II, multiple offender, in the Tennessee Department of Correction.

B. Motion for New Trial Hearing

Initially, the parties stipulated that the first exhibit would be a courthouse hallway surveillance recording taken during the trial. Next, Defendant Dodson’s attorney announced that he wanted to call the victim as his first witness but that she was not present. The State asked if she was subpoenaed, and Defendant Dodson’s attorney responded: She was [subpoenaed] subsequent to the Court quashing the deposition. Two subpoenas were issued. They were not served. We didn’t know if she would be here this morning, Your Honor. That was the reason for not calling her.

Based upon our review of the record, we gather that the State had agreed to allow defense counsel to depose the victim in preparation for the motion for new trial hearing but later revoked this agreement when the defense would not agree to limit their questioning to the issues raised in the motion for new trial. The State filed a motion to limit the scope of the deposition of the victim. At a hearing on the motion, the trial court declined to order the parties to conduct a deposition. There are two unserved subpoenas for previous settings but no subpoena in the appellate record for the date the motion for new trial was actually heard.

The defense called Nick Christian, who testified about his extraction from the Dodson phone. He confirmed that he used Cellebrite to extract the available data from the phone but used “another tool that comes with the chip-off extraction software” for the “physical extraction.” Agent Christian identified two reports that he prepared for this case. Agent Christian said that he was asked to look for specific images and videos on a specific date and time or text messages between Dodson’s phone and Watkins’ phone. In his initial report, dated September 9, 2015, he was unable to find the requested images or text messages between the specified devices. He then learned that the first extraction was incomplete, so he “redid” the extraction and obtained the entire sixteen gigabytes from the chip. He conducted the second chip-off extraction on September 29, 2015. In a supplemental report, Agent Christian indicated that there was a video and a photograph taken during the specified date and times that was subsequently deleted. He was unable to recover the image or the video at that time.

Agent Christian testified that he was contacted by both the State and Defendant Watkins’s attorney, Mr. Justice, regarding the extracted data. He was instructed to give the extraction data to David McWhirt with LogicForce, a private digital forensics company. Agent Christian said that he knew Mr. McWhirt, who had formerly worked for the Department of Defense. He confirmed that Mr. McWhirt had received similar training to Agent Christian in forensic work. Agent Christian told the State that LogicForce “had the level of expertise” needed to review and interpret the information. Agent Christian’s notes indicated that Mr. Justice contacted him on October 27, 2015, requesting that LogicForce examine the extraction. Agent Christian spoke with Mr. McWhirt and told him about the second extraction and that he had not completed the supplemental report yet. According to Agent Christian, Mr. McWhirt understood that he would only receive the second, complete, extraction from the chip. Agent Christian said that he released the forensic image to Mr. McWhirt at TBI Headquarters on November 3, 2015.

Following the trial, the State contacted Agent Christian saying, “there actually were images of the incident.” Agent Christian then expanded his search and reviewed the data again with the additional information provided by the State and he found images. Agent Christian explained that no one was able to find the photos because there was no date associated with the photos and they were not the original photos or video but “thumbnails” of the original photos. Agent Christian testified that, given the search parameters and because the images did not have any metadata associated with them, he would have never found the images.

Agent Christian testified at the defendants’ trial on October 5, 2016, and he had provided the defense with the entire extraction almost a year earlier on November 3, 2015. Agent Christian testified that, when he expanded his search, he recovered thousands of images, “[p]ornographic mostly.” Out of the thousands of images, four were related to the victim. Agent Christian confirmed that the State made everything they had available to the defense.

Drew Justice, Defendant Watkins’s attorney, testified that Defendant Watkins told him that there was a video recording of consensual sex taken on Defendant Dodson’s phone the night of the alleged rape. He received the first set of discovery in this case in June 2015, shortly after Defendant Watkins was indicted. After receiving the discovery, the State, Mr. Justice, and Defendant Dodson’s attorney, Mr. Perkins, had numerous discussions about potential video or photographs related to the incident. All parties were interested in finding the images if possible. After the MPD had conducted an extraction, the State sent Defendant Dodson’s cell phone to the TBI for additional analysis. Mr. Justice agreed that the State notified him once the TBI had completed the first extraction of Defendant Dodson’s cell phone and provided him with the first extraction.

Mr. Justice testified that he told the State that he wanted someone from LogicForce to conduct an extraction for him because he did not “trust the TBI.” Despite an October 27, 2015 email stating that the TBI analysis was “on-going,” Mr. Justice claimed that he was unaware of the second extraction and the supplemental report. The State introduced a November 3, 2015 email from Mr. McWhirt, Defendant Watkins’s expert, to Mr. Justice stating, “Regarding the Ahmon Watkins matter, I wanted to bring to your attention that SA Nicholas Christian from TBI released to me the extraction file from the Samsung phone.” Mr. Justice maintained that he was still unaware of the final extraction and added that he never had any intention of looking for photographs even had he had the final extraction. Mr. Justice instructed Mr. McWhirt to review the extraction specifically for video based upon his client’s assertions. Mr. Justice conceded that the - 10 -

photographs at issue were on the extraction given to Mr. McWhirt. He argued, however, that it was extremely difficult to find the thumbnail photographs. Mr. Justice agreed that, in April 2016, the State filed with the trial court written discovery indicating that there were two CDs from the TBI. This filing was in addition to what Mr. Justice had already been given in April 2016. Mr. Justice acknowledged that the written discovery indicated that there were five CD’s (three from the MPD and two from the TBI), and he confirmed that he had received five CD’s. He stated that one of the two TBI CDs contained the September 9 report and the other he “couldn’t view.” Mr. Justice also agreed that he did not object to the State’s references to the final extraction at trial.

Following the trial, Mr. Justice attempted to view the CD with the supplemental report introduced at trial but due to a crack in the CD, he was unable to view it. He then contacted the State requesting the CD and received it eight days after the trial. He reviewed all the photographs and, after close to two hours, found four photographs involving the victim. Mr. Justice said that, in the photographs, the victim was holding what Mr. Justice believed to be Defendant Watkins’s penis in her left hand. Mr. Justice stated that the victim was either “sucking his penis or licking his penis” while holding her hand over her “own groin area.” He said that the photographs do not display “any distress.” He said he would have used the photographs at trial to argue that the sex in question was consensual. He further asserted that because the photographs were recovered from the Dodson phone, Defendant Dodson had to have taken the photographs, thereby undermining the victim’s claim that she revoked her consent after Defendant Dodson arrived.

Mr. Justice recalled that, during his cross-examination of the victim at trial, the victim “essentially acknowledge[d] that [Defendant] Dodson never even had sex with her.” Mr. Justice testified that the trial court then took a lunch break, after advising the victim not to discuss her trial testimony with anyone. When court reconvened following lunch, Mr. Justice believed that the victim “flip[ped] her story,” claiming that both men had sex with her. Mr. Justice recalled that Mr. Perkins leaned over during the redirect and told Mr. Justice, “looks like they got to her during the lunch break.” Mr. Justice was surprised by the accusation against the State and suggested that it did not occur to him because he is “more naïve.” Nonetheless, he questioned the victim on recross about any discussions as follows:

Mr. Justice: [Victim], during the lunch hour that we took a couple of hours ago after you got done - - after I got done talking to you the last time, did anyone come up to you to talk about your testimony?

Victim: No. - 11 -

Mr. Justice: Did you talk to anyone at the D.A.’s office?

Victim: No.

Mr. Justice: Anyone from the D.A.’s office?

Victim: No.

Based upon his concerns about possible coaching of the victim, Mr. Justice obtained courthouse hallway surveillance footage for the time at issue. The video shows the victim and two assistant district attorneys standing and talking waiting for the elevator. There is no audio to the recording. According to Mr. Justice, it appears that the victim is saying “I am trying” at some point, evidencing that the State is attempting to alter the victim’s testimony. This conversation lasted for just under two minutes.

About the TBI’s second extraction, Mr. Justice agreed that he worked with Defendant Dodson’s attorney in preparation for trial. Specifically, he agreed that he asked Mr. Perkins to see all of the CDs given to him related to the trial and that one of those CDs was the report for the second extraction. While searching the court file following the trial to check on the CD, Mr. Justice found a jury note. Mr. Justice was unaware that the jury had submitted any questions to the trial court.

Following the proof, the trial court denied the defendants’ motion for new trial.

II. Analysis

On appeal, Defendant Watkins and Defendant Dodson assert that they are entitled to a new trial on the basis of: (1) the photographs from the second data extraction found after the trial; and (2) video footage of the victim and the prosecutor at trial talking in the hallway during a lunch break. The defendants also assert that: (3) the State committed prosecutorial misconduct during closing argument; (4) the trial court made improper “introductory comments” to prospective jurors during voir dire; (5) the trial court implemented an improper procedure for the introduction of the victim’s prior inconsistent statements; (6) the trial court did not allow the victim’s deposition to be taken; (7) the trial court erred in giving jury instructions on the law before jury selection was complete; (8) the trial court improperly instructed the jury on reckless conduct; (9) the trial court improperly addressed a jury’s note during deliberations; (10) cumulative error; and (11) the evidence is insufficient to sustain the defendants’ convictions. Defendant Watkins additionally raises issues related to sentencing.

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A. Photographs from the Second Data Extraction 1. Newly Discovered Evidence

The defendants contend that the photographs from the second extraction constitute newly discovered evidence. A new trial on the basis of newly discovered evidence should be granted in cases where: (1) the defendant has been reasonably diligent in obtaining evidence; (2) the materiality of the new evidence is apparent; and (3) the evidence is likely to change the result of the trial. State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993). In order to be entitled to a new trial based on newly discovered evidence, a defendant must demonstrate that all three prongs of the test have been met. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). In order to meet “reasonable diligence” a defendant must demonstrate that neither the defendant nor defense counsel had knowledge of the alleged newly discovered evidence prior to trial. State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997) (citing Jones v. State, 452 S.W.2d 365, 367 (Tenn. Crim. App. 1970)). The decision to grant or deny a new trial on the basis of newly discovered evidence rests within the sound discretion of the trial judge. Caldwell, 977 S.W.2d at 117. Accordingly, our standard of review is abuse of discretion. See State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996).

The defendants contend that the four thumbnail photographs found in the extraction data from Defendant Dodson’s phone constitute newly discovered evidence warranting a new trial. The State responds that the photographs are not “newly discovered evidence” because both defense attorneys and the defense expert possessed the extraction data well in advance of trial and that the defendants failed to exercise “reasonable diligence” in discovering the photographs. Alternatively, the State argues that the photographs have little impeachment value and thus “the general rule that evidence that only ‘contracts or attempts to impeach’ witness testimony” is not sufficient to entitle a defendant to a new trial. Citing State v. Sheffield, 676 S.W.2d 542, 554 (Tenn. 1984).

After hearing the evidence at the motion for new trial hearing, the trial court made the following findings as to this issue:

The [] issue as to the newly discovered evidence of photographs of the victim appearing to engage in consensual sexual acts with a Defendant. And that concerned the Court when it initially read it, because it appeared to allege that the State had withheld evidence. However, a review of the file and the testimony today shows that the State transmitted that evidence to the Defense and the Defense’s expert.

- 13 - Further, the State filed its notice of discovery along with the discovery in the court file well in advance of the trial. And based on comments made in Mr. Justice’s testimony, apparently Mr. Perkins had a copy of the disk. The Court didn’t have any problem finding a copy of the disk. And certainly find that the notice of discovery filed by the State in April lists two C.D.’s. Further Mr. Justice’s testimony, while asserting to the Court he did not receive the second extraction, he acknowledged that his expert received the second extraction. He also acknowledged he had an additional disk that was not functional. I’m not really sure why that disk - - and it was not explored why Mr. Justice did not go back to the State to get that disk reissued. So, the Court finds that the Defendants have not successfully raised an issue with that. Because it appears that the information that they allege was newly discovered was not newly discovered, but was available to the Defendant[s] prior to trial. The trial court concluded that the defendants had not exercised reasonable diligence. The defendants must show that the newly discovered evidence could not have been obtained before trial by the exercise of reasonable diligence on the part of either the defendants or their trial counsel. State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007). This requirement is ultimately fatal to the defendants’ claim. As the defendants both discuss in their appellate briefs, the State disclosed the existence of the TBI report in its discovery response and provided both attorneys and the defense expert with the data. Therefore, any evidence contained in the data did not constitute “newly discovered evidence.” Id. When the trial court has denied a motion for new trial based upon newly discovered evidence, that decision may not be disturbed on appeal unless there is an abuse of discretion. State v. O’Guinn, 641 S.W.2d 894 (Tenn. Crim. App. 1982). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the factual circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial evidence that would support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In our view, there has been no abuse of discretion in this instance. While the evidence is clearly material, the trial court determined that the defendants did not exercise reasonable diligence prior to trial to discover the evidence. We conclude that the trial court did not abuse its discretion. For this reason, this court must conclude that the issue is without merit. - 14 - 2. Alleged Brady Violation Defendant Watkins alleges that the State wrongfully suppressed the four photographs from the extraction. In Brady v. Maryland, the United States Supreme Court held, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). The State does not have an obligation to disclose information that is not in the possession or control of the State. Id. (citing Banks v. State, 556 S.W.2d 88, 90 (1977)). A defendant must prove the following four prerequisites in order to establish a violation of due process under Brady: 1. The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the information whether requested or not); 2. The State must have suppressed the information; 3. The information must have been favorable to the accused; and 4. The information must have been material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant must prove these due process violation prerequisites by a preponderance of the evidence. Id. (citing State v. Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993)). The trial court found that the State had not suppressed the data extraction. [A] review of the file and the testimony [at the motion hearing] shows that the State transmitted that evidence to the Defense and the Defense’s expert. Further, the State filed its notice of discovery along with the discovery in the court file well in advance of the trial. And based on comments made in Mr. Justice’s testimony, apparently Mr. Perkins had a copy of the disk. The Court didn’t have any problem finding a copy of the disk. And certainly find that the notice of discovery filed by the State in April lists two C.D.’s. - 15 - Further, Mr. Justice’s testimony, while asserting to the Court he did not receive the second extraction, he acknowledged that his expert received the second extraction. He also acknowledged he had an additional disk that was not functional. Concerning the first Brady factor, Defendant Watkins filed a discovery motion requesting the information. As for the second factor, we conclude that the State did not suppress the photographs. As the trial court noted, the State provided discovery to the defendants in April 2016 and filed, with the trial court, a notice of discovery along with the discovery prior to the October 2016 trial. By all accounts, the defense expert was given the second extraction on November 3, 2015, at Mr. Justice’s instruction. A November 3, 2015 email from Mr. McWhirt, the defense expert, to Mr. Justice confirms the transfer of the extraction. Accordingly, the Defendant has failed to prove by a preponderance of the evidence that a Brady violation occurred. Defendant Watkins is not entitled to relief as to this issue. B. Courthouse Hallway Surveillance Footage 1. Newly Discovered Evidence The defendants contend that the courthouse surveillance video footage showing the victim and the prosecutor talking while waiting for the elevator is newly discovered evidence entitling them to a new trial. At trial, before the lunch break, the trial court stated to the victim, “I would ask you not to talk to anyone who is outside of the courtroom about anything that you have heard or anything that was said inside the courtroom, especially if it’s somebody that anticipates to be a witness in this trial.” After returning from the lunch break, the State conducted redirect examination. When it was time for recross examination, Defendant Watkins’s attorney, Mr. Justice, asked the following questions: JUSTICE: [Victim], during the lunch hour that we took a couple of hours ago after you got done -- after I got done talking to you the last time, did anyone come up to you to talk about your testimony? VICTIM: No. JUSTICE: Did you talk to anyone at the D.A.’s Office? VICTIM: No. JUSTICE: Anyone from the D.A.’s Office? - 16 - VICTIM: No. Following the trial, Mr. Justice obtained courthouse surveillance video footage showing the victim, the State’s two prosecutors, and a third woman standing at the elevator. The group stands at the elevator for just under two minutes before the elevator arrives. There is no audio portion to the recording. As discussed above, a new trial on the basis of newly discovered evidence should be granted in cases where (1) the defendant has been reasonably diligent in obtaining evidence, (2) the materiality of the new evidence is apparent, and (3) the evidence is likely to change the result of the trial. State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993). On appeal, our standard of review is abuse of discretion. State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996). In addition, when it appears that the newly discovered evidence “can have no other effect other than to ‘discredit the testimony of a witness at the original trial, contradict a witness’ statement or impeach a witness,’” the trial court generally should not order a new trial. State v. Terrell Thomas, No. E2003-02658-CCA-R3-CD, 2004 WL 2544682, at *7 (Tenn. Crim. App., at Knoxville, Nov. 10, 2004) (quoting State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985)); see also Caldwell, 977 S.W.2d at 117. Only if the “impeaching evidence is so crucial to the defendant’s guilt or innocence that its admission will probably result in an acquittal” should a new trial be ordered. State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993) (citing Rogers, 703 S.W.2d at 169). After review, we conclude that the victim’s conversation with the assistant district attorney while waiting for the elevator is not material and would not likely change the outcome at trial. The evidence would be used for impeachment purposes. We cannot conclude that this impeaching evidence is so crucial to the defendants’ guilt or innocence that its admission would probably result in an acquittal. Therefore, the trial court did not abuse its discretion in denying relief. The defendants are not entitled to relief as to this issue. ^[2]. Failure to Correct False Testimony In a related issue, the defendants contend that the State failed to correct the victim’s false testimony that she did not speak with the prosecutors during the lunch break. The State responds that the defendants have failed to show that the victim’s testimony was false. - 17 - In its ruling denying the motion, the trial court stated that his instruction, given before the lunch break, to the victim not to speak to anyone was based upon Tennessee Rule of Evidence 615, more commonly known as the rule of sequestration and, therefore, the victim did not violate this admonition by speaking with the State. Rule 615 of the Tennessee Rules of Evidence provides: At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. The trial court further found that there had been no proof that the victim talked to the prosecutors about her testimony or “that any improper discussion happened outside the presence of the courtroom.” The trial court found that the victim’s testimony was “honest – or at least there’s been no evidence that her testimony was dishonest when she said that she had not talked to anyone from the D.A.’s Office about her testimony during the break.” It is without question that the State may not present false testimony and that it has an affirmative duty to correct false testimony presented by State’s witnesses. State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). This affirmative duty applies regardless of whether the district attorney general solicited the false testimony. Id. at 618 (citing United States v. Barham, 595 F.2d 231, 232 (5th Cir.1979)). If the State fails to correct the witness’s false testimony, then the defendant’s due process rights are violated. Id. (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959)). This affirmative duty also applies “when the false testimony is given in response to questions propounded by defense counsel for the purpose of impeaching the witness.” Id. at 617 (citations omitted). In order to prevail on a claim that the State failed to correct false testimony, the defendant must prove the following by a preponderance of the evidence: “(a) that false or perjured testimony was admitted at trial, (b) that the state either knowingly used such testimony or knowingly allowed it to go uncorrected, and (c) that the testimony was material and deprived him of a fair trial.” Roger Morris Bell v. State, No. 03C01-9210-CR-00364, 1995 WL 113420, at *8 (Tenn. Crim. App., at Knoxville, Mar. 15, 1995), perm. to appeal denied (Tenn. Aug. 28, 1995). We conclude that the defendants failed to prove any of the aforementioned factors by a preponderance of the evidence. The victim was questioned as follows: - 18 - JUSTICE: [Victim], during the lunch hour that we took a couple of hours ago after you got done -- after I got done talking to you the last time, did anyone come up to you to talk about your testimony? VICTIM: No. JUSTICE: Did you talk to anyone at the D.A.’s Office? VICTIM: No. JUSTICE: Anyone from the D.A.’s Office? VICTIM: No. The trial court, who observed the exchange, understood Mr. Justice to be inquiring about whether the victim had spoken to anyone about her testimony. Whether the victim had spoken to the prosecutor about her testimony and received coaching that influenced her testimony at trial was the crux of Mr. Justice’s concern and the motivation behind the question. He testified as such during the motion for new trial when he stated, “I just asked [the victim] whether she had talked with the State about the case during the lunch break at all. And I asked her effectively that question three times. And she denied it three times.” As Mr. Justice testified, the victim denied speaking to the prosecutor “about the case,” and the defendants provided no proof that the victim and the prosecutor talked about the case during their conversation while waiting for the elevator. Therefore, there is no proof that the victim testified falsely at trial and that the State knew of this false testimony. Although not proof, as part of the record we note that the State, in its response to the motion for new trial, stated that there was no discussion regarding the victim’s testimony; therefore, the prosecutor had nothing to correct. The video shows the victim talking with the two prosecutors and a third woman, but, with no audio, there is nothing to indicate that the discussion was improper. Accordingly, the defendants have failed to carry their burden of proof with regard to showing that the State failed to correct false testimony. The defendants are not entitled to relief on this issue. C. Improper Prosecutorial Argument The defendants allege that the State made improper comments during closing argument. The State responds that the prosecutor’s comments were in response to defense argument and none of the statements were so inflammatory as to deny the defendants due process. - 19 - Our supreme court has consistently opined on prosecutorial misconduct1 regarding closing arguments as follows: The basic purpose of closing argument is to clarify the issues that must be resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). While “argument of counsel is a valuable privilege that should not be unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975), “such [ ] arguments must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). Because closing argument affords an opportunity to persuade the jury, 11 DAVID L. RAYBIN, TENNESSEE PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 29 .2, at 97 (2008), leeway should be given regarding the style and substance of the argument. Banks, 271 S.W.3d at 131; State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Hence, counsel may employ “forceful language in their closing arguments, as long as they do not stray from the evidence and the reasonable inferences to be drawn from the evidence.” Banks, 271 S.W.3d at 131. State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012). The court has also advised that a criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d at 131 (citing United States v. Young, 470 U.S. ^[1], 11-13 (1985); State v. Bane, 57 S .W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not automatically warrant reversal)). “An improper closing argument will not constitute reversible error unless it is so inflammatory or improper that if affected the outcome of the trial to the defendant’s prejudice.” Id. (citing State v. Thacker, 164 S.W.3d 208, 244 (Tenn. 2005); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998)); see also State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005).