State of Tennessee v. J. C. Fair And Krederick Fair

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 7, 2008

STATE OF TENNESSEE v. J. C. FAIR and KREDERICK FAIR

Direct Appeal from the Criminal Court for Shelby County

No. 04-02746 James C. Beasley, Jr., Judge

No. W2007-00730-CCA-R3-CD - Filed August 14, 2009

Following a jury trial, Defendants, J. C. Fair and Krederick Fair, were convicted of aggravated

robbery, a Class B felony. Each Defendant was sentenced as a Range II, multiple offender, to

eighteen years. On appeal, both Defendants argue (1) that the evidence was insufficient to support

their conviction of aggravated robbery; (2) that the trial court erred in denying Defendants’ motions

for a mistrial; and (3) the trial court erred in its instructions to the jury. Defendant J. C. Fair also

argues on appeal that the trial court erred in denying his motion to dismiss the indictment against

him on the basis of prosecutorial vindictiveness and that the trial court erred in certain evidentiary

rulings. After a thorough review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.

MCLIN , JJ., joined.

Jerri D. Mauldin, Memphis, Tennessee, (on appeal) for the appellant, J. C. Fair; Jeff Woods,

Memphis, Tennessee, (at trial) for the appellant, J. C. Fair; and James E. Thomas and Jason Poyner,

Memphis, Tennessee, for the appellant, Krederick Fair.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; Colin Campbell, Assistant District Attorney

General; and Michelle Parks, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. Background

Evelyn Johnson testified that in July 2005 she was the property manager for the Lincoln

Apartments in Memphis, and her responsibilities included collecting rents and leasing vacant

apartments. Ms. Johnson stated that Defendant J. C. Fair lived with Quartisha Cotton who rented

the apartment located at 1171 North Belvedere Boulevard. Defendant J. C. Fair, however, had not

signed the lease agreement with Ms. Cotton. Defendant J. C. Fair called Ms. Johnson on July 6,

2005, between approximately 11:00 a.m. and 11:30 a.m. Ms. Johnson was glad to hear from him

and asked Defendant how he was doing. Defendant responded, “I’m okay,” and asked Ms. Johnson

if she was alone. Ms. Johnson acknowledged that she was by herself in the office, and Defendant

told her he was going to come by to see her. Ms. Johnson did not think the exchange was unusual.

Ms. Johnson stated that the office was equipped with a wrought iron door which could only

be unlocked from inside the office. Visitors to the office were monitored by a camera hooked up to

a television, but the television’s VCR had not yet been installed. Ms. Johnson said that many of the

tenants, including Defendant, paid their rent in cash. Ms. Johnson kept the day’s cash receipts in a

green bag which she either placed in her purse or in the top drawer of her desk. Ms. Johnson said

that on the day of the robbery, she had approximately $3,000 in cash.

Defendant knocked on the door approximately five to ten minutes after his telephone call,

and Ms. Johnson let him in. Defendant gave Ms. Johnson one hundred dollars toward his overdue

rental payment. Ms. Johnson wrote him a receipt and noticed on the television screen that someone

was standing outside the office. Ms. Johnson stated the person was wearing a long gray jacket, a

long skirt, and what appeared to be a purse strap over one shoulder. Ms. Johnson said that she

thought the person was an old lady from the attire the person wore. Ms. Johnson said that she

continued to talk to Defendant as she walked to the door and opened it, but Defendant never said

anything. Ms. Johnson stated that as soon as she opened the door, a man pulled a scarf back

revealing a gun, and he put the gun to her head. Ms. Johnson put her hands up in the air. The man

said, “[W]ell you know what I’m here for, get your ass in your office.”

Defendant was still sitting in his chair. Ms. Johnson began to back up, and Defendant stood

up. Defendant told Ms. Johnson, “[L]et’s go in the office, Evelyn.” Ms. Johnson said that there was

no interaction between Defendant and the man with the gun. The man took the deposit bag out of

Ms. Johnson’s purse, and then pointed the gun at Ms. Johnson. Ms. Johnson stated that Defendant

moved in front of her and told the man that he was not going to let him hurt Ms. Johnson. The man

made Defendant and Ms. Johnson go into the bathroom, and then he left through the office’s back

door with Ms. Johnson’s purse and the deposit bag. Ms. Johnson said that she was very afraid

during the incident.

Ms. Johnson stated that she was able to get a good look at the man’s face before he pulled

a scarf down over his head. At trial, Ms. Johnson identified Defendant Krederick Fair, Defendant

J. C. Fair’s brother, as the man with the gun.

Ms. Johnson called 911. When Defendant J. C. Fair returned to the office, Ms. Johnson told

him that the police had warned her not to touch anything. Ms. Johnson said that Defendant J. C. Fair

took his tee shirt off, wiped off the doorknob of the back door, and then closed the back door with

his tee shirt. Ms. Johnson told the police about what Defendant J. C. Fair had done, but Ms. Johnson

did not think anything about the incident at the time. Ms. Johnson gave a description of the

perpetrator to the investigating officers. Ms. Johnson described the gun as “big” with a brown

handle and a “banana clip.” Ms. Johnson said that the gun was equipped with a sight, and that

Defendant Krederick Fair had pulled the scarf back over the sight. The State introduced the AK-47

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rifle later found in Ms. Cotton’s apartment for identification purposes only. Ms. Johnson said that

the rifle was similar to the one used in the robbery except the rifle introduced at trial was missing

its stock and strap.

On July 7, 2005, Ms. Johnson received a telephone call from Ms. Cotton which prompted

Ms. Johnson to call the police. Ms. Johnson rode with the police officers to Ms. Cotton’s apartment

which was her usual procedure when a tenant reported a problem. Ms. Cotton told Ms. Johnson that

her front door had been kicked in. Ms. Johnson stated that the apartment had been ransacked. Ms.

Johnson said that she screamed when the officers found a gun matching the one used by Defendant

Krederick Fair during the robbery.

Ms. Johnson stated that there was an unobstructed crawl space above the apartments in the

complex. Ms. Johnson stated that Defendant J. C. Fair was discovered by police officers in the crawl

space above the apartment next to Ms. Cotton’s apartment.

On cross-examination Ms. Johnson stated that she had known Defendant J. C. Fair

approximately one and one-half years. Ms. Johnson said that she would join Defendant and the other

residents to watch basketball on the clubhouse’s television approximately twice a month. Ms.

Johnson said that Defendant J. C. Fair “was [her] hero for the day,” because he stepped in front of

her when Defendant Krederick Fair raised his gun toward her. Ms. Johnson stated that Defendant

J. C. Fair peeked into Ms. Johnson’s office from the bathroom to see if the perpetrator had left the

premises. Defendant J. C. Fair then ran out the back door after the perpetrator. Defendant J. C. Fair

returned and told Ms. Johnson that the perpetrator had driven away in a green car.

Sergeant Dan Switzer took Ms. Johnson’s statement on July 7, 2005. Ms. Johnson described

the perpetrator as a slimly built African-American male, approximately five feet, seven inches to five

feet, nine inches tall, and between twenty-five and thirty years old. Ms. Johnson also said that the

perpetrator had “a big nose and a square face.” Sergeant Switzer stated that he and his partner drove

by the residence of Defendant Krederick Fair’s girlfriend on July 8, 2005, and observed a man

running from the apartment. Sergeant Switzer said that Defendant Krederick Fair turned himself in

to the investigating officers two days later.

Officer Teresa Wortham, with the Memphis Police Department, was dispatched to the

Lincoln Apartments on July 6, 2005, in response to Ms. Johnson’s 911 call. Officer Wortham

described Ms. Johnson as “hysterical, shaken up, crying.” Officer Wortham learned that the

perpetrator had recently left the premises and put out a broadcast with the information she had

gathered to that point.

On cross-examination, Officer Wortham acknowledged that Ms. Johnson told her that the

perpetrator appeared to be a woman, and that she only saw half of the perpetrator’s face. Officer

Wortham stated that she did not recollect Ms. Johnson saying that Defendant J. C. Fair had wiped

the back door down with his tee shirt. Officer Wortham said that she interviewed Defendant J. C.

Fair at the crime scene. According to Officer Wortham’s report of the interview, Defendant J. C.

Fair stated:

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that he observed the male black with a mask over half his face pull out a large gun,

shotgun, an AK-47, and demanded he and complainant get into the bathroom at

which . . . time the witness advised he then jumped in front . . . of the complainant

and stated I’m not going to let you hurt her.”

Officer Wortham said that she was one of the officers dispatched to Ms. Cotton’s apartment

on July 7, 2005 at approximately 1:30 p.m. (before Ms. Cotton reported the break-in of her

apartment). Officer Wortham said that Ms. Johnson was also present when she arrived. Officer

Wortham stated that Defendant J. C. Fair was arrested and taken into custody. The other

investigating officers searched the apartment but did not find a weapon. On redirect examination,

Officer Wortham stated that she did not personally observe any of the investigating officers look

under the mattress of Ms. Cotton’s bed.

Officer Donald E. Fields, Jr., with the Memphis Police Department, was dispatched to 1171

North Belvedere at the Lincoln Apartments on July 7, 2005, based on a report that the suspect in the

robbery on July 6, 2005, was hiding at that address. An African-American woman answered the

door and initially told Officer Fields that she was alone. The woman then admitted that the suspect

was hiding in the attic. The officers removed Defendant J. C. Fair from the attic and arrested him

in connection with the robbery the day before.

Officer Fields stated that he was familiar with a semiautomatic AK-47. Officer Fields said

that the weapon was usually equipped with a stock, but the stock could be removed. A sling could

also be fastened to the gun, and the sling could be removed in approximately thirty seconds or less.

Officer Fields stated that users of that type of weapon often used tape or padding to hold the weapon

together when the stock was removed.

On cross-examination, Officer Fields said that he did not recollect why the report reflected

that the officers were responding to “an armed party call.” Officer Fields reiterated that the purpose

of the call was to arrest a suspect in the robbery which occurred on July 6, 2005. Officer Fields said

that he conducted a routine pat down search of Defendant J. C. Fair after he was arrested, but he had

no present recollection of whether the other officers searched the apartment.

Officer Tyont Shabazz, with the Memphis Police Department, testified that he was

dispatched to 1171 North Belvedere on a burglary call on July 7, 2005, after Defendant was arrested

and taken into custody. The victim, Ms. Cotton, and the apartment complex’s manager were waiting

outside the apartment. Ms. Cotton told Officer Shabazz that someone had entered her apartment and

stolen money and jewelry. Officer Shabazz stated that a search of the apartment revealed an AK-47

rifle, serial number AM304282, hidden between the mattress and box springs of a bed. Banana clips

were found underneath the cushion of a chair in the living room. On cross-examination, Officer

Shabazz stated that he did not detect signs of a forced entry into the apartment.

Officer Lavern Jones, with the Memphis Police Department, testified that he dusted Ms.

Johnson’s office for fingerprints but was unable to find any usable prints. Francis Carpenter testified

that he was responsible for the chemical processing of evidence recovered by the Memphis Police

Department. Mr. Carpenter stated that he was unable to isolate any fingerprints on the AK-47 rifle.

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The State rested its case-in-chief, and Defendant Krederick Fair presented his defense.

Officer Ken Fox, with the Memphis Police Department, testified that he responded to a dispatcher’s

call about an armed party or suspicious person at the Lincoln Apartments on July 7, 2005. Officer

Fox stated that he met Ms. Johnson at her office. Officer Fox said that Ms. Johnson had been the

victim of a robbery, and she provided the address of the apartment in which she believed the

perpetrator of the robbery was hiding. Officer Fox knocked on the apartment door which was

answered by an African-American woman. Officer Fox searched the interior of the apartment but

did not find anyone. Eventually, he learned that the suspect, Defendant J. C. Fair, was hiding in the

attic. Officer Fox talked Defendant J. C. Fair into surrendering, and he was arrested. On

cross-examination, Officer Fox stated that he did not search between the mattress and boxsprings

of the bed in the bedroom.

II. Prosecutorial Vindictiveness

Relying on State v. Phipps, 959 S.W.2d 538 (Tenn. 1997), Defendant J. C. Fair argues that

the trial court erred in denying his motion to dismiss the indictment against him on the basis of

prosecutorial vindictiveness. Defendant J. C. Fair contends that his re-indictment on the greater

charge of aggravated robbery after he decided not to accept the State’s offer of settlement based on

a charge of facilitation of aggravated robbery and after he had, in the State’s view, testified

unfavorably in an unrelated case, created a presumption of vindictiveness which the State failed to

overcome by clear and convincing evidence.

At the hearing on Defendant J. C. Fair’s motion to dismiss, the prosecutor stated that he was

assigned the case after Defendant J. C. Fair had been indicted on the charge of facilitation of

aggravated robbery. The prosecutor reviewed the file and concluded that the initial charge pursued

by the previous prosecutor assigned to the case was erroneous in light of the theory of criminal

responsibility. The prosecutor telephoned trial counsel and informed him that he was going to seek

a new indictment on the charge of aggravated robbery. The prosecutor, however, told trial counsel

that he would agree to settle the current charge in exchange for Defendant J. C. Fair’ s entry of a plea

of guilty to facilitation of aggravated robbery, if Defendant J. C. Fair accepted the offer before the

case was again presented to the grand jury. The prosecutor stated that Defendant J. C. Fair did not

respond to the State’s offer of settlement, and he was re-indicted for aggravated robbery.

The trial court found no evidence that the prosecutor acted in a vindictive manner. The trial

court stated that:

it appears to me in this case and [the prosecutor’s] intention all along was to resubmit

this and he gave [Defendant J. C.] Fair an opportunity to benefit himself of the lesser

charge. He chose not to do that. So I don’t see that this was done in a vindictive

manner by [the prosecutor]. It appears to me that it was done based upon his

evaluation of the case so I’m going to deny the motion to dismiss the indictment.

In North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S. Ct. 2072, 2080 (1969), the United

States Supreme Court held that it is a violation of basic due process to punish a person because he

had done what the law plainly allows. The defendant in Pearce successfully appealed his original

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conviction and then later received a greater sentence after retrial and another conviction. While

concluding that the Constitution does not bar the imposition of a more severe sentence after retrial,

the Court held that the Due Process Clause of the Fourteenth Amendment prevents increased

sentences which are actually or likely motivated by a vindictive desire to punish a defendant for the

exercise of the right to appeal or collaterally attack his or her first conviction. Id. at 725. “The rule

announced in Pearce has been interpreted to create a rebuttable presumption of vindictiveness which

may be overcome only by objective information in the record which justifies the increased sentence.”

Phipps, 959 S.W.2d at 541 (citing United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485,

2489 (1982)).

Applying the analysis of Supreme Court precedent, the Phipps court held that:

even in the absence of proof of actual bad faith or malice, a rebuttable presumption

of prosecutorial vindictiveness may arise if the circumstances of a case pose a

“realistic likelihood” of prosecutorial retaliation. After a defendant has raised the

issue of vindictiveness, the trial court must review the circumstances of record and

decide whether the prosecutor’s actions give rise to a realistic likelihood of

prosecutorial retaliation. In assessing whether a “realistic likelihood” of

prosecutorial retaliation exists, courts must consider whether the right asserted by the

defendant would result in duplicative expenditures of prosecutorial resources, or

require the State to do over again what it thought it had already done correctly once.

Goodwin, 457 U.S at 383, 102 S. Ct. at 2494. When the circumstances demonstrate

that the prosecutor has “a personal stake” or an interest in self vindication, or when

institutional biases militate against retrial of a decided question, the balance weighs

in favor of recognizing the presumption. Id. Likewise the presumption is especially

warranted if the prosecutorial decision to increase the charge or sentence is made

after an initial trial is completed rather than in a pretrial context. When application

of these factors to the circumstances of a case reveal the existence of a realistic

likelihood of prosecutorial retaliation, Pearce applies. The presumption is not,

however, absolute. Once the presumption of vindictiveness has been raised, the

burden shifts to the State to rebut it by presenting clear and convincing evidence

which demonstrates that the prosecutor’s decision was motivated by a legitimate

purpose. Finally, in attempting to overcome the presumption, the prosecutor is not

limited to evidence which arose after the original sentencing proceedings, so long as

the evidence constitutes “objective information ... justifying the increased sentence.”

[Texas v.] McCullough, 475 U.S. [134], 142, 106 S. Ct. [976], 981 [1986], quoting

Goodwin, 457 U.S. at 374, 102 S. Ct. at 2489.

Phipps, 959 S.W.2d at 546.

In Phipps, the defendant successfully appealed his conviction of first degree murder and was

granted a new trial. The State did not seek the death penalty in the first trial. Upon remand, the

State filed a notice of intention to seek the death penalty, and the defendant moved to strike the

notice, arguing that principles of due process and double jeopardy precluded the State from seeking

the death penalty when the State did not seek the death penalty at the initial trial. Id. at 539. The

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trial court granted the defendant’s motion, and the State appealed pursuant to Rule 9 of the

Tennessee Rules of Appellate Procedure. Id. at 540. The Phipps court, after concluding that the

circumstances of the case gave rise to a rebuttable presumption of vindictiveness, remanded the case

for a hearing in which the State would be permitted to present evidence rebutting the presumption.

Id. at 547.

Both Phipps and Pearce involved actions taken by the State after conviction and upon retrial

during which the State sought to have a greater sentence imposed on the defendant. However, as

recognized in Godwin and Phipps, there is a distinction between pre-trial and post-trial conduct on

the part of the State. Godwin, 457 U.S. at 382; Pearce, 959 S.W.2d at 546. As the Supreme Court

cautioned in Godwin:

[t]here is good reason to be cautious before adopting an inflexible presumption of

prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for

trial, the prosecutor may uncover additional information that suggests a basis for

further prosecution or he simply may come to realize that information possessed by

the State has a broader significance. At this stage of the proceedings, the prosecutor’s

assessment of the proper extent of prosecution may not have crystallized. In contrast,

once a trial begins-and certainly by the time a conviction has been obtained-it is

much more likely that the State has discovered and assessed all of the information

against an accused and has made a determination, on the basis of that information,

of the extent to which he should be prosecuted. Thus, a change in the charging

decision made after an initial trial is completed is much more likely to be improperly

motivated than is a pretrial decision.

Godwin, 457 U.S. at 381, 102 S. Ct. at 2492.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978), the defendant was indicted

on the charge of uttering a forged instrument which was subject to a sentence range of between two

and ten years. Id. at 359, 98 S. Ct. at 665. Plea negotiations commenced during which the State

offered to recommend a sentence of five years in exchange for the defendant’s plea of guilty. The

State also informed the defendant that if he chose to proceed to trial, the State would return to the

grand jury to seek an indictment under the Kentucky Habitual Criminal Act, which carried a

mandatory sentence of life imprisonment, based on the defendant’s two prior felony convictions.

Id. at 358-59, 98 S. Ct. at 365. The defendant chose not to enter a plea of guilty, and the State

obtained an indictment charging him under the Habitual Criminal Act. Id. at 359, 98 S. Ct. at 666.

The Supreme Court noted that it was “not disputed that the recidivist charge was fully justified by

the evidence, that the prosecutor was in possession of the evidence at the time of the original

indictment, and that [the defendant’ s] refusal to plead guilty to the original charge was what led to

his indictment under the habitual criminal statute.” Id.

The Supreme Court observed that in Pearce “the Court was dealing with the State’s unilateral

imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his

original conviction--a situation ‘very different from the give-and-take negotiation common in plea

bargaining between the prosecution and defense, which arguably possess relatively equal bargaining

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power.’” Id. at 363, 98 S. Ct. at 668. The due process violation in cases such as Pearce “lay not in

the possibility that a defendant might be deterred from the exercise of a legal right, but rather in the

danger that the State might be retaliating against the accused for lawfully attacking his conviction.”

Id. (internal citations omitted). However, “in the ‘give-and-take’ of plea bargaining, there is no such

element of punishment or retaliation so long as the accused is free to accept or reject the

prosecution’s offer.” Id.

The Supreme Court concluded:

[t]here is no doubt that the breadth of discretion that our country’s legal system vests

in prosecuting attorneys carries with it the potential for both individual and

institutional abuse. And broad though that discretion may be, there are undoubtedly

constitutional limits upon its exercise. We hold only that the course of conduct

engaged in by the prosecutor in this case, which no more than openly presented the

defendant with the unpleasant alternatives of forgoing trial or facing charges on

which he was plainly subject to prosecution, did not violate the Due Process Clause

of the Fourteenth Amendment.

Id. at 365, 98 S. Ct. at 669.

The original indictment, which often begins plea negotiations, “does not necessarily define

the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate

charges already brought in an effort to save the time and expense of trial, a prosecutor may file

additional charges if an initial expectation that a defendant would plead guilty to lesser charges

proves unfounded.” Goodwin, 457 U.S. at 380, 102 S. Ct. at 2492.

In the case sub judice, Defendant was initially indicted on the charge of facilitation of

aggravated robbery. The prosecutor assigned to the case was changed, and after his review, the

newly assigned prosecutor decided that the circumstances of the case supported an indictment of

aggravated robbery under a theory of criminal responsibility. The prosecutor informed Defendant’s

trial counsel that he intended to seek re-indictment for the greater charge but extended Defendant

the opportunity to enter a plea of guilty to the lesser charge. Defendant chose to proceed to trial, and

the prosecutor obtained the new indictment. The Bordenkircher Court “made clear that the mere fact

that a defendant refuses to plead guilty and forces the government to prove its case is insufficient

to warrant a presumption that subsequent changes in the charging decision are unjustified.”

Goodwin, 457 U.S. at 383, 102 S. Ct. at 2493.

Based on our review, we conclude that the circumstances of the case do not “pose a ‘realistic

likelihood’ of prosecutorial retaliation” which would give rise to a presumption of prosecutorial

vindictiveness. Pearce, 959 S.W.2d at 546. Because the presumption is not applicable, for us to find

prosecutorial vindictiveness in this pretrial context, Defendant would have to prove actual

vindictiveness. Goodwin, 457 U.S. at 384, 102 S. Ct. at 2494.

Neither at the hearing on his motion to dismiss nor in his brief on appeal does Defendant

point to any vindictiveness on the part of the State other than a general statement, without specificity

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or context, that Defendant testified “unfavorably” in an unrelated trial and that the State obtained a

new indictment on the charge of aggravated robbery. Without more, we conclude that Defendant

has failed to show actual vindictiveness of the part of the State. Defendant J.C. Fair is not entitled

to relief on this issue.

III. Motion to Suppress

Defendant J. C. Fair argues that the trial court erred in denying his motion to suppress the

AK-47 rifle found in Ms. Cotton’s apartment as a result of a warrantless search of the apartment.

Defendant apparently contends that because Ms. Cotton was not called to testify at trial, the State

failed to establish that the search was consensual. Alternatively, Defendant submits that the search

violated Fourth Amendment principles because the extent of the search, that is, finding the rifle

under the mattress and the banana clips under a chair cushion, exceeded the scope of the consent to

search.

At the suppression hearing, Officer Shabazz testified that he responded to a dispatcher’s call

concerning a burglary at 1171 North Belvedere Boulevard on July 7, 2005. Officer Shabazz met Ms.

Cotton, the victim, who told him that her home had been broken into and that money and jewelry

had been taken. Officer Shabazz proceeded to process the crime scene which involved looking for

anything the perpetrator might have left behind. Officer Shabazz stated that Ms. Cotton was present

during the search and never put any limitation on the search. Officer Shabazz found an AK-47 rifle

between the mattress and box springs of a bed. Officer Shabazz stated that he did not initially know

the relevance of the rifle until he walked outside with the rifle, and Ms. Johnson said, “That’s the

gun.”

On cross-examination, Officer Shabazz said that the mattress was pushed back on the box

springs and was “off center.” Officer Shabazz acknowledged that the rifle was not visible until the

mattress was lifted up. Officer Shabazz asked Ms. Cotton if she owned the rifle, and Ms. Cotton said

that it belonged to her boyfriend. Officer Shabazz checked the serial number of the rifle and

determined that it had been stolen. Officer Shabazz said that Ms. Cotton told him that Defendant

J. C. Fair had been arrested earlier that day for the robbery of Ms. Johnson. Ms. Cotton said that her

home was burglarized while she was at the police station giving a statement about the incident.

Officer Shabazz did not have a present recollection of whether he learned about Defendant J. C.

Fair’s arrest before or after the AK-47 rifle was found.

At the conclusion of the suppression hearing, the trial court found that Ms. Cotton, as

homeowner, voluntarily consented to the search of the apartment and denied Defendant’s motion to

suppress.

Under both the Fourth Amendment to the United States Constitution and Article I, Section

7 of the Tennessee Constitution, a warrantless search of a person’s home is presumed unreasonable

unless the search falls within one of the narrowly defined exceptions to the warrant requirement.

State v. Bartram, 925 S.W.2d 227, 229-230 (Tenn. 1996) (citing Coolidge v. New Hampshire, 403

U.S. 443, 454-455, 91 S. Ct. 2022, 2032 (1971)). A well-settled exception to the warrant

requirement is a search conducted pursuant to a voluntary and intelligent consent either by the

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individual whose property is searched, Bartram, 925 S.W.2d at 230 (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973)), or by a third party who possesses

common authority over the premises, id. at 230-231 (citing United States v. Matlock, 415 U.S. 164,

171, 94 S. Ct. 988, 993 (1974)). The State has the burden of establishing that the search was

conducted pursuant to this exception. Id. If the State fails to satisfy its burden, the exclusionary rule

may operate to bar the admissibility of any evidence obtained directly or derivatively from the

unconstitutional search. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416 (1963);

State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992).

For consent to pass “’constitutional muster,’” it must be “’unequivocal, specific, intelligently

given, and uncontaminated by duress or coercion.’” State v. Simpson, 968 S.W.2d 776, 784 (Tenn.

1998) (quoting State v. Brown, 836 S.W.2d 530, 547 (Tenn.1992)). The question of whether a

particular consent to search was “voluntary” is fact-specific to each case. State v. Cox, 171 S.W.3d

174, 185 (Tenn. 2005). In evaluating the voluntariness of consent, factors to consider may include

(1) the time and place of the encounter; (2) whether the encounter was in a public or secluded place;

(3) the number of officers present; (4) the degree of hostility; (5) whether weapons were displayed;

(6) whether consent was requested; and (7) whether the consenter initiated contact with the police.

Id. (citing 79 C.J.S. Searches and Seizures § 119(b) (1995 & Supp. 2004); State v. Carter, 16 S.W.3d

762, 769 (Tenn. 2000)).

“[T]he consent of one who possesses common authority over premises or effects is valid as

against the absent, non-consenting person with whom that authority is shared.” State v. Bartrum,

925 S.W.2d 227, 230-31 (Tenn. 1996) (citing United States v. Matlock , 415 U.S. at 171, 94 S. Ct.

at 993). The United States Supreme Court has defined common authority as the “mutual use of the

property by persons generally having joint access or control for most purposes, so that it is

reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his

own right and that the others have assumed the risk that one of their number might permit the

common area to be searched.” Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7.

This court has previously concluded that valid consent exists if (1) the third party in fact had

common authority or (2) a reasonable person, given the facts and circumstances available to the

police, would have concluded “that the consenting party had authority over the premises.” State v.

Ellis, 89 S.W.3d 584, 593 (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 2801

(1990)).

On review, an appellate court may consider the evidence adduced at the suppression hearing

as well as at trial in determining whether the trial court properly denied a pretrial motion to suppress.

State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). A trial court’s factual findings on a motion

to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990).

Questions about the “credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.”

Odom, 928 S.W.2d at 23. The application of the law to the facts as determined by the trial court is

a question of law which we review de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629

(Tenn. 1997).

-10-

At trial, Ms. Johnson testified that Defendant J. C. Fair had not signed the lease agreement

with Ms. Cotton, but he lived with Ms. Cotton, and it appears from the record that Defendant J. C.

Fair contributed to the rental payments. Ms. Cotton’s name, however, was listed on the rental

agreement with the apartment complex as the lessee, and Ms. Johnson testified that Ms. Cotton

considered the apartment her home even when Defendant J. C. Fair was not present. We conclude

that Ms. Cotton had “common authority” over the apartment.

Officer Shabazz testified at the suppression hearing that Ms. Cotton initiated the contact with

the police officers, and he responded to Ms. Cotton’s report of a burglary at her home. Ms. Cotton

met Officer Shabazz in front of the apartment and allowed Officer Shabazz to enter the premises.

Ms. Cotton was present as Officer Shabazz searched the apartment for anything the burglar might

have left behind. There is nothing in the record to indicate any hostility or display of weapons.

Based on our review of the totality of the circumstances, we conclude that the evidence does not

preponderate against the trial court’ s finding that Ms. Cotton voluntarily consented to the search of

her apartment.

A search, however, must not exceed the scope of the consent given. State v. Watson, 227

S.W.3d 622, 644 (Tenn. Crim. App. 2006). “Any express or implied limitations regarding the time,

duration, area, or intensity of police activity necessary to accomplish the stated purpose of the search

and the express object of the search are relevant considerations in determining the scope of the

consent to search.” Id. (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801 (1991)). “The

scope of consent is not based on the subjective intentions of the consenting party or the subjective

interpretations of the searching officer.” State v. Troxell, 78 S.W.3d 866, 871-72 (Tenn. 2002).

Instead, the objective standard of a reasonable person is applied in determining the scope of consent.

Id. at 872.

In this instance, Ms. Cotton initiated contact with the police after her home was burglarized,

and she cooperated during the search of her residence for any evidence that may have identified the

perpetrator. The trial court credited Officer Shabazz’s testimony that Ms. Cotton never placed any

limitations on the search or withdrew her consent to the search. Based on our review, we conclude

that the trial court did not err in denying Defendant’s motion to suppress the AK-47 rifle and banana

clips found in Ms. Cotton’s apartment. Defendant J. C. Fair is not entitled to relief on this issue.

IV. Evidentiary Ruling

Defendant J. C. Fair argues that the trial court erred in allowing the weapon found in Ms.

Cotton’s apartment to be introduced into evidence because its physical appearance did not match Ms.

Johnson’s trial testimony of the weapon used during the robbery. The weapon found in Ms. Cotton’s

apartment did not have a strap attached and the stock was missing. As such, Defendant contends that

the weapon was not relevant to a material issue at trial. Alternatively Defendant contends that any

probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See

Tenn. R. Evid. 401, 403.

At trial, the State initially introduced the weapon for identification purposes only without a

contemporaneous objection by Defendant J. C. Fair. Defendant J. C. Fair’s counsel then

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cross-examined Ms. Johnson extensively as to the differences between the weapon she observed

during the robbery and the weapon found in Ms. Cotton’s apartment. During Officer Shabazz’s

direct testimony, the State moved to introduce the weapon as an exhibit at trial, again without

objection by Defendant J. C. Fair. Trial counsel for Defendant Krederick Fair, however, did object,

and his objection was overruled by the trial court. Defendant Krederick Fair does not appeal this

ruling.

Failure to contemporaneously object to the introduction of an exhibit at trial constitutes

waiver of this issue for purposes of appeal. Tenn. R. App. P. 36(a); see State v. Antonio George, No.

E2005-02013-CCA-R3-CD, 2006 WL 3371238, at *9 (Tenn. Crim. App., at Knoxville, Sept. 26,

2006), no. perm. to appeal filed (concluding that the defendant had waived his issue concerning the

admissibility of evidence notwithstanding objection by his co-defendant’s counsel). Moreover,

waiver aside, we conclude that Defendant is not entitled to relief on this issue.

Tennessee Rule of Evidence 401 provides that “’[r]elevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence. “ Generally, relevant

evidence is admissible, while irrelevant evidence is inadmissible. Tenn. R. Evid. 402. However,

relevant evidence may be excluded if its probative value is “substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. “The

admissibility of evidence under Rule 403 of the Tennessee Rules of Evidence is a matter within the

trial court’s discretion and will not be reversed on appeal absent an abuse of that discretion.” State

v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State v. Dubose, 953 S.W.2d 649,

652 (Tenn. 1997)).

Both Defendants were charged with aggravated robbery which required the State to prove

that the offense was committed with a deadly weapon. See T.C.A. § 39-13-402(1). Ms. Johnson

testified that an AK-47 rifle was used during the offense. An AK-47 rifle was found in Defendant

J. C. Fair’s apartment the day after the robbery. The trial court found that the evidence was relevant,

and any discrepancy between Ms. Johnson’s description at trial of the weapon used during the

robbery, and the actual weapon recovered went to the weight the jury may choose to assign the

evidence. Based on our review, we conclude that the trial court did not err in admitting the AK-47

weapon into evidence as an exhibit. Defendant J. C. Fair is not entitled to relief on this issue.

V. Sufficiency of the Evidence

Both Defendants challenge the sufficiency of the convicting evidence, essentially focusing

on Ms. Johnson’s credibility. It was Defendants’ theory at trial that Ms. Johnson planted the AK-47

in Ms. Cotton’s apartment. Defendants point to the fact that Officer Shabazz testified that there was

no sign of forced entry, and the apartment had not been ransacked, which testimony was contrary

to Ms. Johnson’s testimony. Defendants also submit that Ms. Johnson had keys to all of the

apartments, and the weapon was found just hours after police officers arrested J. C. Fair and

throughly searched the apartment for weapons to no avail. Additionally, Defendant J. C. Fair points

to other inconsistencies in Ms. Johnson’s testimony such as her initial description of the perpetrator

as a man wearing a tee shirt and blue jeans.

-12-

When a defendant challenges the sufficiency of the convicting evidence, we must review the

evidence in a light most favorable to the prosecution in determining whether a rational trier of fact

could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Once a jury finds a defendant guilty, his

or her presumption of innocence is removed and replaced on appeal with a presumption of guilt.

State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this

presumption, and the State is entitled to the strongest legitimate view of the evidence along with all

reasonable inferences which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts and drawn any

reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Questions concerning the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues raised by the evidence are resolved by the trier of fact and not this court. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of guilt predicated

upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A conviction for aggravated robbery, as indicted in this case, requires proof beyond a

reasonable doubt that the defendant committed an “intentional or knowing theft of property from the

person of another by violence or putting the person in fear . . . accomplished with a deadly weapon.”

T.C.A. § 39-13-402(a)(1). A person is criminally responsible for the conduct of another if, “[a]cting

with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results

of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the

offense.” T.C.A. § 39-11-402(2).

Viewing the evidence in a light most favorable to the State, Ms. Johnson testified that

Defendant J. C. Fair telephoned her to ascertain whether she was alone in the office. Defendant J.

C. Fair arrived shortly thereafter and made a partial payment toward his past due rent. Ms. Johnson

saw an individual wearing a jacket and skirt arrive at the office door. Ms. Johnson opened the door,

and the individual entered the office, pointed an AK-47 at Ms. Johnson, and directed her to go into

the office. The individual took Ms. Johnson’s purse and the deposit bag containing approximately

$3,000 in cash. Ms. Johnson testified that she was very afraid during the offense. Ms. Johnson

identified Defendant Krederick Fair, Defendant J. C. Fair’s brother, as the man who held the rifle

on her and took the cash receipts from her office. Ms. Johnson testified that Defendant J. C. Fair

wiped off the doorknob of the office’s back door, through which Defendant Krederick Fair had

exited, with his tee shirt, and then closed the back door with his tee shirt. An AK-47 with its strap

and stock missing was found in Defendant J. C. Fair’s apartment the following day.

It was the jury’s prerogative to resolve any inconsistencies in Ms. Johnson’s testimony and

assess her credibility. It was also the jury’s prerogative to consider the evidence presented

concerning the facts and circumstances surrounding the discovery of the weapon in Ms. Cotton’s

apartment. Based on our review, we conclude that a rational trier of fact could find beyond a

reasonable doubt that Defendant Krederick Fair was guilty of committing the offense of aggravated

robbery, and Defendant J. C. Fair was guilty of aggravated robbery under a theory of criminal

responsibility. Defendants are not entitled to relief on this issue.

-13-

VI. Jury Instructions

Both Defendants argue that the trial court erred in its instructions to the jury on the offense

of facilitation of aggravated robbery as well as facilitation of the lesser included offenses of

aggravated robbery.

The trial court instructed the jury concerning the elements of aggravated robbery, robbery,

aggravated assault, theft of property, and assault. The trial court then instructed:

Any person who commits the offense of facilitation of a felony is guilty of a crime.

For you to find the defendant guilty of this offense, the State must have proven

beyond a reasonable doubt the existence of the following essential elements: that the

defendant knew that another person intended to commit a specific felony but did not

have the intent to promote or assist the commission of the offense or to benefit in the

proceeds or results of the offense; that the defendant furnished substantial assistance

to that person in the commission of the felony; and that the defendant furnished such

assistance knowingly.

Defendants argue that the trial court’s generic instruction on facilitation, without referencing

a specific felony, misled the jury and did not fairly submit the legal issues. Defendants point to the

fact that during deliberations, the jury posed two questions on separate occasions which, in

Defendants’ views, highlight the jury’s confusion over the facilitation instruction.

In criminal cases, a defendant has a right to a correct and complete charge of the law. State

v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The failure to do so deprives the defendant of the

constitutional right to a jury trial and subjects the erroneous jury instruction to harmless error

analysis. Id. at 433-34. A jury instruction is considered “prejudicially erroneous if it fails to fairly

submit the legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944

S.W.2d 346, 352 (Tenn. 1997). In evaluating claims of error in the jury charge, this court must

review the charge in its entirety and read it as a whole. State v. Leach, 148 S.W.3d 42, 58 (Tenn.

2004).

A panel of this Court recently concluded that a jury instruction like the one provided by the

trial court in the case sub judice did not fail to fairly submit the legal issues or mislead the jury.

State v. Latisha Jones, No. W2005-02673-CCA-R3-CD, 2007 WL 241023, at *9 (Tenn. Crim. App.,

at Jackson, Jan. 25, 2007). Moreover, as in Latisha Jones, the trial court in the present case further

instructed the jury that if they did not find the defendant guilty of aggravated robbery then they were

to proceed to consider the lesser included offenses of facilitation of aggravated robbery, robbery,

facilitation of robbery, aggravated assault, facilitation of aggravated assault, theft of property,

facilitation of theft of property, and assault.

During deliberations, the jury first asked, “please define facilitation of aggravated robbery.”

The trial court reread to the jury the previously provided instruction on facilitation. On the next

occasion, the jurors wrote, “there is no definition of facilitation of aggravated robbery.” The trial

court explained:

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and the general statute that I read to you says that in the body that I just read to you

says that the defendant knew that another person intended to commit a specific

felony. Well, the crime of facilitation of a felony is facilitation of the specific felony.

So when I define for you facilitation of aggravated robbery, it would mean that the

defendant knew that another person intended to commit an aggravated robbery but

did not have the intent to promote. The definition of aggravated robbery is included

in here.

The trial court repeated this explanation as to each of the lesser included offenses, and clearly

explained the elements of facilitation as to each specific offense included in the indictment. The

jurors indicated that they understood.

Based on our review of the jury instructions in their entirety, we conclude that the

instructions by the trial court fairly submitted the legal issues and did not mislead the jury.

Defendants are not entitled to relief on this issue.

VII. Denial of Mistrial based on Prosecutorial Misconduct

It was Defendants’ theory at trial that Ms. Johnson’s testimony was unreliable, and suggested

during closing arguments that Ms. Johnson “pinned” the robbery on Defendants and had the

opportunity and motive to plant evidence against them, that is, the AK-47 rifle. In response to

Defendants’ closing argument, the State noted in rebuttal that:

[n]o one is really – sounds like question[ing] her ability to identify that man. And

she stood here in court and said that’s the man that robbed me, all right. But it

sounds like, if I’m hearing this right, that she’s trying to set them up. Is that what

I’m hearing? Because they’ve got it backwards. They set her up. Is she framing

them? Think how stupid that is. Think how just on its face how stupid that is.

The State argued that if Ms. Johnson had intended to make up a fictitious robbery, she could

have described the assailants anyway she chose, and then the alleged perpetrators would never be

found. The State submitted, “Their whole theory of the case is just patently stupid. It’s stupid.”

At the close of the State’s argument, Defendant Krederick Fair’s trial counsel asked

permission to approach the bench and the following colloquy occurred:

[TRIAL COUNSEL]: Your, Honor, I move for a mistrial. That rebuttal

argument was completely improper. It characterized

us in a disparaging way. It thought it was borderline

unethical and I move for a mistrial.

THE COURT: Well, I’m not going to grant a mistrial, and I think it

was a little forceful but I don’t think it was directed at

attorneys. I think it was directed at the defense

theory. I’ll note your exception.

-15-

[TRIAL COUNSEL]: Thanks, Judge.

The bench conference concluded without trial counsel requesting a curative instruction, and

the judge proceeded to instruct the jury.

Initially, we observe that neither Defendant J. C. Fair nor Defendant Krederick Fair

contemporaneously objected to the State’s comments. See Tenn. R. App. P. 36(a); State v. Reid, 164

S.W.3d 286, 346 (Tenn. 2005) (noting that failure to make a contemporaneous objection to the

prosecutor’s comments during closing argument constituted waiver of the issue for purposes of

appellate review). Thus, Defendant J. C. Fair has waived appellate review of this issue. However,

Defendant Krederick Fair, despite the absence of a contemporaneous objection, did move for a

mistrial after the completion of the State’s closing argument.

A mistrial should be declared in a criminal trial only in the event of a “manifest necessity”

that requires such action. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). “The purpose for

declaring a mistrial is to correct damage done to the judicial process when some event has occurred

which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.

1996). The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn

that decision absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). In this

case, the trial judge found there was no manifest necessity requiring a mistrial. We agree.

Our supreme court has recognized that closing argument is a valuable privilege for both the

State and the defense, and that counsel is afforded wide latitude in presenting final argument to the

jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn. 1998). However, a party’s closing argument

“must be temperate, predicated on evidence introduced during the trial of a case, and must be

pertinent to the issues being tried.” State v. Middlebrooks, 995 S.W.2d 550, 568 (Tenn. 1999). A

party “must be given the opportunity to argue not only the facts in the record but any reasonable

inferences therefrom.” Id. (citing Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976)).

It has long been recognized that the “prosecution is not permitted to reflect unfavorably upon

defense counsel or the trial tactics employed during the course of the trial.” State v. Gann, 251

S.W.3d 446, 460 (Tenn. Crim. App. 2007) (citations omitted). A prosecutor is permitted, however,

to comment on the strength and believability of the defense theories. Hall, 976 S.W.2d at 158

(finding no abuse of discretion in the trial court overruling the defendant’s objections to the State’s

closing comments such as “’that’s not a reasonable alternative,’” and “’such a ridiculous position’”).

The State’s comments were made directly in response to the Defendants’ closing arguments

which questioned Ms. Johnson’s motivation during the sequence of events leading up to the charged

offense. The trial court explained to the jury before closing arguments that the arguments of counsel

are not evidence. Based on our review, we conclude that the trial court did not abuse its discretion

in finding no “manifest necessity” which would warrant a mistrial. Defendant Krederick Fair is not

entitled to relief on this issue.

VIII. Denial of Mistrial Based on Improper Testimony

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Defendant J. C. Fair argues that the trial court erred in denying his request for a mistrial

based on Ms. Johnson’s references during her cross-examination to his prior incarceration. At trial,

the following exchange occurred:

[J. C. FAIR’S COUNSEL]: And [Defendant J. C.] Fair is dating Qartisha and

that’s how you met him?

[MS. JOHNSON]: Right. Very good guy, at least I thought.

[J. C. FAIR’S COUNSEL]: And he moved in to the Lincoln Apartments, right?

[MS. JOHNSON]: He did and in a particular three bedroom unit and he

ended up going to jail and a – well, I’m sorry. I’m not

supposed to –

The trial court conducted a bench conference in the presence of but out of the hearing of the

jury during which the following colloquy occurred:

[J. C. FAIR’S COUNSEL]: I didn’t ask any reference – any reference to him

going to jail or anything like that, the jury disregard

that. I mean, that’s highly prejudicial.

THE COURT: You’ve lost me.

[J. C. FAIR’S COUNSEL]: Any reference to him going to jail or any kind of

criminal record whatsoever, I think that’s highly

prejudicial.

THE COURT: I thought she was talking about this time.

[K. FAIR’S COUNSEL]: No.

[J. C. FAIR’S COUNSEL]: No, she’s talking about that prior, prior.

THE COURT: Well, I didn’t –

[K. FAIR’S COUNSEL]: He asked a question how you know Quartisha Cotton

and she rambled into well[,] he had just gone to jail.

THE COURT: I mean, I didn’t understand it to be that but I’ll tell the

jury if you want me –

[K. FAIR’S COUNSEL]: Maybe they didn’t understand it. If he instructs them,

they’ll certainly understand it.

-17-

[J. C. FAIR’S COUNSEL]: Yeah.

THE COURT: Okay.

The bench trial was concluded and Ms. Johnson’s cross-examination resumed:

[J. C. FAIR’S COUNSEL]: So you met [Defendant J. C.] Fair through Quartisha.

And [Defendant J. C.] Fair was a good resident?

[MS. JOHNSON]: Yes, he was a very good little fellow.

[J. C. FAIR’S COUNSEL]: Okay. He – in fact, he donated a TV to the clubhouse,

correct?

[MS. JOHNSON]: No, he actually didn’t donate it. [Defendant] J. C.

[Fair] got ready to go to jail, and he wanted me to buy

the TV from him.

THE COURT: All right. Ladies and gentlemen, could I ask you to

step to your jury room for just a minute, please.

During the hearing out of the presence of the jury, the trial court requested that trial counsel

repeat his question to Ms. Johnson. In response to trial counsel’s question concerning whether

Defendant J. C. Fair had donated a television to the clubhouse, Ms. Johnson stated, “No, he got

ready to go to jail for some charges that he had gotten for – if I’m not mistaken, robbery or drugs or

something he told me and he sold the TV to us to pay his rent.”

The trial court agreed to give a curative instruction to the jury but observed that it did not feel

that Ms. Johnson’ s answer was unresponsive to trial counsel’s question. Both Defendants moved

for a mistrial, which motion was denied by the trial court. The trial court then instructed the jury as

follows:

Ladies and gentlemen, there was some reference in Ms. Johnson’s testimony about

[Defendant] J. C. Fair going to jail for something that is not connected with this case

whatsoever. My instructions to you are that has absolutely no bearing on this case

at all. You’re not to consider it for anything. It has no bearing with regard to the

facts of this case. You’re to try this case based upon the evidence and the facts that

deal with this case, and any reference to anything else other than that along the lines

of some kind of incarceration for any reason whatsoever has no bearing on this case.

Does everybody understand that? You may continue.

As previously noted, the decision of whether or not to grant a mistrial rests within the sound

discretion of the trial court. Smith, 871 S.W.2d at 672. A manifest necessity for a mistrial exists

when there is “no feasible alternative to halting the proceedings.” State v. Knight, 616 S.W.2d 593,

596 (Tenn. 1981). When determining whether a mistrial is necessary after a witness had injected

-18-

improper testimony, this Court has often considered the following factors: (1) whether the improper

testimony resulted from questioning by the state or was it a gratuitous declaration, (2) the relative

strength or weakness of the state’s case, and (3) whether the trial court promptly gave a curative

instruction. State v. Terrez Talley, Jevon Bryant, and Keith Ezell, No. W2003-02237-CCA-R3-CD,

2006 WL 2947435, at *13 (Tenn. Crim. App., at Jackson, October 16, 2006), perm. to appeal denied

(Tenn. Mar. 19, 2007) (citing State v. Larry Holmes, No. W2004-01576-CCA-R3-CD, 2005 WL

1656830, at *10 (Tenn. Crim. App., at Jackson, July 15, 2005), perm. to appeal denied (Tenn. Dec.

19, 2005); State v. Paul Hayes, No. W2001-02637-CCA-R3-CD, 2002 WL 31746693, at *4 (Tenn.

Crim. App., at Jackson, Dec. 6, 2002), perm.to appeal denied (Tenn. May 27, 2003)).

As for the first factor, neither of Ms. Johnson’s statements were elicited by the State. Ms.

Johnson’s first statement was gratuitously made, and Defendants decided not to have the trial court

issue a curative instruction. As the trial court indicated, it was not clear whether Ms. Johnson was

referring to Defendant J. C. Fair being confined because of his arrest for the current charge or for a

prior charge. The second statement was made in response to trial counsel’s question as to whether

Defendant J. C. Fair had donated a television set to the Lincoln Apartment’s clubhouse. Under the

second factor, we note that the State’s case rested primarily on Ms. Johnson’s eyewitness

identification of Defendants’ participation in the robbery and her trial testimony. Nonetheless, the

trial court gave a prompt curative instruction to the jury, and juries are presumed to follow the trial

court’s instructions. State v. Banks , 271 S.W.3d 90, 134 (Tenn. 2008) (citing State v. Young, 196

S.W.3d 85, 111 (Tenn. 2006); State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001)); see also State v.

Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about the

defendant’s prior incarceration did not create a manifest necessity for a mistrial because the trial

court gave a prompt curative instruction); State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.

1996) (holding that improper testimony about defendant’s prior bad acts did not create a manifest

necessity for a mistrial because trial court gave an immediate curative instruction).

Based on our review and under these circumstance, we conclude that the trial court did not

err by denying Defendant J. C. Fair’s request for a mistrial. Defendant is not entitled to relief on this

issue.

CONCLUSION

After a thorough review, we affirm the judgments of the trial court.

___________________________________

THOMAS T. WOODALL, JUDGE

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