The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MAY SESSION, 1998 September 22, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9707-CC-00265
)
Appellee, )
) FAYETTE COUNTY
V. )
)
) HON . JON K ERR Y BLA CKW OOD ,
COREY LEMONT PO WELL, ) JUDGE
)
Appe llant. ) (FIRST DEGREE MURDER)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL E. SCHOLL JOHN KNOX WALKUP
200 Jefferson Avenue, Suite 202 Attorney General & Reporter
Memphis, TN 38103
DOUGLAS D. HIMES
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenu e North
Nashville, TN 37243
ELIZABETH T. RICE
District Attorn ey Ge neral
CHRISTOPHER MARSHBURN
Assistant District Attorney General
302 M arket Stre et
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Corey Lemont Powell, appeals as of right from his conviction
in the Fayette County Circuit Court. Defendant was indicted on three counts,
including especially aggravated robbery, murder during the perpetration of a robbery,
and premeditated first degree murder. Following a jury trial, Defendant was
convicted of second d egree m urder, felony mu rder and especially aggravated
robbery. The trial court m erged th e seco nd deg ree mu rder con viction with the felony
murder conviction and sentenced Defendant to serve a life sentence for felony
murder concurrent with a sentence of fifteen (15) years for the especially aggravated
robbery conviction. Defendant submits the following issues for appellate review:
1) whether the trial cou rt erred in denying Defenda nt’s motio n to
suppre ss his state ment;
2) whether the trial court erred in refusing Defendant access to the
results of a polygraph test for use as evidence;
3) whethe r the trial cou rt erred by re fusing to suppress evidence of the
murde r weapo n and th e ballistics tes t;
4) whether the trial court erred in denying Defendant’s motion regarding
the striking of specific jurors and motion for a change of venue;
5) whether the tria l court erred in denyin g Defend ant’s motion for a
mistrial du e to adm ission of ev idence of Defen dant’s arre st;
6) wheth er the tr ial cou rt erred in refus ing to a dmit testimony regarding
Defe ndan t’s restricted access to the telephone during police
questioning;
7) whether the trial cou rt erred in overruling Defend ant’s motion for a
judgm ent of a cquitta l;
8) whether the trial court erred by refusing to charge lesser included
offenses of premeditated first degree murder; and
9) whether the trial court erred by allowing prosecutorial misconduct
during the trial.
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After a thorough review of the record an d the briefs in this ma tter, we affirm
the judgment of the trial court in all respects.
Bess ie Russell, wife of Don Russell, testified that he was the owner and
operator of Russell’s Grocery located in Hickory W ythe, a rura l area of Fa yette
County. The store had been open since April 1947. In May 1994, Don Russell was
seventy-four (74) ye ars old . Russ ell and his wife lived next door to the store, and
each morning he rose at 5:00 a.m. to op en the store. He went to the store to eat h is
breakfast and read the paper, then returned to the house with the newspaper for her
to read. The store was open from 5:00 a.m. until 5:30 p.m.
On May 27, 1994, Mrs. Russell awoke and discovered that her husband had
not yet returned with the newspaper. She walked to the store and found him lying
on his back in a pool of blood. Mrs. Russell called 911, and the victim was
transported by helicopter to a hospital in Memphis where he was pronounced dead.
She noticed that the cigar box was missing from the store and estimated the amount
of mon ey in the bo x to be be tween $ 800.00 and $1 200.00 .
Dr. O’Brien Sm ith testified that he perform ed the a utopsy of the victim. Dr.
Smith report ed tha t the victim died as a result of a near gun shot wound to the head,
and he rem oved a .22 ca liber bu llet fragment from the back of the victim’s brain.
From his examination, Dr. Smith determined that the gun fired at the victim was
between six (6) to tw elve (1 2) inch es from the victim ’s head at the time it was fired.
Bill Kelley, Sheriff of Fayette C ounty, testified that he led the investigation of
the victim’s murder. After arriving at Russell’s Grocery on May 27, 1994, at 6:30
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a.m., Sheriff Kelley de termine d that a cigar box containing approximately $1200.00
had been stolen from the store and that the re were no witnesses to the shooting of
the victim. On June 24, 1994, Ke lley interrogated a po tential suspect, Jerry
Coleman, but after a brief investigation, Coleman was eliminate d as a su spect. The
investigation, in She riff Kelley ’s word s, cam e to a “d ead e nd.” T wo yea rs later, in
April 1996, Kelley discovered that the Defendant had told some people within the
comm unity that he was responsible for the victim ’s mu rder. A lso, the Defe ndan t’s
nine-shot .22 caliber revolver was seized from him by police du ring the M id-South
Fair. After the revolver was recovered from the Memphis Police Department
property room, both the revolver and b ullet fragments from the victim’s brain were
sent for ba llistics testing.
Kelley interviewed the Defendant for the first time on May 1, 1996, advising
him that he was investigating the victim’s death and that they had recovere d the
Defe ndan t’s pistol. After reading Defendant his constitutional rights, the Defendant
signed a waiver of these rights and did not request an attorney or his parents to be
present during the interview. Defendant denied any involvement in either the
robbery or murd er of the victim, but did advise Kelley that Br yant P owell a nd Er in
Lucke tt were involved. The Defendant was released following that interview. After
further investigatio n, the De fendant was again picked up by the police for
questioning on May 3 or 4, 1996. After advising Defendant of his rights for a second
time, Kelley interviewed the Defendant on May 6, 1996. Defendant again denied his
involvement in the crime.
On May 7, 19 96, Sheriff Kelley wa s notified tha t the Defe ndant w anted to
speak with him. After Defendant was advised of his constitutional rights and signed
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a waiver form, h e aga in denied involvement in the murder and implicated his cousin,
“Big John,” fro m Me mphis . On Ma y 8, 1996 , Agent S cott W alley from the
Tennessee Bureau of Investigation came to interview the D efenda nt upon Sheriff
Kelley ’s request. Sheriff Kelley verified that the Defendant was never mistreated or
prom ised anything in exchange for his statement. Kelley also stated that he was
never informe d by eithe r the Defe ndant o r his paren ts that they wanted or had
retained an attorney, although Kelley spoke with Defendant’s parents several times
throughout the investigation.
Agent Walley testified that he advised Defendant of his constitutional rights.
During the first portion of the interview, Defendant denied involvement in the crime.
Following a lunch break, Defendant returned to the interview and gave a statement
to Agent Walley in which he admitted robbing and shooting the victim. Defendant
stated that he entered Russell’s Grocery at approximately 5:30 a.m. on May 27,
1994, with his nine-shot .22 caliber revolver in his right front pocket. He told the
victim to “give [him] the m oney a nd the re won ’t be no [sic] pro blem .” The victim
pulled out the gold cigar box from underneath the counter, and then went to the beer
cooler to get a six-pack of Miller be er as D efend ant req ueste d. W hile turning around
with his elbows halfway up, the Defendant became frighten ed an d pulle d out h is
revolver which “acc identally fired.”
W hile the Defendant’s statement was not tape recorded, Agent Walley took
notes and then w rote out a statem ent in narrative form w hich Defen dant read and
signed after initialing all corrections. Sheriff Ke lley returne d to the room and read the
statem ent. W h en Defendant affirmed that this was indeed his statement, Kelley
signed the statem ent as a w itness.
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Steve Scott, an agent of the Tennessee Bureau of Investigation, administered
the ballistics testing on the pistol and the bullet fragment. While Scott was unab le
to determine that the bullet fragme nts were fired from the Defe ndant’s p istol due to
damage, Scott testified that all four class characteristics of the bullet and the pistol
were a match . These four class characteristics included the caliber of the gun and
bullet, the directio n of the ba rrel twist, the number of lands and grooves, and the
width of the lands and grooves. While the Defendant’s weapon could not be
isolated as the murder weapon, it could “certainly” have been the weapon used.
Agent Scott also noted that the pisto l required trigger press ure “between normal and
heavy” to fire the weapon, dependent upon whether the weapon was cocked or
uncocked when it was fired.
The S tate rested its case-in-c hief.
Tim Adams, a friend of the Defendant’s, testified that after the victim’s murd er,
the Defendant left town for one or two weeks. When the Defendant returned, he had
both new tire s and a new vinyl top on his car. Jokingly, Adams inquired whether the
Defendant had “bumped old Do nn off,” b ut the D efend ant on ly laughed in response.
Jess e Jam es Jo nes te stified th at he w as inca rcerat ed in a cell facing that of
Defendant’s. Jones made several telephone calls for the Defendant because the
telephone in Defendant’s cell was not working.
Rodney Johnson testified that the Defendant never told him that he robbed or
murd ered th e victim . John son d id verify th at De fenda nt own ed a .2 2 pisto l.
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Stevison Veasey, the Defendant’s stepfather, testified that Defendant visited
his mother around May 27, 1994. During that visit, Veasey bought new tires for
Defe ndan t’s car. During that same visit, Veasey stated that Defendant’s natural
father put a new vinyl roof on the Defe ndant’s car.
M OTION TO SUPPRESS STATEMENT
Defendant argues that his state ment g iven to the police on his fifth day of
incarceration should h ave bee n supp ressed as a violation of his Fourth, Fifth and
Sixth Amendment rights under the United States Constitution. Wh en an accu sed is
afforded an evidentiary hearing on the merits of a motion to suppress, the findings
of fact made b y the trial court are bin ding upon the appellate court unless the
evidence containe d in the rec ord prep ondera tes aga inst these findings. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the witnesses,
the weight and value of the evidence , and resolution o f conflicts in the evidence are
matters entrusted to the trial judge as the trier of fact.” Id. Provided that the greater
weight of the e videnc e sup ports th e trial co urt’s findings, then those findings shall be
uphe ld by the appellate court and the party prevailing in the trial court is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn from that evidence. Id. In evaluating the correctness of the trial
court’s ruling o n Def enda nt’s pre trial mo tion to s uppre ss, this court may consider the
proof adduced both at the suppression hearing an d at trial. State v. Johnny
Henning, ____ _ S.W .2d __ ___, N o. 02S 01-97 07-C C-00 65, 19 98 W L 324 318, s lip
op. at 6, Madiso n County (T enn., at Jackso n, June 22, 19 98).
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At the he aring o n the m otion to supp ress, S heriff B ill Kelley te stified that h e
had the Defendant picked up for questioning for the first time on May 1, 1996. After
the Defendant denied any involvement in the crime and implicated others, he was
released and further investigation occurred. Kelley recalled that Defendant was
picked up again for questioning on May 6, 1996, and was held until he confessed on
May 8, 1996 . There is some discrepancy in Kelley’s testimony as to the date the
Defendant was picked up by the police for questioning on the second occasion.
Howeve r, the trial court’s findings of fact and the strongest legitimate view of th e
evidence require us to conclude that Defendant was not picked up for questioning
again by the police until May 6, 1996 and was held w ithout a warra nt or arr est un til
May 8, 1 996, wh en he c onfess ed to the ro bbery an d murd er of the victim .
First, we will address the Defendant’s contention that his confession was
obtained in violation of his Sixth Amendment constitutional right to counsel. The
Sixth Amendment right to counsel does not attach until the adversarial judicial
process has be gun. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407,
89 L.Ed.2d 631 (1 986) (citatio ns om itted); State v. Stephenson, 878 S.W.2d 530,
547 (Tenn. 1994). The long-established law in Tennessee for the initiation of the
adversarial judicial process is at the time of the filing of the formal charge, such as
an arrest warrant, indictment, presentme nt, or preliminary hea ring in cases wh ere
a warrant was not obtained prior to the ar rest. State v. Mitch ell, 593 S.W.2d 280,
286 (Tenn . 1980), cert. denied, 449 U.S. 845 (1980); State v. Butler, 795 S.W.2d
680, 685 (Tenn. Crim. App. 1990). It is clear from the record that Defendant had not
as yet been formally charged as of the time he gave his statement, therefore no right
to coun sel had ye t attached and no violation of the Sixth Am endm ent occu rred.
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Defendant urges this court to suppress his statement as involuntary based
upon denial of the right to counsel during police interrogation pursuant to the Fifth
Ame ndme nt. If a suspect requests that counsel be present during police-initiated
custodial interrog ation, th en po lice m ust ce ase q uestio ning u ntil cou nsel for that
suspect is presen t. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612,
16 L.Ed.2d 694 (19 66); Edwards v. Arizona, 451 U.S . 477, 482, 101 S.Ct. 1880,
1883, 68 L.Ed .2d 378 (1981); State v. S tephenson, 878 S.W.2d at 547-48. The
Defendant waived his right to counsel verbally and/or in writing on each occasion
when he was interrogated by the police. Therefore, his waiver is sufficient for the
police to have a ssum ed he d id not invok e his right to c ounse l under the Fifth
Ame ndme nt.
The Defendant asserts that at the time he gave his statement to the police he
had been incarcerated for five (5) days and that this amount of time violated the
Fourth Amendment right to prompt judicial d eterm ination of prob able cause after a
warrantless arrest. The State concedes that Defendant may have been detained
over a period of forty-eight (4 8) hours , therefore , there wa s a violation of the Fo urth
Ame ndme nt. See Cou nty of R iverside v. McL augh lin, 500 U.S . 44, 56, 11 1 S.Ct.
1661, 1670, 1 14 L.Ed .2d 49, 63 (1991); State v. Huddleston, 924 S.W.2d 666, 671-
73 (Tenn. 199 6). In Huddleston, our state supreme court determined that the “fruit
of the poisonous tree” analysis is to be applied to determine whether a statement
obtained in violation of th e Fourth Ame ndme nt mus t be supp ressed . Huddleston,
924 S.W.2d at 674. The question is “whether [the statement] ‘was sufficiently an act
of free will to purge the prim ary taint of the unlawful invas ion.’” Brown v. Illinois, 422
U.S. 590, 598, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975) (quoting Wo ng Sun v.
United States, 371 U.S . 471, 486 , 83 S.C t. 407, 416 , 9 L.Ed.2 d 441 (1 963)).
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Four factors are useful in determining whether the statement was voluntary
under the above standard: (1) the presen ce or ab sence of Miranda warnings; (2) the
temporal proximity of the arrest and the confession; (3) the presence of intervening
circumstances; and (4) the purpose and flagrancy of the official m iscondu ct. Brown,
422 U.S. 603-04 , 95 S.C t. at 2261-6 2; Huddleston, 924 S .W .2d at 6 74-75 . First, all
testimony indicates that Defendant was given Miranda warnin gs bo th orally and in
writing prior to giving his statem ent to the police. Th e fact that Defen dant was a ware
of his Fifth Am endm ent righ ts aga inst se lf-incrim ination is a facto r weigh ing in favor
of attenua tion. Huddleston, 924 S.W .2d at 675 . Secon d, the tem poral pro ximity of
the arrest an d confe ssion, a p eriod of jus t a few hours past a McLa ughlin violation,
weighs only slightly in favor of suppression.
The third factor, the presence of intervening circumstances, points toward
purging the initial illegality of the sta teme nt as D efend ant co nsulte d with h is fam ily
on May 7, 19 96, prior to g iving his state ment. Huddleston, 924 S.W.2d at 675. Also
on May 7, D efenda nt reque sted to voluntarily submit to a polygraph examination on
the following day. Defendant’s consent to submit and remain present for the
polygraph examination exemplifies his “act of free will,” also pointing towards
attenuation. Finally, the State concedes that Defendant’s detention under the fourth
determining factor wa s neither in adverte nt nor unin tentional b ased u pon Sh eriff
Kelley’s tes timony.
W hile the fourth factor is weighed heavily by this court when determining
whethe r to suppress a statement, a review of the remaining three (3) factors leads
this court to conclude that Defendant acted sufficiently of free will to purge the initial
illegality of his statemen t. Both the intervening factors and th e use o f Miranda
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warnings clearly demo nstrate that Defe ndant acted of his own free w ill, and the third
factor, that of temporal proximity, does not exhibit such a length of time as to require
suppression.
Defendant also argues that this delay violated Rule 5 of the Tennessee Rules
of Criminal Procedure. Rule 5(a) states that any person arrested without a warrant
shall be taken without un neces sary dela y before th e neare st appro priate magistrate.
As Defendant did not agree to a lengthy detention, it is argued that the delay was not
in good faith and was unnecessary. The S tate ag ain co nced es tha t Defe ndan t’s
detention violates this rule. Violation of this rule results in suppre ssion of a
statement if the statement was not voluntarily given under the totality of the
circumstances. Huddleston, 924 S.W.2d at 670. The following factors may be used
in determining the voluntariness of the confession:
The age o f the ac cuse d; his la ck of e duca tion or h is intellige nce le vel;
the extent of his previous experience with the police; the repeated and
prolonged nature o f the ques tioning; the length of the detention of the
accused before h e gave th e statem ent in que stion; the lack of any
advice to the accused of his constitutional rights; whether there was an
unneces sary delay in bringin g him before a magistrate b efore he gave
the confession; whether the accused was injured, intoxicated or
drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the
accused was ph ysically abu sed; an d wheth er the su spect was
threatened with abuse.
Huddleston, 924 S.W.2d at 671 (quoting People v. Cipriano, 431 Mich. 315, 429
N.W .2d 781 (198 8)).
There is no evidence within the record to support that the Defendant’s age,
intelligence or education levels prevented him from voluntarily confessing. N or were
any physical o r menta l limitations intro duced into evidence. Th ere is some evidence
indicating Defendant has had prior contact with law enforcement. While Defendant
was repea tedly questioned by the police, he was Mirandized prior to a ll questioning
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and he initiated many portions of that questioning voluntarily. Another factor favoring
voluntariness of his con fessio n is the conta ct he w as allo wed to have w ith his family.
At no time du ring the qu estioning was the re any evid ence th at Defen dant was
deprived of any necessities, nor is there evidence of physical or mental abuse.
W hile we agree there was an unnecessary delay and a violation of Rule 5(a) of the
Tennessee Rules of Criminal Procedure, under the totality of the circumstances we
canno t conclud e that De fendan t’s statem ent was involuntary .
P OLYGRAPH EXAMINATION
Defendant contends that he should have been allowed a ccess to the resu lts
of his polygrap h exam ination an d shou ld have b een allow ed to presen t the results
as evidence. At the suppression hearing, Agent Walley testified that the results
indicated that Defendant was “deceptive” as to his involvement in the crimes
committed against th e victim. T herefore , Defend ant was a llowed access to the
results of th e exam ination.
Well-established law in Tennessee holds that the results of a polygraph
examination are not admissible as eviden ce. State v. Hart, 911 S.W.2d 371, 377
(Tenn. Crim. A pp. 199 5); State v. Irick, 762 S.W .2d 121 , 127 (T enn. 19 88), cert.
denied, 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 825 (1989); State v. Adkins,
710 S.W.2d 525, 529 (Tenn. Crim. App. 19 85); Grant v. S tate, 213 Tenn. 440, 443,
374 S.W.2d 391, 392 (1964). As the State correctly notes within its brief, neither the
offer to take a polygraph nor th e circu msta nces surrou nding the exa m are adm issible
as evidenc e. Adkins, 710 S.W .2d at 528 -29; Grant, 374 S .W .2d at 3 92. Th is issue
is without m erit.
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R EVOLVER AND B ALLISTICS TEST RESULTS
Defendant argue s that th e trial co urt erre d in admitting a revolve r and b allistic
test results into e vidence . Defend ant as serts th at the re volver w as ina dmis sible
since his prior crim inal record had be en expu nged. F urtherm ore, the D efendant
urges this court that the ballistics test results were so inconclusive as to be rendered
neithe r releva nt nor p robativ e, but h ighly pre judicia l.
During Septem ber 199 4 at the Mid-South Fair in Memphis, Tennessee,
Defendant was arrested for carrying a loaded .22 caliber revolver. After pleading
guilty to charges of carrying a weapon on recreational property, Defendant was
placed on judicial diversion. Evidently, Defendant completed his sentence of
diversion without furth er inciden t and his re cord wa s expun ged.
Expungement pursuant to judicial diversion includes “all recordation relating
to the person’s arrest, indictment or informa tion, trial, finding o f guilty and dismissal
and discharg e . . .” Tenn. C ode An n. § 40-35-3 13(b). T his statute ’s purpos e is to
restore the defendant to the sta tus the pe rson oc cupied prior to suc h arrest,
indictment or information. Defenda nt ma intains that ph ysical e videnc e is
inadm issible under th e judicial dive rsion statu te. There is no auth ority to sup port his
argum ent. The purpose of expunging records of a criminal charge is to place the
person back in the position he or she occupied prior to being arrested or charged.
State v. Sims, 746 S.W .2d 191 , 199 (T enn. 19 88). While the trial court did allow use
of the revolver as admissible physical evidence, he refused to allow admission of any
facts surrounding Defendant’s prior arrest. The expungement language in our
judicial diversion statute precludes use of proof of any a rrest, indictm ent,
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information, or trial. State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim . App.
1995). Physic al evide nce is not excluded under this statutory section, and this issue
is without m erit.
Defenda nt complains the ballistic test results should have been suppressed
as they were “inconclu sive” and , although relevant, their probative value was
subs tantially outweighed by the danger of unfair prejudice. The decision to admit or
exclude evidence rests in the sound discretion of the trial court, and this court will not
overturn the trial court’s rulings absent a clear showin g of abu se of disc retion. State
v. Bigbee, 885 S.W .2d 79 7, 806 (Ten n. 199 4). W hile the officer who conducted the
ballistics tests admitted the test results were not conclusive, he testified that the
weapon could not be excluded as the potential murder weapon. The officer also
stated that the four class characteristics of the Defendant’s weapon matched the
bullet which killed the victim. The revolver and the murder weapon had matching
calibers, same number of land and grooves, matching land and groove widths, and
the same direction of barrel twists. Coupled with the statement of Defendant
confessing to the crime, these test results are relevant, and the probative value
clearly outwe ighs th e pote ntial prejudicial effect of the inconclusive nature of the
results.
B ATSON CHALLENGE AND CHANGE OF VENUE
Defendant argues that the State’s exclusio n of ce rtain bla ck juro rs was in
violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.E d.2d 69 (198 6).
Following the conclusion of voir dire, the State exercised its peremptory challenges
against four (4) jurors, specifically jurors Rivers, Howell, Wo ods an d Bryan t.
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Defendant objected under Batson that such challenges were based upon willful and
purposeful discrimin ation by th e State. While the Defendant argued that these
challenges resulted in all blacks being exc luded from th e jury, the State responded,
“[I]t’s been an unfortunate coincidence that most everybody that knows the
defendant or his family is African-American, but that’s a sociological fact that the
State can’t be p rejudiced by . . .”
After Defendant objected, the State responded to each challenge with an
individual explana tion for the p eremp tory challen ge. First, wit h regard to juror
Rivers, the State cited the fact that he had been through the criminal courts before
and worked with individuals similarly situated to the Defendant on a daily basis. The
State referenced the challenge to juror Howell due to her relationship with the
Defendant and his fam ily, and that, in response to questioning, so me of her a nswers
“gave her some pause about her judgment in this case.” Juror Woods was excluded
by the State as he has a son the same age as the Defendant and is friends with the
Defendan t. Juror Bryant had two family members convicted of felony offenses in
Fayette C ounty.
There is a three-step analysis defined in Batson which is u sed to determine
whether purposeful discrim ination has o ccurre d in jury selection . Batson, 476 U.S.
at 96-98. First, the opponent of the peremptory challenge must establish a prima
facie case of racial discrimination. Second, the one exercising the challenge must
present a race-neutral explanation for exercising the challenge. Th ird, the trial court
is to determine whether the reasons given are sufficient or are pretexts for
discrimin ation.
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In Woodson v. Porter Brown Limestone Company, Inc., 916 S.W.2d 896, 904
(Tenn. 1996), our suprem e court h eld that in a ccom plishing the mand ate of Batson,
the trial court should state clearly on the record, outside the jury’s presence, the
facts relied upon fo r finding the presen ce or ab sence of a prima facie showing. If the
trial court finds that a prima facie showing has been made, then the party seeking
to exclude the juror m ust have an opportunity to offer neutral and no ndiscriminatory
explanations for the exercise of the challenge. “Thereafter, the judge must
determine, based on all the evidence, whether purposeful discrimination has been
establish ed.” Id. at 904. While the procedure used by the trial court did no t explicitly
follow these guidelines, we must conclude that the trial judge determined first that
a prima facie case of discrimination was established and, second, that the trial judge
rejected Defendant’s objection by concluding that there was no purposeful
discrimination by the Sta te. Id. at 905 . Wh ile the trial cour t did not sp ecifically state
within the reco rd the rea sons for e ach findin g, the record of voir dire supports the
trial court’s ruling as to Defendant’s Batson objection. Upon review of the record, we
will not se t aside the rulin gs of th e trial co urt as th ey are not cle arly erroneo us. See
Woodson, 916 S.W .2d at 906 (citations o mitted).
After Defendant made a contemporaneous motion for a change of venue
during his voir dire challenges, the trial court overruled his motion. Defendant
objected on the basis of the prosecutor’s statement that most every African-
American in the potential jury pool knew the Defendant. Rule 21(a) of the
Tennessee Rules of Criminal Procedure provides for a change of venue “if it appears
to the court that, due to undue excitement against the defendan t in the county whe re
the offense was committed or any other ca use, a fair trial proba bly could n ot be ha d.”
The decision to change venue rests in the so und d iscretio n of the trial cou rt and w ill
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not be overturned absent a clear abuse of discretion. Rippy v S tate, 550 S.W.2d
636, 63 8 (Ten n. 1977 ); State v. Melson, 638 S.W .2d 342 , 360 (T enn. 19 82).
In order to revers e a de fenda nt’s conviction due to the den ial of his mo tion to
change venue, the defendant must establish that the juro rs em pane led to h ear his
case were pre judiced o r biased a gainst him . State v. Burton, 751 S.W.2d 440, 451
(Tenn. Crim. A pp. 198 8); State v. Evans, 838 S.W.2d 185, 192 (Tenn . 1992), cert.
denied, 114 S.Ct. 740 (1993). There is no evidence in the record that undue
excitement or any other cause threatened his right to a fair trial in that county. The
mere fact that there was e xtensive knowledge of the crimes and the defendant is not
sufficient to rende r the trial con stitutionally un fair. State v. Kyger, 787 S.W.2d 13,
19 (Tenn. Crim. App. 1989) (citation omitted). Absent any proof by this Defendant
that the juro rs were p rejudiced against h im, we find this issue to be withou t merit.
M OTION FOR MISTRIAL
Defendant argues that the trial court erred in overruling his m otion for a
mistrial base d upo n the p rosec utor’s reference to Defendant’s expunged conviction
during the trial. During pretrial motions, the trial court determined that Defe ndan t’s
prior arrest had been properly expunged and, therefore, the prosecution could not
“go into the underlying circumstances of any crimes [the Defendant] would have
committed while he had the gun or any charges against him.” Defendant claims that
the prosecution did present testimony of and reference these inadmissible matters.
A mistrial is an appropriate remedy when a trial cann ot continue, or a
miscarriage of justice wo uld result if it did. State v. McPherson, 882 S.W.2d 365,
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370 (Tenn. Crim. App. 1994). The decision to grant a mistrial rests in the sound
discretion of the trial cou rt, and this court will not interfere with the exercise of that
discretion absent clear abuse appearing on the face of the record. State v. Jones,
733 S.W.2d 517, 522 (Tenn . Crim. App . 1987); State v. Adkins, 786 S.W.2d 642,
644 (T enn. 19 90); McPherson, 882 S.W.2d at 370.
Clearly, the record demonstrates that the prosecutor elicited testimony
regarding the pistol taken from the Defendant, but the prosecutor at no instance ever
inquired into the underlying circumstances surrounding the Defe ndant’s a rrest. As
previously determ ined, the te stimon y conce rning De fendan t’s posse ssion of a
revolver was admis sible, and there is no evidenc e of a “manifest necessity” by which
the trial court sho uld have declared a mistrial. See Arnold v. S tate, 563 S.W.2d 792,
794 (Ten n. Crim. App . 1977).
T ESTIMONY OF JESSE JAMES JONES
Defendant contends that the trial court erred in excluding some portions of the
testimony of Jesse Jame s Jone s, a cellm ate of the Defen dant. Specifically,
Defendant asserts that the trial court excluded testimony regarding the Defe ndan t’s
lack of ability to use a telephone while incarcerated. As this issue was not
spec ifically included within the Defendant’s motion for new trial, this issue is not
prope rly before this court an d is, therefo re, waived . Tenn. R . App. P. 3 (e); State v.
Clinton, 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).
J UDGMENT OF ACQUITTAL
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Defendant argues that the trial court erred by failing to gran t a motion for a
directed verdict and judgm ent of acq uittal following the conc lusion of the State’s
proof and at the end of the trial. The duty of the trial judge and the reviewing cou rt
on the determination of a motion for a judgmen t of acquittal is the sam e as for a
motion for a directe d verdict. State v. T orrey, 880 S.W.2d 710, 712 (Tenn. Crim.
App. 1993). This duty is as follows:
The rule for determining a motion for a directed verdict requires the trial
judge and the reviewing court on appeal to look at all of the evidence,
to take the strongest legitimate view of it in favor of the opponent of the
motion, and to allow all reasonable inferen ces from it in its favor; to
discard all coun tervailin g evide nce, a nd if the n, there is any dispute as
to any material determinative evidence, or any doubt as to the
conclusion to be drawn from the whole evidence, the m otion must be
denied.
State v. Thompson, 549 S.W.2d 943, 946 (Tenn. 1977) (citing Jones v. State, 533
S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).
Defendant was convicted of murder in the perpetra tion of robbery and second
degree murder, wh ich the trial court merged as one conviction for felony murder. At
the time of this offense, a reckless killing of another committed in the perpetration
of or attempt to perpetrate any robbery or burglary constituted first degree mu rder.
Tenn. Code Ann. § 3 9-13-20 2(a)(2). H e was a lso convic ted of especially aggravated
robbery. Especially aggravated robbery is the intentio nal or kno wing the ft of proper ty
from another person accomplished by a deadly weapon and the victim suffers
serious b odily injury. Te nn. Co de Ann . §§ 39-1 3-401, -4 03.
From the record, it is clear that the evidence is sufficient to support the trial
court’s refusal to grant these motions. While Defendant focuses upon the element
of “premeditation” in his brief, this mental state was not required by these offenses
and his argum ent is mo ot. In his own statem ent, Defe ndan t adm itted to in tention ally
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using a revolver to rob the victim of his store earnings. While the Defendant claims
to have accidentally fired the handgun, evidence demonstrated that it would take a
significant amount of pressure to discharge the weapo n. In any ev ent, the reckless
use of the weap on res ulting in the death of the victim while Defendant committed a
robbery is sufficient to c onstitute convictio ns of fe lony m urder and e spec ially
aggravated robbery.
L ESSER INCLUDED OFFENSES
Defendant argues that the trial court erre d in refusin g to char ge the jury with
the lesser offenses of premeditated first degree murder, including volun tary
manslaughter and criminally negligent homicide. Reasoning that there was not
adequ ate evidence of passion or provocation, the trial court refused to charge the
jury on these lesser offenses. The trial court charged second degree murder as a
lesser offense of premeditated first degree murder and charged reckless homicide
as a lesser offen se of felony mu rder.
W e note that the Defendant failed to include this issue in his motion for a new
trial. Tennessee Rule of Appellate Procedure 3(e) requires that issues in a motion
for new trial be “specifically stated . . . otherwise such issues will be treated as
waived.” W e do have the autho rity to address the trial court’s failure to charge the
jury on ap propr iate lesser offenses as p lain error. Tenn. R . Crim. P. 52(b).
Howeve r, for the reasons sta ted hereafter, we find no plain error.
The Defendant was convicted by the jury of second degree murder, felony
murder and especially aggravated robbery. The trial court merged the offense of
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second degree murde r into the conviction for mu rder in the perpe tration of a felony.
Likewise, even if the jury had been charged with voluntary manslaughter and
crimin ally negligent homicide and had delivered a guilty verdict on each of those
counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convictions
would have been merged by the trial court into the conviction for felony murder. The
result would have been the same as Defendant’s current conviction for felony
murder. There fore, any e rror in failing to charge these offenses is harmless. Tenn.
R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).
P ROSECUTORIAL MISCONDUCT
Defendant asserts in his brief that the State’s prosecutor conducted him self
inapp ropria tely throug hout th e trial by fa iling to co mply with discov ery, im perm issibly
communicating with a witness during trial recess, and noting Defendant’s expunged
conviction during the trial. Defendant’s motion for new trial specifically asserts that
the trial court erred “in allowing the State to argue during the sentencing phase,
matter which was outside the scope of the aggravating factors presented by the
State.” There is no mention in his motion for new trial of any communication by the
prosecutor with a witness during the trial or of any failure by the State to com ply with
discovery. During the Defendant’s hearing on the motion for new trial, his counsel
orally requested that the portion of his motion referencing the “sentencing phase” of
the trial be struck as the D efenda nt receive d the m inimum senten ce with regards to
all counts. A s the De fendan t’s rema ining ass ertions of p rosecutorial misconduct
were not sp ecifica lly includ ed with in his m otion fo r new tr ial, this issue is not pro perly
before this court and is, therefore, waived. Tenn. R. App . P. 3(e); State v. Clinton,
754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).
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After a thorough review of the law and the records in the case sub judice, we
affirm the ju dgme nt of the trial co urt.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOHN H. PEAY, Judge
___________________________________
PAUL G. SUMMERS , Judge
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