IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
MAY SESSION, 1999
FILED
July 21, 1999
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9707-CC-00265 Cecil Crowson, Jr.
)
Appellate Court Clerk
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 R. STEPHEN JOBE
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 ________________________ REVERSED AND REMANDED THOMAS T. WOODALL, JUDGE
OPINION
In this case, the Defendant, Corey Lemont Powell, appeals as of right
from the judgments of conviction for felony murder and especially aggravated robbery. Indicted and tried for felony murder, premeditated first degree murder, and espe cially aggravated robbery, the jury, on these counts, found him guilty of felony murder, second degree murder, and especially aggra vated robbe ry. The trial court merged the second degree murder conviction with the felony murder and Defendant was given a life senten ce. The trial court sen tenced him to serve fifteen (15) years for the co nviction of esp ecially aggrava ted robb ery, conc urrent to th e sente nce of life imprison ment. Defendant presents nine (9) issues for appe llate review. This cou rt initially affirme d the c onvictio ns. Th e Def enda nt then timely file d a Pe tition to Rehea r, which was granted. The original opinion and judgment were vacated. The court ordered the trial court to make certain find ings o f fact reg arding Defe ndan t’s issue challeng ing adm issibility of his co nfession . After further briefing following the trial court’s supplemental findings of fact, the case was then reargued. After review of the entire record, briefs and arguments of counsel, and applicable law, we find that suppre ssion of Defendant’s confession is required, and we therefore reverse the judgm ents of the trial court an d rema nd this ca se for a ne w trial.
The issues presented by Defendant are as follows:
1) whether the trial court erred in de nying D efenda 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;
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3) whether the trial court erred by refusing to suppress evidence of the mu rder wea pon an d the ba llistics test;
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 trial c ourt er red in denying Defendant’s motion for a mistrial du e to adm ission of ev idence of Defen dant’s arre st;
6) whether the trial court erred in refusing to admit testimony regarding Defe ndan t’s restricted access to the telephone during police questioning;
7) whether the trial court erred in overruling Defendant’s motion for a judg men t of acq uittal;
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.
F ACTS
Bess ie Russ ell, wife of Don Russell, testified that he was the owner and operator of Russell’s Grocery located in Hickory Wyth e, a rural are a of Faye tte County. The store had been open since April 1947. In May 1994, Don Russell was seventy-four (74) years old. Ru ssell and his wife lived ne xt door to the store, and each morning he rose at 5:00 a.m. to open the store. He went to the store to eat his 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
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lying on his back in a pool of blood. Mrs. Russell called 911, and the victim was transported by helicopte r 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 Smith testified that he performed the autopsy of the victim.
Dr. Smith reported that the victim died as a result of a near gun shot wound to the head, and he removed a .2 2 calib er bulle t fragm ent from the ba ck of th e victim ’s brain. From his examination, Dr. Smith determined that the gun was between six (6) to twelve (12) inches from the victim’s head at the time it was fired.
Bill Kelley, Sheriff of Fayette County, testified that he led the investigation of the victim’s murder. After arriving at Russell’s Grocery on May 27, 1994, at 6:30 a.m., Sheriff Kelley determined that a cigar box containing appro ximate ly $1200.00 had been stolen from the store and that there were no witnesses to the shooting of the victim. On June 24, 1994, Kelley interrogated a potential suspect, Jerry Coleman, but after a brief investigation, Coleman was eliminated as a suspect. The investigation, in Sheriff Kelley’s words, came to a “dead end.” Two years later, in April 1996, Kelley discovered that the Defendant had told some people within the community that he was respons ible for th e victim ’s murder. Also, the Defendant’s nine-shot .2 2 calib er revo lver wa s seize d from him by police during the Mid-South Fair. After the revolver was recovered from the Mem phis Police D epartm ent prop erty room, both the revolver and bu llet fragme nts from the victim’s bra in were s ent for ba llistics testing.
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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 recovered the De fenda nt’s pistol. After reading Defendant his constitutional rights, the Defendant signed a waiver of these rights and did not request an atto rney o r his parents to be presen t during the interview. De fendant den ied any involvement in either the robbery or murder of the victim, but did advise Kelley that Br yant P owell and Erin Luckett were involved. The Defendant was released following that interview. After furthe r investigatio n, the De fendant was again picked up by the police for ques tioning an d was inc arcerate d on Ma y 3, 1996 . After advising Defenda nt of his rights for a second time, Kelley again inte rviewed th e Defe ndant, but not until May 6, 1996. Defendant again denied his involvement in the crime.
On May 7, 1996, Sheriff Kelley was notified that the Defendant wanted to speak with him. A fter Defen dant wa s advised of his con stitutional rights and signed a waive r form , he ag ain denie d involv eme nt in the murd er and implica ted his cousin, “Big John,” from Memp his. On May 8 , 1996, Age nt Scott W alley from th e Tennessee Bureau o f Investigatio n cam e to interview the Defe ndant u pon Sh eriff Kelley ’s request. Sheriff Kelley verified that the Defendant was never mistreated or promised 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 attorne y, althou gh Ke lley spo ke with Defe ndan t’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
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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 entere d Rus sell’s Groc ery at a pprox imate ly 5:30 a.m. on May 27, 1994, with his nine-shot .22 calibe r revolve r in his rig ht front p ocke t. He told the victim to “give [him] the money and there w on’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 beer as Defendant requested. While turning around with his elbows halfway up, the Defendant became frighte ned a nd pu lled ou t his revolver which “acc identally fired.”
W hile the Defendant’s statement was not tape recorded, Agent Walley took notes and then wrote out a statement in narrative form which Defendant read and signed after initialing all corrections. Sheriff Kelley returned to the room and read the statem ent. Wh en De fendan t affirmed th at this was indeed his statem ent, Kelley sign ed the sta temen t as a witne ss.
Steve Scott, an agent of the Tennessee Bureau of Investigation, administered the ballistics testing on the pistol and the bullet fra gme nt. W hile Scott was unable to determine that the bullet fragm ents were fir ed from the De fenda nt’s pistol 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 direction of the barrel twist, the number of lands and grooves, and the width of the lands and grooves. While the Defendant’s weapon could not be iso lated as th e murder weapon, it could “certainly” have been the weapon used. Agent Scott also noted that the pistol required trigger pre ssure
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“between normal a nd heavy” to fire the weapon, dependent upon whether the weapon was cocked or uncocked when it was fired.
The S tate then re sted its cas e-in-chief.
Tim Adams, a friend of the Defendant’s, testified that after the victim ’s murder, the Defendant left town for one or two weeks. When the Defendant returned, he had both new tires and a new vinyl top on his car. Jokingly, Adams inquired whether the Defendant had “bumped old Donn off,” but the De fenda nt only laughed in response.
Jesse Jame s Jone s testified that he was incarcerated 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 murdered the victim. Johnson did verify that Defendant owned a .22 pistol.
Stevison Ve asey, the De fendant’s stepfa ther, testified that Defendant visited his moth er aroun d May 2 7, 1994 . During that visit, Veasey bought new tires for Defen dant’s ca r. During that same visit, Veasey stated that Defendant’s natural father put a new vinyl roof on the Defe ndant’s car.
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M OTION T O S UPPRESS S TATEMENT
Defendant argues that his statement given to the police on his fifth day of incarceration should have been suppressed as a violation of his Fourth, Fifth and Sixth Amendment rights under the Un ited Sta tes Co nstitutio n. W hen a n acc used is afforded an evidentiary hearing on the merits of a motion to suppress, the findings of fact made by the trial court are binding upon the appellate court unless the evidence contained in the record p repond erates a gainst the se finding s. 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 of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. Provided that the greater weight of the evidence supports the trial court’s findings, then those findings shall be upheld by the appellate court and the party prevailing in the trial court is en titled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn fro m that e vidence . Id. In evaluating the correctness of the trial court’s ruling on Defendant’s pretrial motion to suppress, this court may consider the proof adduc ed both at the s uppre ssion hearin g and at trial. State v. Henning, 975 S.W .2d 290 (Te nn. 1998).
At the hearing on the m otion to suppress, Sheriff Bill Kelley testified that he had the Defen dant pick ed up fo r 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. In its supple menta l findings of fa ct, the trial court determined that Defendant was incarcerated on May 3, 1996. The record reflects, however, that Defendant was not questioned again until May 6, 1996,
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when he again denied any involvement in the robbery or murder of the victim. Regarding Defendant’s May 6 denials, Sheriff Kelley testified “I know that he [Defen dant] was blow ing hot air a t me ag ain and I just took the notes and then I locked him back up.” (Emphas is added).
W e note the chro nology o f events that Defendant was apprehended on May 1 and released after denying involvement in the crimes. Two days later he was again taken into custod y, but this time he was inca rcerated for three (3 ) days before being questioned on May 6, when he again denied his participation in criminal acts. He was promptly “locked up” again. There had been no judicial determination of proba ble cause that Defendant had committed the crimes. As set forth above, Defendant confessed on May 8, 1996. No judicial determination of probable cause to arre st Defe ndan t was m ade u ntil after the May 8 confes sion.
First, we will address the Defendant’s contention that his confession was obtained in violation of h is Sixth Am endm ent right to c ounse l. The Sixth Amendment right to c ouns el doe s not a ttach u ntil the adversarial judicial process has begun. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1986) (citations omitted); State v. Stephenson, 878 S.W.2d 530, 547 (Tenn. 1994). The lo ng-es tablished 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 warran t, indictme nt, presentment, or preliminary hearing in cases where a warrant was not obtain ed prior to th e arrest. 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 re cord that Defendant had not been
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forma lly charged at the time he gave his statem ent. The refore D efenda nt’s right to couns el had no t yet attache d, so no v iolation of the Sixth Am endm ent occu rred.
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 Amendment. If a suspect requests that counsel be present during police- initiated custodial interrogation, then police must cease questioning until counsel for that susp ect is pres ent. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S . 477, 482 , 101 S.C t. 1880, 1883, 6 8 L.Ed.2 d 378 (1 981); State v. Stephenson, 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 in terrog ated b y the po lice. Th erefor e, his waiver is sufficient for the police to have assumed he did not invoke his right to counsel 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 Amendm ent righ t to prom pt judic ial dete rmina tion of p robab le cause after a wa rrantless a rrest. The State concedes that Defendant was detained for a period of more than forty-eight (48) hours, and that therefore, there was a violation of the Fo urth Am endm ent. See Coun ty of Riversid e v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 16 61, 167 0, 114 L .Ed.2d 4 9, 63 (19 91); State v. Huddleston, 924 S.W.2d 666, 671-73 (Tenn. 1996). In Huddleston, our state suprem e court determined that the “fruit of the poiso nous tre e” analys is is to be ap plied to determine whether a statement obtained in violation of the Fourth Amendment must
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be suppre ssed. Huddleston, 924 S.W.2d at 674. The question is “whether [the stateme nt] ‘was sufficiently an act of free w ill to purge the primary taint of the unlawful invasion.’” Brow n v. Illinois , 422 U.S. 590, 598, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975 ) (quoting Wong Sun v. United States, 371 U.S . 471, 486 , 83 S.C t. 407, 416, 9 L.Ed.2d 441 (1963)). As stated by the court in Huddleston, “[u]nder the ‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was obtained by exp loitation of the Fourth A mend ment illeg ality.” Huddleston, 924 S.W.2d at 674, (emp hasis adde d) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 40 7, 417, 9 L .Ed.2d 4 41 (196 3)).
In Huddleston, the supreme court noted that four (4) factors are to be considered in determining whether the confession was sufficiently an act of free w ill to purge the primary taint of the incarceration of a defendant without a judicial determination of probable cause. These factors are:
1) the pres ence o r absen ce of Miranda warnings;
2) the tem poral pro ximity of the a rrest and the confe ssion;
3) the presence of intervening circumstances; and 4) the purp ose an d flagran cy of the officia l miscon duct.
Huddleston, 924 S.W.2d at 674-75. The court in Huddleston noted that the fourth factor, the purpose and flagrancy of the official misconduct, was of particular significanc e in this an alysis. Id. at 676.
In its supplemental findings of fact, the trial court found that Defendant was administered his Miranda warnings on May 1, May 6, May 7, and May 8. The
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record suppo rts this finding, and this weighs against suppression of the confession. Defendant was taken into custody without a warrant having been issued, on May 3, 1996, and five (5) day s later, s till withou t an inte rvenin g judicial determination of probable cause, gave a confession while incarcerated. The defendant in Huddleston was held without a judicial determination o f proba ble ca use fo r 72 ho urs, wh ile Defendant in this case was he ld 120 ho urs. Huddleston, 924 S.W.2d at 675. As noted in Huddleston, once a detention becomes unlawful, the increased passage of time make s the Fo urth Am endm ent violation worse. Id. at 675. As stated by the supreme court, “[o]nce the detention becomes unlawful, the pressure to confess likely increases with each mom ent of continuing illega l detention.” Id. In Huddleston, the suprem e court held that where the de tention was fo r appro ximate ly 72 hours, the “temporal proximity factor” weighed in favor of suppression of the statem ent. Likewise, in this case, where the Defendant was detained for approxim ately 120 hours, this factor we ighs in favo r of supp ression.
The trial court, in its supplemental fin dings , determ ined th at De fenda nt’s parents were allowed to visit with him prior to his confession on May 8. This fact was disputed by Defe ndant in th e trial court a nd on appeal. However, under the approp riate standards of review, we agree w ith the fin ding o f the trial c ourt on this factor. This would w eigh in favo r of denyin g the m otion to suppre ss the sta temen t.
The fourth factor, and the one which the supreme court has placed the most significance upon, weighs heavily in favor of suppression.
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The Defendant was not questioned for the first approximate ly 72 hours that he was incarcerated. When he was finally questioned, he again denied involvement in the crimes. With no additional evidence of proba ble ca use, a nd still no judicial determination of probable cause for the arrest, the Sheriff “locked [Defen dant] back up” because he “knew tha t [Defendant] wa s blowing hot air . . . again . . . .”
When reviewing these facts, as we are required to do in light of Huddleston, and cons idering that the “focus ” is on whether the evid ence was obtained by exploitation of the Fo urth Ame ndme nt illegality, id. at 674, the second and fourth factors outweigh the two factors which favor admissibility of the confession. Therefore, the confession given by Defendant on May 8, 1996, to Scott Walley and Sheriff Kelley must be suppressed. Accordingly, the judgments of convic tion are revers ed an d this m atter is re man ded fo r a new trial.
Defendant also argue s on a ppea l that the confe ssion shou ld have been suppressed as being in violation of Rule 5 of the Tennessee Rules of Criminal Procedure. Rule 5(a) states that a person arrested without a warrant must be taken without unnecessary delay before the neare st appro priate m agistrate. T he State concedes that the detention of the Defendant violated the rule. However, under Huddleston, the tes t for the v iolation of this statutory rather than constitutional right is the volun tariness o f the confe ssion un der the to tality of the circumstances. Huddleston, 924 S.W.2d at 670. Under similar circumstances as found by the court in Huddleston, we determine that the confession in this case should not be
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suppressed solely under Rule 5 of the Tennessee Rules of Criminal Procedure, even though it must be suppressed under Fourth Amendment constitutional provisions.
Although we have determined that this case must be reversed and remanded upon the issue regarding Defendant’s confession, we will address the remain ing issue s prese nted by D efenda nt.
P OLYGRAPH E XAMINATION
Defendant contends that he should have been allowed access to the results of his polygraph examination and should have been allowed to present the results as evid ence . At the s uppre ssion hearin g, Age nt W alley tes tified that the results indicated that Defendant was “deceptive” as to his involvement in the crimes committed against the victim. Therefore, D efendant was allowed access to the results of th e exam ination.
Well-established law in Tennessee holds tha t the results of a polygraph examination are not admiss ible as evid ence. 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.C t. 1357, 1 03 L.Ed.2d 8 25 (198 9); State v. Adkins, 710 S.W .2d 525, 529 (Tenn. Crim . App. 1985 ); Grant v. State, 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 the circum stanc es su rroun ding th e exam are ad miss ible as evidenc e. Adkins, 710 S.W.2d at 528-29 ; Grant, 374 S.W.2d at 392. This issue is without m erit.
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R EVOLVER AND B ALLISTICS T EST R ESULTS
Defendant argues that the trial court erred in admitting a revolver and ballistic test results in to eviden ce. Defe ndant a sserts th at the revolver was inadmissible since his prior criminal record had been expunged. Furthermore, the Defendant urges this court that the ballistics test results were so incon clusive as to be ren dered neithe r releva nt nor p robativ e, but h ighly pre judicia l.
During September 1994 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 pursu ant to ju dicial diversion includes “all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty and dismissal and d ischa rge. . . .” T enn. C ode A nn. § 4 0-35- 313(b ). This statute ’s purpose is to restore the defendant to the status the person occupied prior to such arrest, indictment or informatio n. Def enda 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 surround ing Defend ant’s prior arrest. The expungem ent languag e in our
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judicial diversion statute precludes use of proof of any arrest, indictment, information, or trial. State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim. App. 1995). Physical evidence is not excluded under this statutory section, and this issue is without m erit.
Defendant comp lains the b allistic test results should have been suppressed as they were “inconclusive” and , although relevan t, their probative value was subs tantially outweighed by the dange r of unfair pre judice. Th e decisio n to adm it or exclu de evid ence rests in the so und d iscretio n of the trial court, and th is court will not overturn the trial court’s rulings ab sent a clear showing of abuse of discretion. State v. Bigbee, 885 S.W.2d 797, 806 (Tenn. 1994). While the officer who conducted the ballistics tests admitted the test results were not conclusive, he testified that the weapo n 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. These test results are relevant, and the probative value clea rly outweighs the potential prejudicial effect of the inconclu sive natur e of the res ults.
B ATSON C HALLENGE AND C HANGE OF V ENUE
Defendant argues that the State’s exclus ion of c ertain black jurors was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
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(1986). Following the conclusion of voir dire, the State exercised its peremptory challenges against four (4) jurors, specifically jurors Rivers, Howell, Woods and Bryant. Defendant objec ted under Batson that such challenges were based upon willful and purposeful discrimination by the State. While the Defendant argued that these challe nges resulte d in all blacks being exc luded fro m the jur y, 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 c hallenge with an individual explanation fo r the perem ptory challenge . First, with regard to juror Rivers, the State cited the fact that he had b een throug h the criminal co urts before and worked with ind ividuals similar ly situate d to the Defe ndan t on a d aily basis. The State referenc ed the ch allenge to juror How ell due to her relationship with the Defendant and his fa mily, 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 frien ds with the Defen dant. Juror Bryant had tw o fam ily mem bers c onvicte d of felo ny offen ses in Fayette C ounty.
There is a three-step analysis defined in Batson which is u sed to determine whethe r purpos eful discrim ination ha s occurr ed in jury se lection. Batson, 476 U.S. at 96-98 . First, the opponen t of the perem ptory 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. Third, the trial
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court is to determine w hether the rea sons given a re sufficient or are pretexts for discrimin ation.
In W oods on v. P orter B rown L imestone Company, Inc., 916 S.W.2d 896, 904 (Tenn. 1996), our supreme court held that in accom plishing the mand ate of Batson, the trial court s hould sta te clearly on the rec ord, ou tside th e jury’s presence, the facts relied upon for finding the prese nce o r abse nce o f a prim a facie showing. If the trial court finds that a prima facie showing has been made, then the party seeking to exclude the juror must have an opportunity to offer neutral and nondiscrim inatory explanations for the exercise of the challenge. “Thereafter, the judge must determine, based on all the evidence, whether purposeful discrimination has been established.” Id. at 904. While the procedure used by the tr ial cou rt did not explicitly follow these guidelines, we must conclude that the trial judge determined first that a prima facie ca se of d iscrim ination was established and, second, that the trial judge rejected Defendant’s objection by concluding that there was no purposeful discrimin ation by the State. Id. at 905 . Wh ile the tria l court d id not specifically state within the record the reasons for each finding , the rec ord of v oir dire suppo rts the trial c ourt’s ru ling as to Def enda nt’s Batson objection. Upon review of the record, we will not set 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 Defen dant m ade a c ontemporaneous 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
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to the cour t that, due to undu e excitemen t against the defen dant in the cou nty where the offense was committed or any othe r cause , a fair trial proba bly could n ot be ha d.” The decision to change venue rests in the sound discretion of the trial court and will not be overtu rned ab sent a cle ar abus e of discre tion. Rippy v State, 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 re verse a d efenda nt’s con viction du e to the denia l of his motion to change venue, the defendant must establish that the juro rs emp aneled to hear his case were prejudiced or biased against h im. State v. Burton, 751 S.W.2d 440, 451 (T enn. C rim. App . 1988); State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992), cert. denied, 114 S.C t. 740 (19 93). There is no evidence in the record that undue excitem ent or an y other ca use thre atened his right to a fair trial in that county. The mere fact that there was extensive knowledge of the crimes and the defendant is not su fficient to rende r the trial c onstitu tionally unfair. State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989) (citation omitted). Absent any proo f by this Defendant that the jurors were prejudiced against him, we find this issue to be without m erit.
M OTION FOR M ISTRIAL
Defendant argues that the trial court erred in overruling his motion for a mistrial based upon the prose cutor’s reference to Defendant’s expunged conviction during the trial. During pretrial motions, the trial cou rt deter mine d that D efend ant’s prior arrest h ad be en pro perly expunged and, therefore, the prosecution could not “go into the un derlying circ umsta nces o f any crimes [the D efendant] wo uld have committed while he had the gun or any charges against him.” Defendant claims that
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the prosecution did present testimony of and reference these inadmissible matters.
A mistrial is an approp riate remedy w hen a trial cannot con tinue, or a miscarriage of justice wo uld result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to grant a mistrial rests in the sound discre tion of th e trial co urt, 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. A pp. 198 7); 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 unde rlying circ ums tance s surro undin g the D efend ant’s arrest. As previo usly determ ined, the testimon y conce rning De fendan t’s posse ssion of a revolver was a dmis sible, a nd the re is no evidence of a “manifest necessity” by which the trial cou rt shou ld have de clared a m istrial. See Arnold v. State, 563 S.W.2d 792, 794 (Ten n. Crim. App . 1977).
T ESTIMONY OF J ESSE J AMES J ONES
Defendant contends that the trial court erred in excluding some portions of the testimon y of Jesse Jame s Jone s, a cellm ate of the D efenda nt. Specifically, Defendant asserts that the trial court excluded testimony regard ing the Defe ndan t’s lack of ability to use a telephone while incarcerated. As this issue was not specifically included within the Defendant’s motion for new trial, this issue is not
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prope rly before this court and is, therefore, waived. Tenn. R. App. P. 3(e); State v. Clinton, 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).
J UDGMENT OF A CQUITTAL
Defen dant arg ues tha t the trial court e rred by failing to grant a motion for a directed verdict and judgment of acquittal following the conclusion of the S tate’s proof and at the end of the trial. The duty of the trial judge and the reviewing court on the determination of a motion for a judgment of acquittal is the same as for a motion for a directe d verdict. State v. Torrey, 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 inferences from it in its favor; to discard all coun tervailin g evide nce, a nd if then, 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 motion must be denied.
State v. Thompson, 549 S.W .2d 943, 946 (Tenn. 197 7) (citing Jones v. State, 533 S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).
Defendant was convicted of murder in the perpetration of robbery and second degree m urder, which the trial court merged as one con viction for felony murder. At the time of this offens e, a reckle ss killing of an other committed in the perpetration of or attempt to perpetrate any robbery or burglary constituted first degree murder. Tenn. Code Ann. § 39-13-202(a)(2). He was also convicted of espe cially aggravated robbery. Especially aggravated robbery is the intentional or knowing theft of property from another person accomplished by a deadly weapon
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and the victim suffers serious bodily injury. Tenn. Code Ann. §§ 39-13-401 and -403.
From the record, it is clear that the evidence is sufficient to support the trial court’s refu sal to gran t these motions. While Defendant focuses upon the element of “prem editatio n” in his brief, this mental state was not required by these offenses and his argument is moot. In his own statement, Defendant adm itted to intentio nally using a revolv er to rob the victim of his sto re earn ings. W e note that all evidence admitted at the trial, even if admitted erroneously, can be considered when addressing a Defendant’s challenge to the sufficiency of the evidence to sustain the conviction. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981). While the Defendant claims to have accidentally fired the handgun, evidence demonstrated that it would take a significant amount of pressure to discharge the weapon. In any event, the reckle ss use o f the wea pon res ulting in the d eath of the victim wh ile Defendant comm itted a robb ery is sufficien t to constitute conviction s of felony murder a nd espec ially aggravated rob bery.
L ESSER INCLUDED O FFENSES
W hile we are addressing each of the issues raised by Defen dant, despite the fact that we have reversed the convictions based upon his first issue, we note that if the case is retried, any issue regarding the charging of lesser included offense s mus t be base d upon the reco rd prese nted in the new trial.
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Defendant argues that the trial court erred in refusing to ch arge the jury with the lesse r offenses of premed itated first degree m urder, including volun tary manslaughter and criminally negligent homicide. Reasoning that there was not adequate 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. T ennes see Ru le of App ellate 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 h ave the autho rity to ad dress the trial court’s failure to charge the jury on approp riate lesser offenses as plain error. Ten n. R. Crim. P. 5 2(b). Howeve r, for the reasons sta ted hereafter, we find no plain error.
The Defen dant wa s convicte d by the jury of second d egree m urder, felony murder and especially aggravated robbery. The trial court merged the offense of second degree murder into the co nviction for m urder in the perpetra tion of a felony. Likewise, even if the jury had been charged with voluntary manslaughter and crimin ally neglig ent ho micid e 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. Therefore, any error in failing to charge these offenses is harmless. Tenn. R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).
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P ROSECUTORIAL MISCONDUCT
Defendant asserts in his brief that th e State ’s prosecutor conducted hims elf inappropriately throu ghout the trial by failing to com ply with discovery, impe rmiss ibly communicating with a witness during trial recess, and noting Defe ndan t’s expun ged c onvictio n durin g the tria l. Defen dant’s motion for new trial spec ifically 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 comply 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 Defendant received the minimum sentence with reg ards to all coun ts. As th e Def enda nt’s rem aining assertions of prosecutorial misconduct were not specifically included within his motion for new trial, this issue is not properly 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).
C ONCLUSION
For the reaso ns sta ted in th is opinion addressing Defendant’s issue on the motion to suppre ss, the jud gmen ts of con viction fo r felony murd er and espe cially aggravated robbery are reversed. Reversal of the judgments also negates the
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merger of the s econ d deg ree m urder convic tion into the felony murder conviction. By return of a verdict of guilty of second degree murder, the jury acquitted the Defendant of the greater offense of premeditated first degree murder in that count of the ind ictme nt. Acc ording ly, this case is remanded for a new trial on the charges of one count of felony murder, one count of second degree murder, and one count of especially aggra vated robbe ry.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOHN H. PEAY, Judge
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JOE G. RILEY, JR., Judge