IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE June 4, 1999
Cecil Crowson, Jr.
FEBRUARY SESSION, 1999 Appe llate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CC-00105 )
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
WILLIAM DOTSON, ) JUDGE )
Appe llant. ) (Direct Appeal - Attempted Second ) Degree Murder and Aggravated ) Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
JOE COSTNER JOHN KNOX WALKUP 315 High Street Attorney General and Reporter Maryville, TN 37804 TODD R. KELLEY
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
EDWARD P. BAILEY, JR.
KIRK ANDREWS
Assistant District Attorneys 363 Court Street
Maryville, TN 37804
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE
OPINION
On February 20, 1990, Appellant William Dotson was indicted by the Blount Coun ty Grand Jury for attempted first degree murder, aggravated assau lt, and aggravated robbery . After a jury trial on Nove mber 19 –22, 1996 , the jury acquitted Appellant of attempted first degree murder, but failed to reach a verdict on the charge of aggravated robbery, the charge of aggravated assault, and on all lesser included offenses of attempted first degree murder and aggravated robbery. Appellant was subsequently tried for attempted second degree murder and aggra vated robbe ry on J uly 15 –17, 1 997. O n July 17, 1997, Appellant was convicted of attemp ted second degree murder and aggravated robbery. On February 23, 1998, the trial cou rt sentenced A ppellant as a R ange I stand ard offender to consecutive terms of twelve years for each conviction. Appellant challenges his convictions, raising the following issue: w hether the trial court erred when it refused to grant a mistrial after a witness for the Sta te testified that Appellant had been arreste d for a federal paro le violation. After a review of the record , we re verse the jud gme nt of the trial cou rt and re man d for a n ew tria l.
FACTS
Steven Bartlett testified that he was working as a gas attendant at the Smoky View Mark et in Blo unt C ounty on De cem ber 31 , 1989 . At app roxim ately 11:00 p.m., Bartlett was checking the gas pumps when a dark-colored 1979 Cama ro pulled into the parking lot. When two men wearing ski masks and
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carrying guns got out of the Camaro and went into the store, Bartlett hid behind a gas p ump . While he wa s beh ind the pum p, Bar tlett cou ld see that the driver of the Cam aro ha d rem ained in the vehicle. Bartlett identified the driver as Larry Goodwin. The two men stayed in the store for approximately five to ten minutes before getting back in the Camaro.
Kari Irwin testified that she was working at the Smoky View Market on December 31, 1989, when she heard a customer scream. Irwin then looked up and saw one man pointing a gun at her and saw another man with a gun standing next to a pay phon e by th e doo r. The m an wh o was pointin g a gu n at Irw in ordered her to open the ca sh register. Irwin ope ned the registe r, and the armed man took the money from the register and took a bag that had m oney in it. Irwin testified that even though both of the armed men were wearing ski masks, she could tell that the man pointing the gun at her was Caucasian and had blue eyes. When the two men left, Irwin called the owner of the store and the police. Irwin could no t identify the m an wh o pointed a gun a t her.
Depu ty Jerry Orr of the Blount County Sheriff’s Department testified that on the evening of December 31, 1989, he received a report that there had been an armed robbery at the Smo ky View M arket. Orr also received information that a 1970 ’s mo del da rk-colo red C ama ro wa s involved in the ro bbery . Shor tly thereafter, Orr saw a vehicle that matched the description he had been given. Orr then notified some other police officers that he had seen the vehicle and he began pursuit. When Orr turned on the blue lights of his police vehicle, the front
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passenger of the Ca maro c limbed through the w indow, sat on top of the door, and fired three shots at Orr. Orr testified that the man who shot at him had the same amou nt of baldn ess as A ppellant.
Orr testified that as he continued the pursuit of the Camaro, he and the front passenger of the Camaro exchanged gunfire. Shortly thereafter, several other police officers joined the chase. Orr testified that at one point in the chase, his car collided with the Camaro, and he was able to see that the driver of the Cama ro was Richard Burchfield. Orr subsequently lost sight of the Camaro, but he even tually saw that the Camaro had been driven into a lake and some other police officers ha d taken Good win into cu stody. O rr testified that he had seen that Go odwin w as the pa sseng er in the ba ck seat o f the Cam aro.
Officer Ron Boruff of the Alcoa, Tennessee Police Department testified that he participated in the pursuit of the Camaro on December 31, 1989. When O rr left the chase, Boruff continued the pursuit. The front passenger of the Cam aro fired three sh ots at Bo ruff. Boruf f contin ued p ursuit u ntil the Cam aro drov e into a shallow lake. The driver and the front passenger got out of the Camaro and ran away, but Goodwin fell as he attempted to run and he was apprehended by Boruff an d anoth er officer.
Sandra Norto n testifie d that G oodw in, Bur chfield , and A ppella nt we re all at her house on December 31, 1989. The three men arrived at Norton’s house at approximately 6:00 or 6:30 p.m. and they left approximately one hour later.
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Norton was not sure whether the thre e me n all left in the same vehicle, but she knew that at leas t one of the m drov e awa y in a dark Cam aro.
Richard Burchfield testified that he had been drinking heavily all day on December 31, 1989. Burchfield testified that although he had pled guilty to the robbery of the Smoky View Market and to aggravated assault, he could not remember going into the market and he could not remember who had entered the market with him. Burchfield testified that he had been driving the Camaro when it went into the lake, b ut he c ould n ot rem emb er wh o else was in the ca r with h im when it went into th e lake. H e assu med th at Goo dwin an d Appe llant were with him becau se that is w hat he h ad bee n told. Bur chfield could not remember whether he had fired any s hots during the police chase, but he did not think that he had. Burchfield also testified that he turned himself in to the police the next day.
Larry Goodwin testified that he met Appellant and Burchfield at the place where Burchfield was living on December 31, 1989. Later that evening, the three men went to the Smoky View Market. Goodwin testified that he drove the Cama ro to the market, Burchfield sat in the front passenger seat, and Appellant sat in the bac k seat. W hen they reached the store, Goodwin stayed in the car while Appellant and Burchfield went in. When the two men came out of the marke t, Burch field go t in the front passenger seat and Appellant got in the back. Good win then drove a way.
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Goo dwin testified that shortly after he drove away from the Smoky View Marke t, Burch field told him to stop th e veh icle. Bu rchfield got in the driv er’s seat, Goodwin got in the b ack sea t, and Ap pellant go t in the front p assen ger sea t. When a police vehicle began pursuit, Appellant leaned out of the front passenger window and began shooting at the police vehicle with a rifle and then with a pistol.
Goo dwin testified that after he was caught, he had initially lied to the police about the events surrounding the rob bery a nd su bseq uent c hase . Goo dwin also testified that he had given several different acc ounts of the ev ents. How ever, Good win testified that he w as telling the truth at trial.
Depu ty Marshall Ronald Donelson of the United States Department of Justice testified that he arrested Appellant in Greenville, South Carolina, on Ap ril 24, 1995. W hen the prosec utor aske d Don elson w hy he h ad arres ted App ellant, Donelson responded, “Mr. Dotson was arrested on the basis o f a fede ral paro le violation warrant.” Defense counsel then requested a bench conference during which he objected to Donelson’s statement, requested a curative instruction, and moved for a m istrial. Th e trial court told defense counsel it would consider the motion for a mistrial and the court gave the prosecutor specific instructions about how to question Donelson. After a series of questions, the prosecutor asked Donelson whether Appellant was arrested on a fugitive warrant from Tennessee for flight to avoid prosecution for the charges at issue in this case. Donelson then stated, “That’s another reason, yes, sir.” Defense counsel then requested
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another bench conference during which he again m oved for a mistrial because Donelson had “just reinforced what he sa id earlier.” The trial court stated that it wou ld cons ider the matte r later, an d the p rosec utor co ntinue d with D onels on’s direct examination. At the beginning of trial the next day, the trial court instructed the jury as follows:
Yesterday, you heard testimony, one of the last witnesses, a Deputy U.S.
Mars hall, Ron Donelson. You’re instructed to disregard the statement by Mr. Donelson that the Defen dant, M r. Dotson , was arre sted in S outh Carolina on fede ral proce ss, and y ou sha ll not consid er that part of his testimon y for any p urpose at all.
Although the reco rd is not en tirely clear, this instruction was apparently given
approx imately e ighteen hours a fter Done lson’s testim ony.
ANA LYSIS
Appellant contends that the trial court should have granted his request for a mistrial after Donelson testified that Appellant had been arrested for a federal parole violation. Specifically, Appellant contends that he was prejudiced by Don elson ’s testimony because it informed the jury that Appe llant had been convicted of some unknown federal crime in the past and created the impression that Appe llant had violated his federal parole by committing the offenses for which he was charged in this case. Appellant also contends that when Donelson testified that the Tennessee fugitive warrant was “another reason” that Appellant had been arrested, this reinforced the testimony about the federal parole violation and also created the impression that Appellant was facing other charges besides those in this case . Appellant place s great em phasis on the fact that the trial court
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failed to give a curative instruction until approximately eighteen hours after Donelson’s improper testimony.1
The decision of wheth er to grant a mistrial is within the sound discretion of the trial court. State v. McKinney, 929 S.W .2d 404, 405 (Tenn. Crim . App. 1996 ). This Court will not disturb that decision absent a finding of an abuse of discretion. State v. Adkins, 786 S.W .2d 642 , 644 (Te nn. 199 0). “Gen erally, a mistrial will be declared in a criminal case only when there is a ‘manifest necessity’ requiring such action by the trial judge .” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). “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). In determining whet her the re is a “manifest necessity” for a mistrial, “‘no abstract formula should be mechanically applied and all circumstances should be taken into account.’” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (citation omitted).
There is no ques tion tha t Don elson ’s testim ony a bout A ppella nt’s federal parole violation was im prope r. This te stimo ny ob vious ly had no relevance to any issue in the case and w as clea rly preju dicial. D onels on’s testimony informed the jury that Appellant had previously been convicted of a federal crime and created the impression th at Appellant ha d violated his fede ral parole by committing the
1 We note that Appellant does not contend that the prosecutor intentionally elicited the objec tiona ble te stim ony from Don elso n or a cted impr ope rly in a ny ot her m ann er in c onn ectio n with this testimony. In fact, defense counsel expressly stated during the hearing on Appellant’s motion for a new trial that the pro secuto r had ne ver acte d impro perly in reg ard to Do nelson’s testimon y.
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offenses for wh ich he was c harge d in this case . In add ition, Do nelso n’s subsequent testimony that the Tennessee fugitive warrant was “another reason” that Appellant was arr ested se rved to emp hasiz e the te stimo ny ab out Ap pellan t’s federal parole violation. Of course, even though Donelson’s testimony about Appe llant’s federa l parole violatio n was clearly inadm issible a nd wa s clear ly prejud icial, a mistrial was only required if the error created a “manifest necessity” for a mistria l.
We have exam ined n ume rous c ases in which th e failure to g rant a mistrial has been upheld on appeal. While Tennessee Courts do not apply any rigid test when examining the failure to grant a mistrial after a witness has given improper testimony, there are certain factors that are often considered: (1) whether the improper testimony was elicited by the State or whether it was a spontaneous declaration by the witness, (2) whether the case against the defendant was strong or weak, and (3) whether the trial court gave a prompt curative instruction.2 See, e.g., State v. Hall, 976 S.W.2d 121, 147–48 (Tenn. 1998) (holding that improper testimony about defendant’s prior crime did not create a manifest neces sity for a mistrial because trial court gave an immediate curative instruction); State v. Ma this, 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997) (holding that improper testimony did not cre ate a m anifest ne cessity for a mistrial because trial court ga ve a pro mpt cu rative instru ction); State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about
2 We note that these three factors are by no means the only factors which are relevant to a determination of whether the trial court properly refused to grant a mistrial nor is it necessary to examine these factors in every unique case. Rather, these are three factors which are often examined in cases such as this one, and we conclude that they are especially important in this case.
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defen dant’s prior incarceration did not create a manifest necessity for a mistrial because trial court gave a promp t curative ins truction); State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996) (holding that improper testimony about defen dant’s prior crime did not create a manifest necessity for a mistrial because the evidence of defend ant’s guilt w as ove rwhelm ing); William s, 929 S.W.2d at 388 (holding that improper testimony about defendant’s prior bad acts did not create a manifest necessity for a mistrial because trial court ga ve an im media te curative instruction ); State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993) (holding that improper testimony did not create a ma nifest necessity for a mistrial because the evidence against the defendant was strong and the trial court gave an imme diate cura tive instructio n); Millbrooks, 819 S.W.2d at 443 (holding that improper testimony did not create a manifest necessity for a mistrial because trial court gave a promp t curative ins truction); State v. David T. Jones, No. 01C01- 9710-CC-00445, 1998 WL 917810, at *2 (Tenn. Crim. App., Nashville, Dec. 21, 1998) (holding that improper testimony did not create a manifest necessity for a mistrial because the testimony was wholly unsolicited, there was overwhelming evidence of guilt, and th e trial court g ave an imme diate cura tive instructio n); State v. Bill Sandel, No. 03C01-9606-CC-00237, 1998 WL 28260, at *3 (Tenn. Crim. App., Knoxville, Jan. 26, 1998) (holding that improper testimony about defend ant’s prior c riminal ac ts did not cre ate a m anifest ne cessity for a mistrial because the testimony was spontaneous and nonresponsive and the trial court gave a proper curative instruction); State v. Grover Livesay, No. 03C01-9510-CC- 00298, 1996 WL 578499, at *3–4 (Tenn. Crim. App., Knoxville, Oct 9, 1996) (holding that improper testimony did not create a ma nifest necessity for a mistrial
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because the testimony was unresponsive and the trial court gave an imm ediate curative instruction).
Initially, we note that contrary to the State’s assertions, the prosecutor in this case is not entirely blameless for Donelson’s improp er statem ents. W e agree with the State tha t there is nothing in the re cord which indicates that the prosecutor intentiona lly elicited Do nelson ’s statem ent that A ppellant had been arrested for a feder al parole v iolation. In fact, it appears from the record that the prosecutor did not expect Donelson to refer to the federal parole violation. Howe ver, Donelson’s response was hardly unforeseeable. Inde ed, it is reaso nable to assume that when a United States deputy marshall who has arrested a person because of a federal parole violation is asked why he arrested that person, the deputy marshall would likely respond that he arrested the person for a federa l parole vio lation. The prosec utor should hav e fores een th at his question about why Appellant was arrested invited exactly the kind of response that Donelson gave.
Second, we note that the evidence of Appellant’s guilt was far from overwhelming. Although several witnesses testified that one of the masked men who comm itted the armed robbery and subsequently fled the police in the Cama ro had physical characteristics that were generally consistent with those of Appe llant, Goodwin was the only witness who ever positively identified Appellant as one o f the pe rpetra tors of th e crim es at iss ue in th is case . Furthe r, Goo dwin expre ssly adm itted tha t he ha d bee n untru thful in s evera l of the statements he
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had given the police in regard to the armed robbery and subsequent police chase. Goodwin testified that in his initial interview with the police, he had lied about several asp ects o f the rob bery a nd ca r chas e and had a lso with held information about his two accomplices. Goodwin also testified that he subs eque ntly gave the po lice as m any d ifferent s tories a bout th e eve nts in question as he possibly could. Goodwin testified that in addition to lying to the police, he ha d also lied to o ther pe ople abou t the ev ents a t issue in this case. In addition, Goodwin testified that his criminal record c onsis ted of a pprox imate ly twenty-s even fe lony con victions.
Third, we no te that th e trial co urt did not give a curative instruction until the day after Donelson had testified, and although the record is not entirely clear, the instruction was apparently not given until approximately eighteen hours after the improp er testimo ny. We agree with the State that there is no per s e rule that a curative instruc tion m ust be given imm ediate ly in order to b e effective . Howev er, as indicated by the authorities cited above, the vast majority of cases in which Tennessee Cour ts hav e uph eld a tria l court’s failure to grant a mistria l in situations similar to the one in this case have based that determination at least partly on the fact tha t a cura tive instruction was given immediately or at least shortly after the improper testimony. We conclude that in this case, the trial court’s failure to give a promp t curative ins truction afte r Done lson referr ed to Appe llant’s federa l parole violatio n and subs eque ntly reinforced that testimony was especially prejudicial. The general rule is that the jury is presumed to follow the trial cou rt’s instruction not to con sider the im proper te stimon y. See Math is,
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969 S.W.2d at 422. However, because the trial court did not give the curative instruction until the day after Donelson made the imprope r statements, the jury had a minim um of a pproxim ately eigh teen ho urs durin g which they we re free to consider the fact that Appellant had been arrested for a federal parole violation. It is clear that Donelson’s improper testimony created the need for a prompt curative instruction in order to p revent u nfair prejud ice to Ap pellant, an d in fact, the prosec utor exp ressly ag reed w ith defense counsel that Donelson’s improper testimony required a prompt curative instruction.3
We conclude that in this case, Donelson’s improper testimony about Appe llant’s federal parole violation created a “manifest necessity” for a mistrial because the trial court’s failure to give a curative instruction until appro xima tely eighteen hours after the improper testimony precluded an impartial verdict. It has not escaped our notice that the jury in Appellant’s first trial was unable to reach a verdict on the charges for attempted second degree murder, aggravated robbery, and all lesser included offenses.4 While we do not have the transcript of the first trial before us, we presume that Donelson did not testify about Appe llant’s federal parole violation in th e first trial. If Done lson did n ot testify about Appe llant’s fe deral p arole v iolation in the first trial, the n App ellant’s argument that he was unfairly prejudiced by the improper testimony in the second trial is strengthened even more . If Done lson d id give the im prope r testim ony in
3 The reco rd ind icate s tha t after objec ting to Don elso n’s re feren ce to App ellant ’s fed eral p arole violation, defense counsel stated that he believed the trial court should “instruct the Jury to disregard what [Donelson] just said.” The prosecutor then stated, “Yeah, I think you better.”
4 The record indicates that for the charge of attempted second degree murder, seven jurors voted for guilty and five jurors voted for not guilty. For the charge of aggravated robbery, nine jurors voted for guilty and th ree jurors voted for n ot guilty.
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the first tria l, the pro secu tor’s failu re to pre vent th is error from h appe ning a gain in the second trial is inexcusable.
Accordingly, the jud gme nt of the trial cou rt is RE VER SED and th is case is REM AND ED fo r a new trial.
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JERRY L. SMITH, JUDGE
CONCUR:
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GARY R. WADE, PRESIDING JUDGE
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L. T. LAFFERTY, SENIOR JUDGE