         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 26, 2001 Session

                STATE OF TENNESSEE v. DEMETRIUS HOLMES

                   Direct Appeal from the Criminal Court for Knox County
                        No. 67734    Richard R. Baumgartner, Judge



                                  No. E2000-02263-CCA-R3-CD



Robert W. Wedemeyer, J., dissenting

        I respectfully dissent. I agree with the majority opinion that the granting or denial of a
mistrial is a matter within the sound discretion of the trial court and that a trial court should grant
a mistrial only when it is of “manifest necessity.” I would add that the burden of establishing a
“manifest necessity” is upon the appellant. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim.
App. 1996).

        From the entire record pertaining to the issue of a mistrial in this case, I conclude that the
testimony by Detective Clowers was an inappropriate comment that was not responsive to defense
counsel’s question and that was prejudicial to the Defendant. However, in light of the overwhelming
evidence of the Defendant’s guilt presented in this case and in light of the curative instruction
regarding Detective Clowers’ statement, I also conclude that the trial court did not abuse its
discretion in denying the motion for a mistrial. Further, I conclude that if any error was committed
by the trial court concerning this issue, such error was harmless. See Tenn. R. App. P. 36(b).
Therefore, I would affirm the judgment of the trial court.



                                                       ____________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE
