          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             JUNE 1998 SESSION
                                                    FILED
                                                        July 24, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     ) C.C.A. No. 02C01-9707-CC-00276
      Appellee,                      )
                                     ) Madison County
V.                                   )
                                     ) Honorable W hit Lafon, Judge
DEMOND MALIK JOHNSON,                )
                                     ) (Attempted Second Degree Murder;
      Appellant.                     ) Aggravated Assault; Reckless
                                     ) Endangerment)




FOR THE APPELLANT:                   FOR THE APPELLEE:

On Appeal:
Clifford K. McCown, Jr.              John Knox Walkup
Attorney at Law                      Attorney General & Reporter
113 North Court Square
P.O. Box 26                          Marvin E. Clements, Jr.
Waverly, TN 37185                    Assistant Attorney General
                                     425 Fifth Avenue North
At Trial and Of Counsel              Cordell Hull Building, Second Floor
on Appeal:                           Nashville, TN 37243
George Morton Googe
District Public Defender             Jerry Woodall
                                     District Attorney General
Stephen P. Spracher
Assistant District Public Defender   James W. Thompson
227 West Baltimore Street                 Assistant District Attorney
General
Jackson, TN 38301                    P.O. Box 2825
                                     Jackson, TN 38301




OPINION FILED: _______________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                      OPINION



         In 1996, the appellant, Demond Malik Johnson, was indicted for attempt

to commit first degree murder, aggravated assault, and reckless endangerment.

In January 1997, a jury convicted him of attempt to commit second degree

murder, aggravated assault, and reckless endangerment. The trial court

sentenced him to eight years, six years, and two years, respectively. His

sentences were ordered to run concurrently, for a total effective sentence of

eight years.



         The appellant presents three issues for our review: (1) whether the pretrial

remarks by the trial court, in the presence of the jury, were prejudicial to him and

tainted the jury pool so that he did not receive a fair trial; (2) whether the trial

court’s interruption of his defense counsel during voir dire and the court’s

subsequent refusal to allow full and complete voir dire prevented him from

selecting and impaneling a fair and impartial jury; and (3) whether the evidence

is sufficient to support a verdict of guilty. We affirm the judgment of the trial

court.



         The appellant was the next door neighbor of Stacy and Terry Perry. On

February 27, 1996, Mrs. Perry and the appellant were involved in an argument.

Mrs. Perry called her husband, Terry Perry, at work, and he came home. Mr.

Perry and the appellant then got into an argument, and the appellant shot Mr.

Perry in the right leg. Stacy Perry testified that her children were present during

the shooting.



         The appellant testified that Mr. Perry had a gun and when he pulled his

gun, the appellant fired his own gun and shot Perry because he was trying to

protect his family and himself.

         In his first issue, the appellant argues that the trial court made pretrial



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remarks, in the presence of the jury pool, that prejudiced the jurors against him

so that he did not receive a fair trial. He asserts that the trial court was

concerned about a delay in bringing prisoners from the jail to the courtroom for

court appearances. The trial court stated: “Bring the Defendant down. Ladies

and gentlemen, there are many reasons that a person is upstairs in the jail, that

they are a danger to the community or that they just can’t afford to make a bond

or whatever.” Defense counsel, in a bench conference and out of the hearing of

the jury pool, stated his objection, for the record, to the court’s comments, stating

that the comment implies that this is a serious case and that the defendant is not

on bond, thereby indicating that this defendant was not a regular defendant.

After the jury panel was sworn, the court continued by stating the following:

               Now this morning, the Defendant has been in jail, and
       normal procedure in criminal matters, people have - - are charged
       with crimes. They are then put in jail and a bond is set, and if
       there is no bond made - - In some instances the Court decides that
       the person could potentially be dangerous. They do not set a
       bond. But at any rate, that wasn’t in this case as far as I’m
       concerned. But be it anyway, this gentleman was in jail, and
       the jails are crowded. The Sheriff had to transport some people
       out last week to other jails because of the crowded condition,
       and it sometimes take (sic) a little time to get them in and here
       for the trial. So I just told these officers tomorrow and every other
       day I expect them to be more prompt. But that’s the reason for
       the delay. No fault of the Defendant at all, but it’s just part of the
       system .

The appellant insists that the appellant’s case should have been continued and a

new jury pool selected.



       The state argues that the trial court’s pretrial statement did not deny the

appellant a fair trial. It contends that the record indicates that the trial court was

trying to explain to the prospective jurors that the appellant’s tardiness was not

his fault. Thus, there is no indication that the trial court was attempting to

prejudice the appellant. Furthermore, it appears that the appellant was wearing

his jail uniform at trial, so the state contends that the trial court’s explanation to

the prospective jurors was actually beneficial to the appellant. The state

maintains that any error was harmless.




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       From the record, the trial court’s remark appears to have been made in an

effort to get the appellant into the courtroom so that the trial could begin. His

explanation later indicates that he was not trying to prejudice the appellant but to

fairly and accurately explain the circumstances. We do not believe there to be

error that adversely affected the appellant’s right to a fair and impartial jury. See

State v. Adkisson, 899 S.W.2d 626, 639-42 (Tenn. Crim. App. 1994).



       Second, the appellant argues that the trial court’s interruption of defense

counsel during voir dire and its later refusal to allow full and complete voir dire

regarding the prospective jurors’ attitude toward crime in general prevented the

appellant from selecting and impaneling a fair and impartial jury.      He further

contends that the trial court’s actions “prevented the defendant from effectively

exercising his peremptory challenges.”



       The state contends that the appellant had an opportunity to conduct

adequate voir dire, thus impaneling a fair and impartial jury. It insists that the

appellant has failed to support his claim “beyond mere speculation.”        Further,

although the state concedes that the trial court did interject during voir dire, the

state insists that the appellant has not shown that he was prejudiced by any error

committed during voir dire, so the jurors are presumed to have followed the trial

court’s instructions and applied the law to the evidence presented at trial.



       The ultimate goal of voir dire is to insure that jurors are competent,

unbiased, and impartial. State v. Stephenson, 878 S.W.2d 530, 540 (Tenn.

1994). Control of voir dire generally rests within the sound discretion of the trial

judge. Id.



       The trial court did interrupt during the appellant’s voir dire of the jury.

However, as the state notes, the appellant has not demonstrated that he was

denied a fair and impartial jury. We find no error by the trial court in light of the



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evidence of the appellant’s guilt. This issue is without merit.



       Finally, the appellant argues that the evidence is insufficient to sustain a

verdict of guilty. In conclusory statements, the appellant contends that “[g]iven

the prejudicial actions of the trial court judge in this matter, taken with the record

as a whole, the defendant respectfully submits that he was erroneously

convicted,” arguing that he should have been granted a judgment of acquittal

based upon a theory of self-defense.



       The state maintains that the evidence is sufficient to support the jury’s

verdict. It argues that the evidence adduced at trial showed that the appellant

shot Terry Perry, striking him in the leg. Also, several other individuals were

nearby. Therefore, the state insists the evidence is sufficient to support the

convictions.



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);



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Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



      From our review of the record, the appellant shot the victim while other

individuals were nearby. The evidence is sufficient to sustain the appellant’s

convictions.



      Finding no error mandating reversal, we affirm the trial court’s judgment.




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                                     ________________________
                                     PAUL G. SUMMERS, Judge


CONCUR:




____________________________
DAVID H. WELLES, Judge




____________________________
JOE G. RILEY, Judge




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