         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 7, 2006 Session

                      STATE OF TENNESSEE v. KEVIN RUDD

                      Appeal from the Criminal Court for Shelby County
                              No. 04-07507 Chris Craft, Judge



                  No. W2005-02814-CCA-R3-CD - Filed September 13, 2007


The appellant, Kevin Rudd, was indicted for the first degree murder of his wife. After a jury trial,
the appellant was found guilty of first degree murder and sentenced to life in prison. On appeal, the
appellant argues: (1) the trial court improperly admitted propensity evidence in violation of
Tennessee Rule of Evidence 404(b); (2) the trial court improperly denied a mistrial; and (3) the trial
court improperly denied a motion in limine to exclude testimony that indicated the appellant engaged
in shooting at other people. Because we determine that the trial court improperly admitted evidence
in violation of Tennessee Rule of Evidence 404(b), we reverse the judgment of the trial court and
remand for a new trial. The remaining issues are without merit.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                       Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
ROBERT W. WEDEMEYER , JJ., joined.

William D. Massey and Lorna McClusky, Memphis, Tennessee, for the appellant, Kevin Rudd.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
and William L. Gibbons, District Attorney General; Robert Carter and Alonda Dwyer, Assistant
District Attorney General,for the appellee, State of Tennessee.



                                             OPINION

       On November 2, 2004, the Shelby County Grand Jury indicted the appellant with first degree

murder for the shooting death of his wife, Traceye Rudd.
       On April 23, 2004, the victim was at her residence in Memphis with her three children,

Sedondra, Octavius and Nissa Ellis. Sedondra Ellis, who was fifteen at the time of the incident,

testified that on the night of April 22, 2004, she went to bed at around ten o’clock. She was

awakened around midnight by the sound of “my momma screaming [at the appellant], stop pulling

my hair.” Sedondra explained that she heard things get quiet, then heard her mother and the

appellant “just talking.” Then she heard some bumping noises and sounds coming from the direction

of her mother’s bedroom. She later heard her mother and the appellant talking in the living room

of the residence about her mother’s truck. According to Sedondra the victim refused to let the

appellant use her truck. Sedondra heard the appellant ask the victim for a hug and kiss. Sedondra

then described that it was quiet for about five minutes before she heard her mother say, “If you shoot

me, I know where I’m going, but do you know where you’re going[?]” Then Sedondra heard a

gunshot. When she heard the shot, she ran to the living room where she saw the victim lying on the

floor. Sedondra tried to call 911 from the telephone, but the cord had been ripped out of the wall.

Sedondra was able to call 911 from the fax machine in the living room.



       Octavius Ellis, who was ten years old at the time of the victim’s death, also heard the

appellant and the victim fighting that night. Octavius was awakened when he heard his mother

scream at the appellant to “stop pulling [her] hair.” Octavius got out of bed and walked down the

hall to his mother’s bedroom where he saw the appellant on top of the victim pinning her down. The

appellant told Octavius to get his “ass out” of the room. The victim told Octavius to go back to bed.

The victim then came to Octavius’ room and told him that everything was going to be alright.

Octavius noticed that the arm of the victim’s shirt was ripped. The victim left Octavius’ room.


                                                 -2-
Sometime later, Octavius also heard the appellant ask the victim for a hug. The victim refused.

Octavius heard the appellant ask the victim for the keys to her truck and the victim again refused.

Octavius, who was in his room with the door open, saw the appellant walk by and go into the

victim’s and the appellant’s bedroom. Octavius heard a drawer open and a “clicking noise” and saw

the appellant walk back down the hall with the back part of a gun sticking up out of his pants pocket.




       Octavius heard the appellant walk into the living room and again ask the victim for a hug.

Octavius heard the victim refuse, then heard silence before he heard the victim say, “If you shoot me,

I know where I’m going, but do you know where you’re going[?]” Octavius heard the victim say this

three times. Then Octavius heard a gunshot. He ran out into the living room where he saw the

victim lying on the floor with blood coming from her mouth and nose. There was also blood on the

victim’s shirt. Octavius ran outside and saw the appellant running away. Octavius threw rocks at

the appellant as he was running away.



       The victim’s children attempted to resuscitate her using CPR with the guidance of the 911

operator. However, when emergency personnel arrived on the scene, the victim was pronounced

dead. Crime scene investigators recovered a spent .9 millimeter shell casing in the living room. The

gun was never recovered.



       Teresa Allen Campbell, the Shelby County Medical Examiner, performed an autopsy on the

victim and was able to establish that the victim suffered a gunshot wound to her left face that went


                                                 -3-
through the edge of her nose and into her skull. Dr. Campbell opined that the victim was shot from

a distance of two to three feet.



        On April 24, 2003, the appellant turned himself in at the Fugitive Squad Office of the Shelby

County Sheriff’s Department. At trial, the appellant testified that he had been out of work for about

three months prior to the incident. Both the victim and the appellant had worked at Sharp

Manufacturing. The victim continued to work and pay the bills while the appellant was out of work.

The appellant explained that on the night of the incident, he arrived at his residence “late . . . around

midnight.” The appellant had been out drinking beer and admitted that he was intoxicated. When

he got home that night, the appellant ate some chicken and took a bath before getting into bed with

the victim. The victim asked him if he had “the money.” The appellant told the victim he did not

have the money and the two started arguing. The appellant claimed that the two kicked each other

and started fighting for a few minutes before Octavius came into the room and turned the light on

and saw the appellant on top of the victim, pinning her down. The appellant told Mr. Ellis to get his

“ass” out of the room. The appellant testified that he then got some blankets and a pillow and left

the bedroom to go sleep on the couch in the living room. According to the appellant, the victim then

came into the living room and pointed a gun at him.



        The appellant stated that the victim was pointing the gun at him and “hollering” at him to get

out of the house. The appellant claimed that he was “scared” so he asked the victim for the keys to

her truck. The victim told the appellant that he was not taking her truck. At that point, the appellant

claimed that he asked the victim for a hug and kiss “because [he] was trying to ease up on her so [he]


                                                  -4-
could grab the gun.” The appellant stated that he “got up on her and . . . grabbed the gun.” The two

“tussled” over the gun and the victim was saying something to the appellant when the gun fired. The

appellant stated that his finger was not on the trigger of the gun and that it went off by itself, shooting

the victim. The appellant claimed that he did not intentionally shoot the victim, but that the victim’s

death was her own fault. The appellant started running from the house and stopped to throw the gun

into a trash can down the street. The appellant was unable to explain why he did not stay at the

house and try to help save his wife.



        At the conclusion of the proof, the jury found the appellant guilty of first degree murder. As

a result, the appellant was sentenced to life in prison. On appeal, the appellant challenges several

evidentiary rulings made by the trial court.



                                                Analysis



        First, the appellant contends that the trial court improperly allowed the State to introduce

evidence during its case-in-chief that he had shot a woman in 1991 in Mississippi under

circumstances similar to the instant case. Specifically, the appellant argues that the introduction of

the 1991 killing encouraged the jury to convict him based on an “improper suggestion that [the

appellant] had a bad character trait of shooting women with who[m] he had a romantic relationship.”

The appellant also argues that the evidence of the prior killing was propensity evidence, that the

testimony was not relevant, that the evidence did not rebut the defense theory that the shooting was

an accident, and that the rebuttal provision of Tennessee Rule of Evidence 404(b) was improperly


                                                   -5-
applied to admit the evidence. The State contends that the appellant’s argument is without merit

because the trial court properly admitted the testimony.



        Prior to trial, the State filed a motion in the trial court to determine the admissibility of the

appellant’s involvement in the 1991 shooting death of Stephanie Truttle in Mississippi. The State

argued that the evidence of the prior shooting was admissible to show premeditation and that the

shooting alleged in the current indictment was not accidental. The trial court held a pretrial hearing

in accordance with Tennessee Rule of Evidence 404(b) to determine the admissibility of the prior

crime. At the hearing, the State called Julius Tate, a criminal investigator for the Coldwater,

Mississippi Police Department to testify that he investigated the 1991 death of Stephanie Truttle.

According to Officer Tate, Ms. Truttle died from a single gunshot wound to the head in the right

cheek. The appellant was the prime suspect and, when interviewed, informed the police that he and

Ms. Truttle had been arguing at her house. They left the house and went down the street where the

argument continued. At some point during the argument, the appellant shot her in the head. The

appellant later pled guilty to manslaughter. At the conclusion of the hearing, the trial court ruled that

if the appellant raised the defense of accident or mistake at trial, the evidence of the prior shooting

could be admitted after a jury-out hearing in accordance with Tennessee Rule of Evidence 404(b).

The trial court concluded that the facts of the prior killing “would heighten [the appellant’s] sense

of awareness” and it would be less likely that he would have pointed a gun in the victim’s face herein

by accident. Specifically, the trial court issued an order holding that:




                                                  -6-
[T]he State alleges that the defendant shot the victim . . . and anticipates that the

defense at trial will be that the firearm was discharged unintentionally. The State

wished to put on proof of a prior 1991 manslaughter for which the defendant was

convicted, to show absence of accident or mistake. After evidence presented at the

hearing, this court finds that a material issue exists other than conduct conforming

with a character trait of the defendant, that of rebuttal or absence of accident or

mistake. However, unless this theory is in fact offered by the defense, the danger of

unfair prejudice which attaches to this prior conviction or bad act would outweigh

its probative value.



This court also finds that if the defense does offer a theory or defense of accident or

mistake, that the probative value of the prior bad act on the defendant’s culpable

mental state, given the specific facts of both of these cases, is not outweighed by the

danger of unfair prejudice.



It is therefore, ORDERED, ADJUDGED, and DECREED that the State is precluded

from mentioning or offering proof of this prior bad act during jury selection, its

opening statement, or its case in chief, until and unless it feels the defense has

“opened the door” to this proof, and must then renew its request outside the presence

of the jury and have an additional hearing on this matter. If this court finds that the

defense or theory of accident or mistake has been fairly raised, and the requirements




                                         -7-
        and safeguards of Tenn. R. Evid. 403 and 404(b) have been met, the additional proof

        of this bad act and conviction would be allowed.



        At trial, during opening statements, counsel for the appellant painted a picture of the scene

for the jury in which the victim and the appellant were struggling for the gun when “[t]he gun

exploded and it hit [the victim] in the face,” and “the gun exploded as [the appellant] fell away from

[the victim].” In light of these statements by defense counsel, the State renewed its motion to

introduce the facts of the 1991 killing in order to rebut the defense theory of accident. The trial court

determined that the evidence was admissible to negate an innocent, negligent, reckless, or heat of

passion state of mind and that the probative value of the evidence was not outweighed by the danger

of unfair prejudice. The State called Officer Tate who gave testimony about the 1991 killing. After

the testimony, the trial court gave the jury a lengthy curative instruction, stating in part:



        We don’t use - - if someone has done something before, we don’t use that as proof

        that they did it again later.



                ....



        If from the proof you find that the defendant has committed a crime other than that

        for which he is on trial, you may not consider such evidence to prove his disposition

        to commit such a crime as that on trial.




                                                   -8-
This evidence if believed by you may only be considered by you for the limited

purpose of determining whether it provides proof or lack of proof of the defendant’s

alleged mental state at the alleged time of the offense now on trial.



You may never under any circumstances use this evidence as proof that the defendant

acted intentionally or with premeditation.



You may use this evidence in deciding whether or not the defendant acted knowingly

with an awareness that his alleged conduct was reasonably certain to cause the death

of the alleged victim.



You may use this evidence in deciding whether or not the defendant acted recklessly,

aware of but consciously disregarding a substantial and unjustifiable risk that the

alleged victim would be killed.



The risk must be of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise under all

the circumstances as viewed from the accused person’s standpoint.



You may use this evidence in deciding whether or not the defendant acted with

criminal negligence. That he ought to have been aware of a substantial and

unjustifiable risk that the alleged victim would be killed.


                                         -9-
       The risk must be of such a nature and degree that the failure to perceive it constitutes

       a gross deviation from the standard of care that an ordinary person would exercise

       under all the circumstances as viewed from the accused person’s standpoint.



       Again, if you find the defendant committed a crime other than that for which he is

       now on trial, you may not consider such evidence to prove his propensity or

       disposition to commit such a crime as that on trial or that the offense was intentional

       or premeditated.



       Such evidence of another crime if considered by you for any purpose at all must not

       be considered for any purpose other than to decide the defendant’s mental state at the

       time of the alleged shooting as specifically set out above.



       As we begin our analysis, we note well-established precedent providing “that trial courts have

broad discretion in determining the admissibility of evidence, and their rulings will not be reversed

absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Moreover,

the Tennessee Rules of Evidence embody, and our courts traditionally have acknowledged, “a policy

of liberality in the admission of evidence in both civil and criminal cases.” State v. Banks, 564

S.W.2d 947, 949 (Tenn. 1978); State v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). To

be admissible, evidence must satisfy the threshold determination of relevancy mandated by

Tennessee Rule of Evidence 401. See, e.g., Banks, 564 S.W.2d at 949. Rule 401 defines “relevant


                                                -10-
evidence” as being “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Tenn. R. Evid. 401. However, relevant “evidence may be excluded if its

probative value is substantially outweighed by . . . the danger of unfair prejudice.” Tenn. R. Evid.

403; see also Banks, 564 S.W.2d at 951. A trial court abuses its discretion in regards to the

admissibility of evidence only when it “applie[s] an incorrect legal standard, or reach[es] a decision

which is against logic or reasoning that cause[s] an injustice to the party complaining.” State v.

Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn.

1997)).



          The general rule is that evidence of a defendant’s prior conduct is inadmissible, especially

when previous crimes or acts are of the same character as the charged offense, because such evidence

is irrelevant and invites the “finder of fact to infer guilt from propensity.” State v. Hallock, 875

S.W.2d 285, 290 (Tenn. Crim. App. 1993). Tennessee Rule of Evidence 404(b) permits the

admission of evidence of prior conduct if the evidence of other acts is relevant to a litigated issue

such as identity, intent, or rebuttal of accident or mistake, and the probative value outweighs the

danger of unfair prejudice. See Tenn. R. Evid. 404(b) Advisory Comm’n Comments; State v.

Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App.

1987). However, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character trait.” Tenn. R. Evid.

404(b). Before admitting evidence under rule 404(b), the rule provides that (1) upon request, the

court must hold a hearing outside the jury’s presence; (2) the court must determine that the evidence


                                                  -11-
is probative on a material issue and must, if requested, state on the record the material issue and the

reasons for admitting or excluding the evidence; and (3) the court must exclude the evidence if the

danger of unfair prejudice outweighs its probative value. Tenn. R. Evid. 404(b).



        The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s prior bad acts

is that admission of such evidence carries with it the inherent risk of the jury convicting the

defendant of a crime based upon his bad character or propensity to commit a crime, rather than the

conviction resting upon the strength of the evidence. State v. Rickman, 876 S.W.2d 824, 828 (Tenn.

1994). The risk is greater when the defendant’s prior bad acts are similar to the crime for which the

defendant is on trial. Id.; see also State v. McCary, 922 S.W.2d 511, 514-15 (Tenn. 1996).



        We agree with the trial court that whether there was an accident or mistake with respect to

the discharge of the firearm was a material, contested issue at trial, and therefore the appellant’s prior

conviction was relevant to a material issue other than to show action in conformity with a character

trait. However, we recognize, as pointed out by the appellant that because opening statements by

counsel are not evidence, such statements will not alone “open the door” for the prosecution to

introduce evidence of other crimes because opening statements provide nothing for the State to rebut.

State v. Boris Terrell Traylor, No. 01C01-9104-CC-00124, 1992 WL 14140, at *2-*3 (Tenn. Crim.

App., at Nashville, January 31, 1992).



        In Boris Terrell Traylor, the defendant was indicted for robbery, aggravated kidnapping and

aggravated rape. During opening statements, defense counsel argued that the victim voluntarily got


                                                  -12-
into the defendant’s car. Further, defense counsel argued that the defendant was the victim of false

charges. In response to the opening statement, counsel for the State requested that it be allowed to

offer proof of the defendant’s prior convictions for kidnapping and assault with the intent to commit

rape during its case-in-chief because the defense counsel raised consent and the defendant’s intent

as an issue. The trial court agreed and allowed the testimony during the State’s case-in-chief. The

defendant did not take the stand or present any proof. On appeal, this Court examined several cases

from other jurisdictions and ultimately reversed and remanded the defendant’s case for a new trial,

concluding that



       opening statements are ‘intended merely to inform the trial judge and jury, in a

       general way, of the nature of the case and to outline, generally the facts each party

       intends to prove. Such statements do not amount to stipulations and certainly are not

       a substitute for the pleadings of evidence.



               ....



       Since opening statements by counsel are not evidence, there was simply nothing for

       the state to rebut without the introduction of ‘other crimes’ evidence. Therefore, this

       amounted to the introduction of propensity or disposition evidence. . . . If the

       opening statement in this case would justify the introduction of ‘other crimes’

       evidence, virtually no case would ever be tried without ‘other crimes’ evidence being

       presented in the prosecution’s case-in-chief. Defense counsel almost always argues


                                                -13-
         that the victim or the witnesses are mistaken or untruthful and that the defendant is

         the ‘victim of false charges.’



Boris Terrell Traylor, 1992 WL 14140, at *3 (internal citations omitted).1



         In State v. Copenny, 888 S.W.2d 450 (Tenn. Crim. App. 1993), the defendant was charged

with first degree murder. After a trial, he was convicted of second degree murder. There were no

witnesses to the shooting that claimed the life of the victim. During opening statements, the defense

argued that the victim was the first aggressor. The State introduced the testimony of Lawanda

Hughley at trial, who spent the weekend prior to the murder with the victim. Ms. Hughley testified

that she and the victim were walking to their car that weekend when someone called the victim’s

name and fired shots at their car. Ms. Hughley stated that the victim was not carrying a gun at the

time, nor had she ever known him to carry a gun before. Ms. Hughley explained that the victim

purchased a gun after that incident. The defendant later introduced testimony about an incident that

occurred four weeks prior to the shooting that indicated that the victim entered a lounge and

confronted the appellant. According to the testimony of a witness, the victim brandished a gun,

threatened the appellant and later attacked him. On appeal, the defendant argued that the trial court

improperly admitted Ms. Hughley’s testimony. The State argued that the testimony was admissible


         1
           At least one other panel of this Court has concluded that a trial court erred in determining that defense counsel
had “opened the door” to admission by the State of the appellant’s prior conviction for failure to appear when defense
counsel asserted in opening statements that he hoped to develop that the defendant was a “decent person,” but, in that
case, ultimately determined that the evidence was admissible due to the limited issue before the jury. State v. Nathan
McKissack, No. 01C01-9804-CC-00190, 1999 W L 77846, at *7 (Tenn. Crim. App., at Nashville, Feb. 19, 1999), perm.
app. denied concurring in results only (Tenn. Oct. 4, 1999). However, the Tennessee Supreme Court denied permission
to appeal in this case and stated that they concurred in the results only. Consequently, the holding of Nathan McKissack
is limited to the peculiar facts of that case and inapplicable to the case herein.

                                                           -14-
to rebut the defense theory that the victim was the first aggressor. This Court determined that the

testimony of Ms. Hughley was improperly admitted under Tennessee Rule of Evidence 404(a)(2)2

to rebut evidence that the victim was the first aggressor at the time it was admitted, as the defendant

had yet to proffer any evidence that the victim was the first aggressor. However, this Court

concluded that the admission of the evidence was harmless because it contained no specific reference

to the appellant as the person firing the shots and the evidence would have come in after the

defendant raised the issue of self-defense during his testimony. Id. at 455. We determine that

Copenny is distinguishable as it deals with the character of the victim under Tennessee Rule of

Evidence 404(a)(2), rather than the introduction of prior bad acts of the defendant under Tennessee

Rule of Evidence 404(b). Not only was there no specific reference to the defendant, this latter type

of evidence especially when it involves a crime similar to the one at bar carries with it a heightened

potential for unfair prejudice.



         In the case herein, we conclude that the admission of the testimony of Officer Tate was

improper. The evidence was admitted during the State’s case-in-chief in response to defense

counsel’s assertion during opening statements that the gun “exploded” while the appellant and the

victim were arguing. The opening statement of defense counsel was not evidence, so at the time the

testimony of Officer Tate was admitted, there was no evidence of accident or mistake to rebut, as

is the requirement for admission of prior bad acts under Tennessee Rule of Evidence 404(b).


         2
           Tennessee Rule of Evidence 404(a)(2) governs the introduction of evidence regarding the character of the
victim and provides that while not generally admissible for the purpose of proving action in conformity with the character
or trait on a particular occasion, “[e]vidence of a pertinent character trait of the victim of crime offered by an accused
or by the prosecution [is admissible] to rebut the same, or evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor [is admissible].”

                                                          -15-
Consequently, it was error for the trial court to admit the testimony of Officer Tate during the State’s

case-in-chief. Moreover, although the appellant later testified that the killing was accidental, we

find that the error was not harmless. Prior crimes evidence such as that involved in this case carries

with it such a high potential for undue prejudice that, in our opinion, the admission of such evidence

must be in strict compliance with the standards set forth in Rule 404(b) and the decisions of the

appellate courts. This is especially true in cases where the prior bad act or crime is essentially the

only proof used to rebut the defense such as accident or mistake. Consequently, we must reverse the

appellant’s conviction and remand for a new trial. On remand, if the State seeks to introduce the

testimony of Officer Tate and the evidence of the appellant’s prior crime after the appellant

introduces evidence that the shooting was an accident, the trial court should then determine whether

the evidence is admissible under Tennessee Rule of Evidence 404(b) to rebut the theory of accident,

keeping in mind the remoteness in time of the Mississippi conviction and the high potential for

undue prejudice due to the similarities between the Mississippi incident and the proof in the instant

case.

        Although unnecessary to the disposition of this appeal, we will address the remaining issues

in the event of further appeal to the Supreme Court of Tennessee.



                                          Denial of Mistrial



        The appellant argues that the trial court improperly denied his motion for a mistrial after the

testimony of Officer Tate wherein counsel for the State referred to the 1991 death of Stephanie

Truttle as a “murder.” Specifically, the appellant argues that the improper statement by the


                                                 -16-
prosecutor was prejudicial and affected the verdict. The State argues that the trial court properly

denied the motion for mistrial because the State did not intentionally use the word murder, the jury

was instructed that statements of counsel are not evidence, and the trial court immediately gave the

jury a curative instruction.



       At trial, the following exchange occurred between the prosecutor and witness Officer Tate.



       PROSECUTOR: While on the Coldwater Police Department, did you come to

       investigate the murder of a Stephanie Truttle?

       WITNESS: Yes, I did.

       DEFENSE COUNSEL: Your honor, I object.

       THE COURT: All right. Would you all approach the bench for a second?

       PROSECUTOR: I’m sorry. I’ll rephrase that. I meant to say homicide.

       THE COURT: No. We need to say the [word] death. Okay?

       DEFENSE COUNSEL: I’ll ask to the Court to instruct the jury to disregard that

       statement of counsel.



Immediately thereafter, the trial court instructed the jury as follows:



       I’ve already told you that questions of attorneys are not proof. [The prosecutor] used

       the word murder which was an improper word. We’re going to use the word death

       of this other person instead. In no way should you assume that this person was


                                                 -17-
        murdered. Does everybody understand that? This person died if there is proof to that

        affect.



        At the conclusion of Officer Tate’s testimony, defense counsel renewed their motion for a

mistrial on the basis of the prosecutor’s use of the word “murder.” Defense counsel argued that the

statement “put murder in [the juror’s] mind[s]” even though the trial court gave a curative

instruction. The trial court determined that the curative instruction was satisfactory and denied the

motion for mistrial. On appeal, the appellant argues that the curative instruction was “wholly

ineffective” and that the conduct of the prosecutor was “analogous to improper prosecutorial

argument to the jury.”



        The purpose of a mistrial is to correct the damage done to the judicial process when some

event has occurred which would preclude an impartial verdict. See Arnold v. State, 563 S.W.2d 792,

794 (Tenn. Crim. App. 1977). The decision whether to grant a mistrial is within the trial court's

discretion and will not be disturbed absent an abuse of that discretion. State v. Millbrooks, 819

S.W.2d 441, 443 (Tenn. Crim. App. 1991). For this reason, an appellate court’s review should

provide considerable deference to the trial court’s ruling in determining whether an occurrence or

event at trial has so prejudiced the defendant or the State as to preclude a fair and impartial verdict.

State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).



        Factors which must be considered in determining whether improper prosecutorial conduct

affected the jury verdict to the prejudice of the defendant are (1) the conduct complained of viewed


                                                 -18-
in context and in light of the facts and circumstances of the case; (2) the curative measures

undertaken by the Court and the prosecution; (3) the intent of the prosecutor in making the improper

statement; (4) the cumulative effect of the improper conduct and any other errors in the record; and,

(5) the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.

App. 1976).



       Looking to the factors and applying them to the case herein, it is clear that the prosecutor

should not have used the word murder to describe the 1991 death during the questioning of Officer

Tate, especially when the appellant was on trial for a crime with similar facts. However, the trial

court immediately undertook to instruct the jury that they were not to consider the word murder in

the context of the 1991 death. Further, the prosecutor immediately recognized her mistake and from

that point forward referred the “death” of Stephanie Truttle in 1991. The record before us does not

support a conclusion that a miscarriage of justice occurred by continuing the trial after the

prosecutor’s improper reference to the death as a murder. See State v. McPherson, 882 S.W.2d 365,

370 (Tenn. Crim. App. 1994). Again, the decision to grant a mistrial is within the sound discretion

of the trial court. No clear abuse of discretion appears on the face of the record, and, therefore, we

will not disturb the trial court’s decision to deny the appellant’s motion for a mistrial. Id.



                                    Denial of Motion in Limine



       Lastly, the appellant contends that the trial court improperly denied his motion in limine to

exclude testimony by Octavius Ellis that he had seen the appellant shoot at people before.


                                                 -19-
Specifically, the appellant argues that the testimony constituted evidence of a prior bad act and again

was prohibited by Tennessee Rule of Evidence 404(b) because it was not relevant to a material issue

in the case “other than propensity of the defendant to commit bad acts.” The State disagrees, arguing

that any error is attributed to the appellant because defense counsel elicited the testimony in question.



        Prior to trial, the trial court stated that Octavius Ellis could testify that the appellant had a

gun, if based on personal knowledge, but not that he saw the appellant shooting at other people.

However, the trial court ultimately ruled that it was not going to grant the motion in limine to

prohibit the testimony of Octavius Ellis regarding the appellant’s ownership of a gun. At trial,

during the cross-examination of Octavius Ellis, the following exchange occurred between defense

counsel and Octavius Ellis.



        DEFENSE COUNSEL: Octavius, I want to talk to you about this gun. You didn’t

        know where this gun was kept?

        WITNESS: No, sir.

        DEFENSE COUNSEL: Did you ever see the gun before?

        WITNESS: Yes, sir. I saw it when he [the appellant] was shooting at somebody.

        DEFENSE COUNSEL: I’m sorry, I can’t hear you?

        WITNESS: When he [the appellant] was shooting at somebody.

        THE COURT: When he [the appellant] was shooting at somebody.

        DEFENSE COUNSEL: Okay. You had seen this gun before at another time?

        WITNESS: Yes, sir.


                                                  -20-
Thus, defense counsel elicited the testimony from the witness.



         From looking at the record, it is obvious that the State did not elicit the testimony herein.

The testimony was elicited by defense counsel on cross-examination of the witness. Consequently,

any error regarding the testimony is attributed to the defendant. See Tenn. R. App. P. 36(a). This

issue is without merit.



                                             Conclusion



         For the foregoing reasons, the judgment of the trial court is reversed and remanded for a new

trial.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




                                                 -21-
