         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 25, 2001 Session

                    STATE OF TENNESSEE v. ANTHONY REID

                 Direct Appeal from the Criminal Court for Bradley County
                           No. M-99-338     Carroll Ross, Judge



                                  No. E2000-02619-CCA-R3-CD
                                          July 20, 2001

The defendant, Anthony Reid, was convicted by a Bradley County jury of first degree felony murder
and especially aggravated robbery, Class A felonies, aggravated robbery, a Class B felony, attempted
aggravated robbery, a Class C felony, and evading arrest, a Class E felony. Thereafter, the trial court
sentenced Defendant to life imprisonment for his first degree murder conviction, twenty-five years
for his especially aggravated robbery conviction, ten years for his aggravated robbery conviction,
six years for his attempted aggravated robbery conviction, and two years for evading arrest. The trial
court further ordered Defendant’s sentence for life imprisonment to be served consecutively to his
other four sentences, which were ordered to be served concurrently with each other, for an effective
sentence of life plus twenty-five years. On appeal, Defendant contends that his convictions cannot
stand because the State failed to comply with the mandatory procedures concerning proper
presentation and filing of the indictment in his case as required by statute, and the trial court erred
by refusing Defendant’s request for a mistrial after the State improperly solicited testimony
concerning the fact that Defendant invoked his right to remain silent upon arrest. Defendant also
alleges that the trial court erred by imposing consecutive sentences. Following a review of the
record, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JERRY L. SMITH, J., joined.

William J. Brown, Cleveland, Tennessee, for the appellant, Anthony Reid.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Jerry Estes, District Attorney General; Carl Petty, Assistant District Attorney General; and Steven
Crump, Assistant District Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                              I. Facts

        On May 22, 1998, Lebron Hensley, a patrolman for the Cleveland Police Department,
received a report that a shooting had occurred at the apartment complex located at 580 Dooley Street
in the city of Cleveland. The first officer to arrive at the scene, Hensley observed two gunshot
victims on a balcony of one of the apartments. One victim was sitting in a chair and bleeding from
the head. The other was lying on the floor face down in a pool of blood. Hensley immediately
checked their condition. The victim in the chair was conscious but unresponsive--he was leaning
over with his face in his hands and appeared to have been shot somewhere in the head. The victim
on the ground exhibited no vital signs at all. Within a matter of minutes, the ambulance and
additional officers arrived at the scene. The victims on the balcony were later identified as Kenneth
Blair and Charles Massengill. Blair was the victim on the ground, and Massengill was seated in the
chair. Hensley did not see any other victims at that time.

         Barry Snyder, a paramedic working for Bradley County EMS, was a member of the
emergency medical team called to the crime scene. When Snyder arrived, he found Massengill
sitting in a chair with his head in his hands and what appeared to be a gunshot wound to his right
eye. Another gunshot victim, Blair, was lying on the floor. Blair had been shot in the head and was
in worse shape than Massengill. The medical team placed Massengill and Blair on backboards and
then into the ambulance. By that time, Blair was in cardiac arrest. They performed CPR, but Blair
died after arriving at Erlanger Hospital. Later that same day, the EMS team was called back to 580
Dooley Street to transport a third victim of the incident, Marcus Williams, to Bradley Memorial
Hospital. Williams had complained earlier of a pain in his lower back and, upon closer inspection,
it turned out that he had a bullet lodged in it.

        Sergeant Randy Gates, an officer with the Cleveland Police Department, testified that he was
the second or third officer to arrive at the scene. When he reached the upstairs balcony area, he
observed Blair lying on the floor in “bad shape” and the other victim, Massengill, slumped over the
railing with an eye wound. Because the balcony was congested with medical personnel, Gates
decided to assist with securing the area downstairs. On his way he encountered two more victims:
Eric Benion and Marcus Williams. Benion had been shot in the hand and Williams had gunshot
wounds in his leg and back.

        Once the victims were removed for medical treatment, Gates and the other police officers
began interviewing witnesses and searching the area for evidence. The police located a set of keys
belonging to one of the victims, several spent rounds of ammunition (later identified as .22 caliber
shell casings), a baseball cap, and a bottle of some kind of alcoholic beverage in the gravel parking
lot below the stairs. County officials reported spotting persons and a car matching the witnesses’
description of the suspects and their vehicle: three black males in a small, white four-door car, with
a “drive-out tag” in the rear window.


                                                 -2-
         Jimmy Woody, a patrolman for the Bradley County Sheriff’s Office, testified that he was one
of the police officers involved in the pursuit of the shooting suspects. The chase began shortly after
Officer Paul Leroy initially spotted the suspects’ vehicle near the Waffle House on Georgetown
Road. Leroy reported observing the vehicle drive onto Interstate 75, near exit 25, and he followed
it for several miles while waiting for assistance. When the suspects reached exit 33, Woody was
within a mile of Leroy and both officers activated their blue lights and sirens. The suspects
responded by accelerating. They drove recklessly, at speeds of 70 to 80 miles per hour, constantly
switching lanes and also traveling in the emergency lane. The chase continued for approximately
two miles. Then the driver of the vehicle suddenly pulled over and stopped the car in the median
on the left side of the interstate, between the Charleston exit and the river on the northbound side.
The passenger in the front seat remained in the vehicle, but the driver and backseat passenger leaped
out of the car and ran west toward the southbound lane. Sergeant Collins and Clancy Bryson, also
involved in the pursuit, chased the fleeing suspects on foot. One was captured in the woods, and the
other was apprehended sometime later near the truck stop at exit 33. Woody identified Defendant
as the driver of the vehicle, but did not testify as to whether Defendant was the suspect captured in
the woods or the one apprehended later, near the truckstop.

        Sergeant John Collins, a patrolman for the Bradley County Sheriff’s Office, testified that he
also participated in the pursuit of Defendant. As the officers were closing in on the vehicle, Collins
made eye contact with the driver, who grinned at him as he pulled alongside the suspects. Collins
identified Defendant as the smiling driver and corroborated the testimony given by Officer Woody
regarding the pursuit. Collins also confirmed that both he and Officer Bryson chased the two
suspects who fled on foot. Apprehending the first suspect rather quickly, the officers then searched
the woods with police dogs for the second but were initially unsuccessful. Upon returning to their
units, a dispatcher informed them that someone from the truck stop at exit 33 reported a person
matching the description of the missing suspect standing on the interstate trying to flag a ride.
Detective Quinn drove to the exit and picked him up. During his testimony, Collins was not asked
whether Defendant was the first suspect, apprehended in the woods, or the one discovered later at
the truckstop.

        Steve Bennett, a detective with the Cleveland Police Department, testified that he assisted
with the search of the crime scene and the defendants’ car after they were apprehended. At the
scene of the shooting, the police found five .22 shell casings. Inside the car, the police discovered
two boxes of .22 rimfire ammunition, a black stocking-type mask, a cap, and articles of clothing.
Two days later, on Interstate 75, northbound, the police also discovered the three guns involved in
the crime: a .22 caliber revolver pistol, a Phoenix .22 caliber semi-automatic pistol, and a Haskell
.45 caliber semi-automatic pistol. Two of the weapons were wrapped in a black shirt, and the third
was laying close by. The particular type of .22 revolver discovered on the interstate can hold six
rounds in its chamber, and it contained five rounds when the police found it. The Phoenix .22 semi-
automatic is capable of holding eight rounds, fully loaded, and it had five rounds remaining in the
clip. (Bennett was not questioned about the status of the .45 weapon upon discovery.) The
Tennessee Bureau of Investigation crime lab matched the five casings recovered from the crime
scene to the Phoenix .22 semi-automatic handgun.

                                                 -3-
        Detective Bennett testified that he first encountered Defendant and the codefendants, O’Neil
Sanford (Defendant’s half-brother) and Orlando Malone, at the Bradley County Sheriff’s Department
an hour or two after the shooting occurred. Upon searching the suspects, the police discovered
approximately $40.00 in cash on Sanford and 79 cents or so in change on Malone. Defendant had
no cash on his person. When Bennett was asked by the prosecutor whether he attempted to get a
statement from Defendant and whether he cooperated, Bennett replied “Yes” and “No,” respectively.
Defense counsel objected. A bench conference was then held out of the presence of the jury. When
the jury returned, the trial judge instructed them, inter alia, to ignore Bennett’s response to the
prosecutor’s question concerning whether or not Defendant gave the police a statement.

        During cross-examination, Bennett was asked whether he performed a gunshot residue test
on Defendant and he responded affirmatively. He testified that propellant powder residue is
normally present on the hands of a person who fires a weapon and that the residue test performed
on Defendant gave inconclusive results. On redirect-examination, Bennett revealed that all three
defendants were tested for powder residue and that the test results were all similarly “inconclusive.”
By way of explanation, Bennett read to the court the following excerpt from the TBI report
concerning their test results: “some .22 rimfire ammunition does not have all the elements needed
for gunshot residue analysis. These results cannot eliminate the possibility that the individual could
have fired or handled a gun.” Bennett testified that .22 ammunition does not contain the primer
which is necessary for conclusive results in this type of test.

         Eric Benion, one of the victims, testified that he was with Kenneth Blair, Marcus Williams,
and Charles Massengill, at 580 Dooley Street on May 22, 1998, when the shooting incident occurred.
Benion and Williams had started the evening at Benion’s house. When Benion’s girlfriend became
argumentative, Williams and Benion left to go to Williams’ apartment. As they were leaving,
Massengill also showed up and they invited him along. Blair arrived at Williams’ apartment later
on. The men spent the majority of the evening sitting on the balcony talking and joking and drinking
a few beers. They noticed three black women with three black men in the parking lot downstairs.
One of the men (the codefendant, Malone) approached them, asking whether anyone had change for
a fifty-dollar bill. They replied that they did not. Malone then asked whether they had an extra beer,
but they did not have a spare beer either. Thereafter, Malone rejoined his friends, Sanford and
Defendant, in the parking lot. It appeared to Benion as though they were leaving, but soon afterward
they returned and ran up the stairs to where Benion and his friends were sitting on the balcony.
Benion identified Defendant as one of the persons who ran up the stairs.

        All three men--Defendant, Sanford, and Malone--had guns, and they ordered Benion and the
others onto the floor. Benion did not obey right away, but ran back into the apartment. Malone
found him and ordered him back outside with the others. Massengill was in a chair; the others were
laying on the ground. With his gun pointed at Benion and Williams, Malone proceeded to look
through their pockets for money. He took $28.00 from Benion. No one resisted or argued with the
armed men during the robbery, but then Benion heard Blair mumble something unintelligible. In
response, Benion heard one of the gunmen respond, “What? What?” and the shooting started. At
this point, Benion jumped up, ran back into the apartment and leaped through the second story

                                                 -4-
window. When he landed, he ran to another apartment building and asked a friend to call the police.
He had been shot in the hand during his escape. Benion gave the police a description of the
shooters’ car and a statement, and then identified Defendant from a lineup at the police department
later that evening.

        Marcus Williams testified that he resided in the apartment which became the scene of the
shooting incident. Prior to the shooting, Williams and Benion were pitching horseshoes at Benion’s
house. When Benion and his girlfriend began to argue, they decided to go to Williams’ apartment.
Massengill arrived as they were leaving, so they invited him to come along. About an hour later,
Blair joined them and they all had a few beers together. By this time, Sanford, Malone and
Defendant were observed talking to some girls in the parking lot. Williams recognized the girls from
the neighborhood, but had never seen the men before. Two of the girls came upstairs to where
Williams and his friends were sitting on the balcony and asked whether anyone had a quarter. The
three men followed them. Malone asked for a beer and whether anyone had change for a fifty-dollar
bill. Williams told him that they had neither.

        Williams testified that, after he refused Malone’s requests, everything happened very quickly.
The three men ordered Williams and his friends down onto the floor. All three carried guns.
Williams saw what appeared to be two .22 caliber weapons and a .45 caliber handgun. Benion
jumped up and ran into the house, but they made him come back outside. Then Defendant and
Sanford searched the victims’ pockets for money. Having taken their money, the gunmen were
preparing to leave when Blair mumbled something that Williams could not understand. In response,
one of them turned around and said “What?” Then the shooting started. Williams and Benion
immediately jumped up and ran into the apartment. Benion leaped out the window and notified the
police. Williams locked the door behind him, and stayed in the apartment until the ambulance
arrived. He heard three more gunshots before the men left. When he emerged, he observed
Massengill leaning over the rail and bleeding. Blair appeared dead. Benion had been shot in the
hand as he escaped. Massengill had gunshot wounds in the knee and lower back

       Williams further testified that none of the victims resisted the gunmen, and he identified
Defendant as one of the three men who took part in the robbery. On cross-examination, Williams
admitted that his blood alcohol level was 0.13 when the hospital tested him and that he drank three
beers during the evening of the incident.

        Charles Massengill, also a victim of the shooting, testified that he went to Williams’
apartment after work at approximately 11:00 p.m. He was drinking beer with Benion, Williams, and
Blair. They were not bothering anyone. The first person to approach them was Malone who wanted
change for a fifty-dollar bill. When they told him that they did not have change, Malone went back
downstairs but came back fifteen or twenty minutes later with Sanford and Defendant. Massengill
observed that Defendant and Sanford had guns. Sanford made Massengill sit in a chair and pointed
a gun at his right eye. Malone ordered Benion, Williams, and Blair outside onto the balcony and
made them lie down face first. Defendant pointed his gun at Blair while the three men searched the
victims’ pockets for money. They took 79 cents from Massengill, and then Blair mumbled

                                                 -5-
something. Defendant responded with the words, “You say what?” and then shot Blair.
Immediately afterward, Sanford shot Massengill in the right eye and he lost consciousness. He
awoke later, in the hospital, with an eye injury and fractured neck. His blood alcohol was reported
as 0.10.

        The transcript of the stipulated testimony of Dr. Charles Harlan, a licensed pathologist who
performed the autopsy on Kenneth Blair, was read into evidence by the attorneys during trial. Dr.
Harlan’s testimony revealed the cause of Blair’s death was a gunshot wound to the right side of the
head. Dr. Harlan was able to recover a small bullet from Blair’s brain which was consistent with the
size of bullet typically fired from a .22 caliber weapon. Dr. Harlan also performed a blood and urine
analysis on the deceased which showed positive results for ethyl alcohol, “THC” or
tetrahydrocannabinol (the active ingredient in marijuana), and benzoylecgonine (a metabolic by-
product of cocaine). Specifically, the results indicated that the victim consumed the equivalent of
one beer and a small quantity of cocaine prior to his death. By contrast, the quantity of THC in the
victim’s blood was fairly large.

        Anthony Reid, the defendant, testified that he lived in Chattanooga, Tennessee, and admitted
that he had previously been convicted for possession of cocaine with intent to sell. On the day of
the shooting, Defendant had been out of jail for approximately five months. He and his half-brother,
O’Neal Sanford, and a man named Orlando Malone had decided to come to Cleveland to visit a
friend and sell drugs, specifically, crack cocaine. Defendant had approximately $250.00 worth of
crack cocaine in his possession when they arrived in town. Shortly thereafter, they met some local
girls who “wanted to drink or kick it” with them. Defendant testified that he and Malone were
mainly interested in “getting drunk” and “having sex” at that point. The women asked Defendant
and his companions to follow them to a grocery store near the apartment building at 580 Dooley
Street, where the men proceeded to spend two and one-half hours talking with the women in the
parking lot and selling drugs to passersby. Defendant noticed the crowd of people standing on the
balcony of Williams’ apartment, but they did not engage in any conversation.

       After Defendant and his companions returned from renting a motel room at the request of
the women, Malone went up the stairs near Williams’ balcony “to get the females” who were waiting
in an apartment nearby. On his return, he stopped to talk to Williams and his friends about
something. Defendant testified that he did not know what the conversation was about and that no
one appeared angry afterward. Defendant admitted that, at this point, he and his friends were
intoxicated. Malone wanted the women to come to their motel room, but they told him they needed
to make a phone call first. While the men waited for the women to return, Malone went back to ask
the people at the Williams’ apartment for a beer. When he came downstairs empty-handed, Sanford
went back up the stairs with him. It started raining, so Defendant went upstairs also. When he
reached the top stair, he heard arguing. Then “someone got pushed and a gunshot went off,” so
Defendant ran back downstairs to the car to “get out of the way.”

       Defendant testified that he had some difficulty getting the car to start. By the time he did,
Sanford and Malone had jumped in the car with him and they all drove away. Defendant was

                                                -6-
frightened because he was on probation and was supposed to stay out of trouble. When the police
spotted them and tried to pull them over, Defendant “mashed” the accelerator in an attempt to
escape. Sanford ducked down, and Malone wrapped the guns inside of his shirt. Malone instructed
Defendant to pull over to the side of the highway so he could throw the guns out of the car, and
Defendant complied. When Defendant finally stopped the car, he tried to get away on foot, but the
police caught him and arrested him.

       Defendant further testified that, to the best of his knowledge, Malone and Sanford did not
rob anyone of anything on May 22, 1998, and, furthermore, Defendant did not know that Malone
and Sanford had guns with them that day. Defendant also testified that he did not have a gun, he did
not shoot anyone, and he did not rob anybody that evening. Defendant claimed his only interests
centered on drugs and females.

        On cross-examination, Defendant explained that, even though he had not done anything
wrong, he ran from the police because he feared for his life. The Chattanooga police had recently
killed one of his friends, and Defendant believed that the police might kill him too. With regard to
the victims’ testimony that Defendant carried a gun, he claimed that all three witnesses were either
lying or must have confused him with someone else. Defendant claimed that he was far too busy
running away to recall anything about the shooting incident, except for hearing gunshots.

                                            II. Analysis

       A. Indictment

        Defendant contends that the State failed to comply with mandatory statutory procedures
concerning proper presentation and filing of the indictment in his case and, therefore, his convictions
cannot stand because the charging instrument had no legal effect. Specifically, Defendant claims
that the record fails to show that the indictment was presented by the foreman to the court in the
grand jury’s presence in accordance with Tenn. Code Ann. § 40-13-108 and, further, that the
indictment was not properly filed or entered by the clerk before the trial commenced as required by
Tenn. Code Ann. § 40-13-109.

        Tennessee Code Annotated section 40-13-108 provides the following: “An indictment, when
found by the grand jury and endorsed as prescribed by this part, shall be presented by the foreman,
in the grand jury's presence, to the court, and filed by the clerk.” Tenn. Code Ann. § 40-13-108
(1997).

       Tennessee Code Annotated section 40-13-109 further provides that

               All indictments for public offenses of the grade of felony, returned
               into court by the grand jury with the endorsement a “true bill,” shall
               be entered by the clerk with the return in full on the minutes of the


                                                 -7-
               court, and the originals compared with the entry by the judge before
               the judge signs the proceedings of the day.

Tenn. Code Ann. § 40-13-109 (1997).

       After a review of the record, we find Defendant’s first allegation concerning the foreman’s
alleged failure to present Defendant’s indictment to the court to be unfounded. On the third page
of Exhibit 2, contained in Volume IV of the official “Transcript of the Evidence,” a document dated
August 18, 1999, and filed August 30, 1999, states the following:

               We, the Foreman and members of the said Grand Jury, have
               hereunder subscribed our names, thereby certifying our actions
               relative to the above, and we direct the foreman of the Grand Jury to
               present the above indictments, presentments and “No Bills,” to the
               Judge of this Court in open Court.

The document was signed by the members of the Grand Jury, the foreman, and the Judge--all of the
parties required to participate under Tenn. Code Ann. § 40-13-108. Moreover, the “Grand Jury
Schedule and Report” of the same date includes Defendant’s five count indictment in its listing,
which indicates to this Court that it clearly was among those “directed for presentment” in the
document above. According to the statute, nothing more is necessary. Even if the record reveals
that the clerk omitted to enter upon the court’s minutes that the grand jury returned Defendant’s
indictment into open court, this omission does not constitute reversible error if the indictment shows
upon its back that it was found a “true bill,” which it does. See Tenn. Code Ann. § 40-19-101
(1997); see also Glasgow v. State, 68 Tenn. 485 (Tenn. 1876) (failure to spread felony indictment
upon the minutes of the court neither enlarges nor dismisses the accused’s rights since the object of
such procedure is simply to provide against consequences of loss or destruction of original); Brown
v. State, 26 Tenn. 155 (Tenn. 1846) (failure to spread indictment upon minutes of the court and to
include signature of grand jury foreman are immaterial when original indictment exists).

        Defendant also alleges that the indictment was not properly filed or entered by the clerk
before the trial commenced as required by Tenn. Code Ann. § 40-13-109. The record reveals that
the official minute book of the court did contain a copy of Defendant’s indictment. This fact was
proven by the testimony of Tisha Huff, the deputy clerk for the Criminal Court for Bradley County,
and conceded by defense counsel during his pre-trial argument on this issue. Specifically, defense
counsel admitted to the court that “there was [a copy of the indictment] in the file, but it was not
stamp-filed entered.” Defendant’s reliance on a stamp is misplaced, however. There is no such
requirement. As stated above, the indictment in this case was “directed for presentment” in a
document signed by the grand jury, the foreman, and the judge, after which a copy was placed in the
official minute book of the court. This procedure was sufficient to comply with the statutory
requirements for proper processing of an indictment on all points of legal significance. Defendant
is not entitled to relief on this issue.


                                                 -8-
       B. Denial of Defendant’s Right to Remain Silent

        Defendant contends that the trial court erred by refusing Defendant’s request for a mistrial
after the State violated his constitutional rights by improperly soliciting testimony that Defendant
failed to cooperate when a police officer requested a statement from him after his arrest. Defendant
further asserts that the impropriety of the prosecutor’s action constituted a level of prosecutorial
misconduct that may only be cured by a reversal of his conviction.

        In response, the State concedes that a defendant has a constitutional right to remain silent
after his or her arrest and that, under most circumstances, the prosecutor may not comment at trial
concerning the defendant’s invocation of that right. The State also admits that the prosecutor’s
question was improper. However, the State contends that the matter, taken in its entirety, amounts
to mere harmless error and, therefore, a mistrial is not necessary. In support, the State argues that
the context within which the comment was made was such that a jury would not necessarily draw
an inference of guilt from it. In addition, the State asserts that the prosecutor did not compound his
error by referring to Defendant’s silence a second time in its closing argument. However, the
transcripts of the parties’ closing arguments are not included in the record on appeal. Lastly, the
State suggests that the curative instruction given by the trial court operated to remove the taint left
by its improper remarks.

      During the direct examination of Detective Steve Bennett regarding his first encounter with
Defendant after his arrest, the following colloquy occurred:

               Prosecutor:     Detective Bennett, did you attempt to get a statement
                               at the time from Mr. Reid?
               Bennett:        Yes.
               Prosecutor:     Did he cooperate with you?
               Bennett:        No, sir.
               Prosecutor:     Excuse me?
               Bennett:        No.

At this point, Defendant’s counsel objected and requested permission to approach the bench. The
jury was excused, and a bench conference was held during which Defendant requested that the judge
declare a mistrial on the ground that the prosecutor improperly solicited commentary concerning
Defendant’s decision to exercise his constitutional right to remain silent. Following a discussion and
arguments by counsel for both sides, the trial judge denied Defendant’s motion for a mistrial, but
sustained his objection to any further questions of a similar nature by the prosecutor. The trial judge
also gave the following curative instruction to the jury when it returned:

               Ladies and gentlemen, before you stepped out, there had been a
               question asked pertaining to whether or not this particular defendant
               gave any statements at the time of the arrest to the officer. There was
               an objection raised. I have sustained the objection by defense counsel

                                                 -9-
               as to that entire line of questioning, and I would advise you, ladies
               and gentlemen, everyone in our nation has an absolute right not to
               ever have to give any statement to any officer. It’s called the Fifth
               Amendment of the United States Constitution. We have an equal
               amendment in our own state constitution. No one is ever compelled
               to have to give a statement to any officer. I have sustained the
               objection and I would urge you to strike any reference to that as far
               as the answer the officer gave to that particular question. And I
               would sustain any objection on any continued questioning along that
               line.

        The decision of whether 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 (Tenn.
1990). “Generally, 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 . . . 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 whether a “manifest necessity exists, “‘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). For reasons which follow, we agree
with the trial court’s decision to deny Defendant’s request for a mistrial.

        A defendant’s “constitutional right to remain silent in the face of accusations against him,
not only during his trial but also upon arrest and while in custody, is a rule so fundamental as to
require little elaboration.” State v. Braden, 534 S.W.2d 657, 660 (Tenn. 1976) (citing U.S. Const.
amend. V; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Under this
principle, “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the
fact that [the individual] stood mute or claimed his privilege in the face of accusation.” Miranda,
384 U.S. at 468 n. 37; see also Braden, 534 S.W.2d at 660; State v. Mabe, 655 S.W.2d 203, 205
(Tenn. Crim. App. 1983); Honeycutt v. State, 544 S.W.2d 912, 917 (Tenn. Crim. App. 1976).

         In Momon v. State, 18 S.W.3d 152, 163-65 (Tenn. 1999), our supreme court recognized that
the harmless error doctrine applies to constitutional violations, including situations in which the
prosecutor improperly commented upon a defendant’s privilege against self-incrimination. See also
State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App. 1996); Honeycutt, 544 S.W.2d at 917;
(Tenn. Crim. App. 1976). A constitutional error will result in reversal “unless the reviewing court
is convinced ‘beyond a reasonable doubt’ that the error did not affect the trial outcome.” State v.
Harris, 989 S.W.2d 307, 315 (Tenn. 1999) (citations omitted). Although we agree with Defendant
and the State as conceded on appeal that the prosecutor’s questioning was improper, applying the
above analysis to the instant case we find the question to be harmless error.


                                                -10-
        First, we observe that the entire exchange at issue comprised only a small portion of the
prosecutor’s cross-examination of the detective and the evidence as a whole. During the trial, the
State made out a strong case against Defendant, presenting substantial proof from which the jury
could determine that Defendant was guilty of the offenses charged beyond a reasonable doubt.
Defendant claimed that he was not directly involved in the robbery or the shooting, yet three
eyewitnesses testified that he was present, with a gun, and that he actively participated in the
robbery. One of the eyewitnesses actually observed Defendant shoot the victim who subsequently
died. Defendant claimed that these eyewitnesses either committed perjury or mistakenly confused
him with someone else, yet presented no reason for their collective bias or proof that anyone other
than Sanford, Malone and Defendant were present. Evidence concerning the absence of any
statement by Defendant at the time of his arrest must be weighed against the other, properly admitted
evidence in order to determine its prejudicial effect on the minds of the jury. Viewing the record as
a whole, we cannot find that the State’s improper reference to Defendant’s pretrial silence, made
in one brief exchange during a two-day trial, had a prejudicial effect upon the jury’s verdict, given
the overwhelming evidence tending to establish Defendant’s guilt. In addition, the trial court gave
curative instructions, which we may presume were followed by the jury. State v. Locke, 771 S.W.2d
132, 139 (Tenn. Crim. App. 1988) (citing State v. Compton, 642 S.W.2d 745 (Tenn. Crim. App.
1982)). In sum, we conclude that the comments in issue constituted harmless error beyond a
reasonable doubt. It follows that the trial judge did not abuse his discretion in refusing to grant a
mistrial. Defendant is not entitled to relief on this issue.

       C. Consecutive Sentencing

        Defendant also contends that the trial court erred when it imposed consecutive sentences
because neither the trial court nor the State gave advance notice of its intent to seek same. Defendant
argues that the failure to give such notice deprived him of his right to due process as guaranteed by
both the United States Constitution and the constitution of Tennessee. We disagree.

        In this case, the trial court’s ability to impose consecutive sentences on Defendant is
governed by Tenn. Code Ann. § 40-35-115. This statute places full responsibility for determining
whether consecutive sentences are proper upon the trial judge. Specifically, it directs that where “a
defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run
consecutively or concurrently as provided by the criteria in this section.” Tenn. Code Ann. § 40-35-
115(a) (1997) (emphasis added). The statute continues by stating that “[t]he court may order
sentences to run consecutively if the court finds by a preponderance of the evidence” that any of the
seven criteria enumerated in the statute apply. Id. § 40-35-115(b) (emphasis added). The imposition
of consecutive sentences is not dependent upon any required notice from the prosecution. Neither
does the statute require that a judge review information relevant to a defendant’s sentence prior to
the sentencing hearing in order to give a defendant “notice” of any kind.

        In his brief, Defendant asserts that the United States Supreme Court “has repeatedly
emphasized the importance of giving the parties [in a proceeding] sufficient notice to enable them
to identify the issues on which a decision may turn” and cites Lankford v. Idaho, 500 U.S. 110, 126

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(1991), in support of this statement. Defendant further contends that “without such notice, the court
is denied the benefit of the adversary process.” However, in Lankford, the petitioner’s argument
centered on the fact that the nature of the sentencing proceeding did not provide the petitioner with
any indication that the trial judge contemplated death as a possible sentence. Id. at 119.
Importantly, the Court observed that a hearing to decide sentencing matters, e.g., whether sentences
should run concurrently or consecutively, would have proceeded in exactly the same way as the
hearing in issue did. Id. Consequently, while counsel for both sides were arguing the merits of other
aspects of sentencing, the judge was the only person in the courtroom who knew that the real issue
that they should have been debating was the choice between life and death. Id. at 120. Since the
counsel for petitioner did not have adequate notice of the critical issue that the judge was actually
debating, i.e., that his sentencing hearing could result in the death penalty, the Court in Lankford
determined that the petitioner’s due process rights were violated. Id. at 127. The Court made no
statement, nor did it infer, that a petitioner would be entitled to notice of sentencing procedures
which are well-established, routine, and published by statute. We also observe that the facts in the
instant case did not create the secret, one-sided type of proceeding which the Lankford Court found
violative of the petitioner’s constitutional due process rights. By contrast, Tennessee Code
Annotated section 40-35-115 specifically enumerates what criteria the judge will examine when
making a determination regarding consecutive sentences and, in doing so, also provides sufficient
information so that a defendant may adequately prepare to argue against such sentencing if he so
chooses.

         Defendant also contends that his right to notice regarding the possibility of consecutive
sentencing is specifically articulated in Article I, section 9, of the Tennessee Constitution and quotes
the following passage from that section: “[I]n all criminal prosecutions, the accused hath the right
to be heard by himself and his counsel; to demand the nature and cause of the accusation against
him . . . .” Tenn. Const. art. I, § 9 (alteration in original). This constitutional provision does not
support the interpretation proposed by defendant, however. It simply provides that the accused has
the right to be informed, with some degree of certainty, of the crime of which he stands accused.
Bosley v. State, 401 S.W.2d 770, 771 (Tenn. 1966). This was accomplished by Defendant’s
indictment, which we have examined and found satisfies the constitutional guarantees of notice to
the accused according to the requirements outlined by our supreme court in State v. Hill, 954 S.W.2d
725, 727 (Tenn. 1997). After due consideration, we hold that imposition of consecutive sentences
according to the criteria established in our existing statutes and rules, including Tenn. Code Ann.
§ 40-35-115, without specific additional notice, does not violate a defendant’s due process rights.

         Furthermore, we find ample support in the record to sustain the trial court’s sentencing
determination under the criteria provided in Tenn. Code Ann. § 40-35-115. The transcript of the
sentencing hearing reveals that the trial court found that the following were applicable in
Defendant’s case “by a preponderance of the evidence”: (2) “[t]he defendant is an offender whose
record of criminal activity is extensive,” (4) “[t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation about committing a crime in which the
risk to human life is high,” and (6) “[t]he defendant is sentenced for an offense committed while on


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probation.” Tenn. Code Ann. § 40-35-115 (2), (4), (6) (1997). We concur with these findings.
Defendant is not entitled to relief on this issue.

                                      III. Conclusion

       Accordingly, the judgment of the trial court is AFFIRMED.



                                                   ____________________________________
                                                   THOMAS T. WOODALL, JUDGE




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