        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  April 17, 2013 Session

            STATE OF TENNESSEE v. LAMAR PARISH CARTER

         Interlocutory Appeal from the Criminal Court for Davidson County
                       No. 2009-C-2767   Seth Norman, Judge




                No. M2012-01734-CCA-R9-CD - Filed August 29, 2013


T HOMAS T. W OODALL, J., concurring.

        In this case, Defendant filed a motion to dismiss the indictment pursuant to the
constitutional protections afforded him to be protected from double jeopardy. Defendant
asserts in this interlocutory appeal that the trial court erred by denying the motion. I concur
in the results reached by the majority, but write separately to express my opinion that the only
justifiable reason for the trial court to deny the motion was the Defendant’s failure to
explicitly object to the declaration of a mistrial.

       In his brief, Defendant asserts that his counsel was not allowed to voice an objection
to the declaration of a mistrial. I am unable to agree with this statement from reading the
transcript. It is correct that Defendant was prohibited from “making a record,” an apparent
reference to making an offer of proof. Also, it was error by the trial court to adamantly and
abruptly refuse to allow counsel to “make a record” upon the trial court’s decision to sua
sponte order a mistrial. See Alley v. State, 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994).
In Alley, this court stated,

        The general rule is that “assuming an offer of proof has been seasonably
        made, it is error for the trial court to refuse to permit counsel to state what
        evidence he is offering.” 89 A.L.R. “Offer of Proof–Ruling–Error” § 2 at
        283 (1963). The purpose of an offer is two-fold. First, the proof informs
        the trial court what the party intends to prove so that the court may rule
        intelligently. Id. § 1 at 281. Second, an offer creates a record so that an
        appellate court can determine whether there was reversible error in
        excluding the evidence. Id.

        In circumstances in which it is obvious from the record that the proffered
        evidence could, under no circumstances, be relevant to the issues, a trial
        court’s refusal to grant an offer of proof is not error. However, if the
         obvious incompetence or irrelevance is not readily apparent from the
         record, it is error to exclude any reasonable offer which demonstrates the
         relevance and general import of the excluded evidence.

Alley, 882 S.W.2d at 815-16.

       This court has previously noted that “[Tennessee Code Annotated] section 40-35-
201(b) does not by its terms prohibit a comment on the actual sentence received by one other
than the criminal defendant himself.” State v. Kenneth Kisamore, No. M2010-01565-CCA-
R3-CD, 2011 WL 2474061, at *4 (Tenn. Crim. App., June 21, 2011), perm. app. denied
(Tenn. Oct. 19, 2011). Also, as noted in Kenneth Kisamore, this court “has also determined
that a statement by a prosecutor concerning the possible penalty that a defendant might
receive can be harmless error.” Id. (citing State v. Letonio Swader, No. M2005-00185-CCA-
R3-CD, 2006 WL 287384, at *6 (Tenn. Crim, App. Feb. 6, 2006), perm. app. denied (Tenn.
June 26, 2006).

        Thus, under Kenneth Kisamore, the obvious incompetence or irrelevance of the
Defendant’s counsel’s question is not readily apparent from the record. Pursuant to this
court’s holding in Letonio Swader, there quite probably was not a “manifest necessity” to
declare a mistrial in this case when under similar circumstances it was only harmless error
when the comment was made by the State prosecutor. However, a court does not have to
determine if a “manifest necessity” requires the extreme measure of halting a jury trial by
declaring a mistrial, if the defendant does not object to the order declaring a mistrial. In State
v. Skelton, 77 S.W.3d 791 (Tenn. Crim. App. 2001), this court held,

        Lastly, we note that a Defendant should be mindful of his duty to object
        whenever the trial court declares a mistrial or the state indicates an intention
        to retry him without his consent. An objection in the record may be crucial
        because a retrial is not barred by double jeopardy where a Defendant
        consents to the termination of the trial, notwithstanding the lack of a
        manifest necessity for doing so. [State v.] Mounce, 859 S.W.2d [319,] 322
        [(Tenn. 1993) (citation omitted)]. In Tennessee, a Defendant who stands
        silent at a time when he could have objected to the action taken by the trial
        court may often be considered to have acquiesced in that particular course
        of action. Id. at 322-23. This rule prohibits a party from standing silent
        while the trial court commits an error in procedure, and then rely on that
        error to his or her own advantage at a later time.

        Skelton, 77 S.W.3d at 799.

       Although in Skelton this court determined that the defendant had no opportunity to
object prior to termination of the proceedings, I conclude Defendant in the case sub judice

                                                   -2-
was not deprived of the opportunity to object to the declaration of a mistrial. The window
of opportunity was not open long, but it was present. Accordingly, I concur in the results
reached by the majority.

                                                 ___________________________________
                                                 THOMAS T. WOODALL, JUDGE




                                               -3-
