         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            MAY SESSION, 1999
                                                         FILED
                                                            July 21, 1999
STATE OF TE NNE SSE E,              )    C.C.A. NO. 02C01-9707-CC-00265
                                                      Cecil Crowson, Jr.
                                    )
                                                     Appellate Court Clerk
           Appellee,                )
                                    )    FAYETTE COUNTY
V.                                  )
                                    )
                                    )    HON . JON K ERR Y BLA CKW OOD ,
COREY LEMONT PO WELL,               )    JUDGE
                                    )
           Appe llant.              )    (FIRST DEGREE MURDER)



FOR THE APPELLANT:                       FOR THE APPELLEE:

MICHAEL E. SCHOLL                        JOHN KNOX WALKUP
200 Jefferson Avenue, Suite 202          Attorney General & Reporter
Memphis, TN 38103
                                         R. STEPHEN JOBE
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenu e North
                                         Nashville, TN 37243

                                         ELIZABETH T. RICE
                                         District Attorn ey Ge neral

                                         CHRISTOPHER MARSHBURN
                                         Assistant District Attorney General
                                         302 M arket Stre et
                                         Somerville, TN 38068




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                     OPINION
              In this case, the Defendant, Corey Lemont Powell, appeals as of right

from the judgments of conviction for felony murder and especially aggravated

robbery. Indicted and tried for felony murder, premeditated first degree murder, and

espe cially aggravated robbery, the jury, on these counts, found him guilty of felony

murder, second degree murder, and especially aggra vated robbe ry. The trial court

merged the second degree murder conviction with the felony murder and Defendant

was given a life senten ce. The trial court sen tenced him to serve fifteen (15) years

for the co nviction of esp ecially aggrava ted robb ery, conc urrent to th e sente nce of life

imprison ment. Defendant presents nine (9) issues for appe llate review. This cou rt

initially affirme d the c onvictio ns.   Th e Def enda nt then timely file d a Pe tition to

Rehea r, which was granted. The original opinion and judgment were vacated. The

court ordered the trial court to make certain find ings o f fact reg arding Defe ndan t’s

issue challeng ing adm issibility of his co nfession . After further briefing following the

trial court’s supplemental findings of fact, the case was then reargued. After review

of the entire record, briefs and arguments of counsel, and applicable law, we find

that suppre ssion of Defendant’s confession is required, and we therefore reverse the

judgm ents of the trial court an d rema nd this ca se for a ne w trial.



              The issues presented by Defendant are as follows:


       1)     whether the trial court erred in de nying D efenda nt’s motio n to
              suppre ss his state ment;

       2)     whether the trial court erred in refusing Defendant access to the
              results of a polygraph test for use as evidence;




                                              -2-
      3)     whether the trial court erred by refusing to suppress evidence of
             the mu rder wea pon an d the ba llistics test;

      4)     whether the trial court erred in denying Defendant’s motion
             regarding the striking of specific jurors and motion for a change
             of venue;

      5)     whether the trial c ourt er red in denying Defendant’s motion for a
             mistrial du e to adm ission of ev idence of Defen dant’s arre st;

      6)     whether the trial court erred in refusing to admit testimony
             regarding Defe ndan t’s restricted access to the telephone during
             police questioning;

      7)     whether the trial court erred in overruling Defendant’s motion for
             a judg men t of acq uittal;

      8)     whether the trial court erred by refusing to charge lesser included
             offenses of premeditated first degree murder; and

      9)     whether the trial court erred by allowing prosecutorial misconduct
             during the trial.



                                       F ACTS



             Bess ie Russ ell, wife of Don Russell, testified that he was the owner and

operator of Russell’s Grocery located in Hickory Wyth e, a rural are a of Faye tte

County. The store had been open since April 1947. In May 1994, Don Russell was

seventy-four (74) years old. Ru ssell and his wife lived ne xt door to the store, and

each morning he rose at 5:00 a.m. to open the store. He went to the store to eat his

breakfast and read the paper, then returned to the house with the newspaper for her

to read. The store was open from 5:00 a.m. until 5:30 p.m.



             On May 27, 1994, Mrs. Russell awoke and discovered that her husband

had not yet returned with the newspaper. She walked to the store and found him




                                         -3-
lying on his back in a pool of blood. Mrs. Russell called 911, and the victim was

transported by helicopte r to a hospital in Memphis where he was pronounced dead.

She noticed that the cigar box was missing from the store and estimated the amount

of mon ey in the bo x to be be tween $ 800.00 and $1 200.00 .



              Dr. O’Brien Smith testified that he performed the autopsy of the victim.

Dr. Smith reported that the victim died as a result of a near gun shot wound to the

head, and he removed a .2 2 calib er bulle t fragm ent from the ba ck of th e victim ’s

brain. From his examination, Dr. Smith determined that the gun was between six

(6) to twelve (12) inches from the victim’s head at the time it was fired.



              Bill Kelley, Sheriff of Fayette County, testified that he led the

investigation of the victim’s murder. After arriving at Russell’s Grocery on May 27,

1994, at 6:30 a.m., Sheriff Kelley determined that a cigar box containing

appro ximate ly $1200.00 had been stolen from the store and that there were no

witnesses to the shooting of the victim. On June 24, 1994, Kelley interrogated a

potential suspect, Jerry Coleman, but after a brief investigation, Coleman was

eliminated as a suspect. The investigation, in Sheriff Kelley’s words, came to a

“dead end.” Two years later, in April 1996, Kelley discovered that the Defendant had

told some people within the community that he was respons ible for th e victim ’s

murder. Also, the Defendant’s nine-shot .2 2 calib er revo lver wa s seize d from him

by police during the Mid-South Fair. After the revolver was recovered from the

Mem phis Police D epartm ent prop erty room, both the revolver and bu llet fragme nts

from the victim’s bra in were s ent for ba llistics testing.




                                             -4-
             Kelley interviewed the Defendant for the first time on May 1, 1996,

advising   him that he was investigating the victim’s death and that they had

recovered the De fenda nt’s pistol. After reading Defendant his constitutional rights,

the Defendant signed a waiver of these rights and did not request an atto rney o r his

parents to be presen t during the interview. De fendant den ied any involvement in

either the robbery or murder of the victim, but did advise Kelley that Br yant P owell

and Erin Luckett were involved.        The Defendant was released following that

interview. After furthe r investigatio n, the De fendant was again picked up by the

police for ques tioning an d was inc arcerate d on Ma y 3, 1996 .         After advising

Defenda nt of his rights for a second time, Kelley again inte rviewed th e Defe ndant,

but not until May 6, 1996. Defendant again denied his involvement in the crime.



             On May 7, 1996, Sheriff Kelley was notified that the Defendant wanted

to speak with him. A fter Defen dant wa s advised of his con stitutional rights and

signed a waive r form , he ag ain denie d involv eme nt in the murd er and implica ted his

cousin, “Big John,” from Memp his. On May 8 , 1996, Age nt Scott W alley from th e

Tennessee Bureau o f Investigatio n cam e to interview the Defe ndant u pon Sh eriff

Kelley ’s request. Sheriff Kelley verified that the Defendant was never mistreated or

promised anything in exchange for his statement. Kelley also stated that he was

never informe d by eithe r the Defe ndant o r his paren ts that they wanted or had

retained an attorne y, althou gh Ke lley spo ke with Defe ndan t’s parents several times

throughout the investigation.



             Agent Walley testified that he advised Defendant of his constitutional

rights. During the first portion of the interview, Defendant denied involvement in the




                                           -5-
crime. Following a lunch break, Defendant returned to the interview and gave a

statement to Agent Walley in which he admitted robbing and shooting the victim.

Defendant stated that he entere d Rus sell’s Groc ery at a pprox imate ly 5:30 a.m. on

May 27, 1994, with his nine-shot .22 calibe r revolve r in his rig ht front p ocke t. He told

the victim to “give [him] the money and there w on’t be no [sic] pro blem .” The victim

pulled out the gold cigar box from underneath the counter, and then went to the beer

cooler to get a six-pack of Miller beer as Defendant requested. While turning around

with his elbows halfway up, the Defendant became frighte ned a nd pu lled ou t his

revolver which “acc identally fired.”



              W hile the Defendant’s statement was not tape recorded, Agent Walley

took notes and then wrote out a statement in narrative form which Defendant read

and signed after initialing all corrections. Sheriff Kelley returned to the room and

read the statem ent. Wh en De fendan t affirmed th at this was indeed his statem ent,

Kelley sign ed the sta temen t as a witne ss.



              Steve Scott, an agent of the Tennessee Bureau of Investigation,

administered the ballistics testing on the pistol and the bullet fra gme nt. W hile Scott

was unable to determine that the bullet fragm ents were fir ed from the De fenda nt’s

pistol due to damage, Scott testified that all four class characteristics of the bullet

and the pistol were a match. These four class characteristics included the caliber

of the gun and bullet, the direction of the barrel twist, the number of lands and

grooves, and the width of the lands and grooves. While the Defendant’s weapon

could not be iso lated as th e murder weapon, it could “certainly” have been the

weapon used. Agent Scott also noted that the pistol required trigger pre ssure




                                             -6-
“between normal a nd heavy” to fire the weapon, dependent upon whether the

weapon was cocked or uncocked when it was fired.



             The S tate then re sted its cas e-in-chief.



             Tim Adams, a friend of the Defendant’s, testified that after the victim ’s

murder, the Defendant left town for one or two weeks.          When the Defendant

returned, he had both new tires and a new vinyl top on his car. Jokingly, Adams

inquired whether the Defendant had “bumped old Donn off,” but the De fenda nt only

laughed in response.



             Jesse Jame s Jone s testified that he was incarcerated in a cell facing

that of Defendant’s. Jones made several telephone calls for the Defendant because

the telephone in Defendant’s cell was not working.



             Rodney Johnson testified that the Defendant never told him that he

robbed or murdered the victim. Johnson did verify that Defendant owned a .22

pistol.



             Stevison Ve asey, the De fendant’s stepfa ther, testified that Defendant

visited his moth er aroun d May 2 7, 1994 . During that visit, Veasey bought new tires

for Defen dant’s ca r. During that same visit, Veasey stated that Defendant’s natural

father put a new vinyl roof on the Defe ndant’s car.




                                           -7-
                          M OTION T O S UPPRESS S TATEMENT



             Defendant argues that his statement given to the police on his fifth day

of incarceration should have been suppressed as a violation of his Fourth, Fifth and

Sixth Amendment rights under the Un ited Sta tes Co nstitutio n. W hen a n acc used is

afforded an evidentiary hearing on the merits of a motion to suppress, the findings

of fact made by the trial court are binding upon the appellate court unless the

evidence contained in the record p repond erates a gainst the se finding s. State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the witnesses,

the weight and value of the evidence, and resolution of conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact.” Id. Provided that the greater

weight of the evidence supports the trial court’s findings, then those findings shall be

upheld by the appellate court and the party prevailing in the trial court is en titled to

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

may be drawn fro m that e vidence . Id. In evaluating the correctness of the trial

court’s ruling on Defendant’s pretrial motion to suppress, this court may consider the

proof adduc ed both at the s uppre ssion hearin g and at trial. State v. Henning, 975

S.W .2d 290 (Te nn. 1998).



             At the hearing on the m otion to suppress, Sheriff Bill Kelley testified that

he had the Defen dant pick ed up fo r questioning for the first time on May 1, 1996.

After the Defendant denied any involvement in the crime and implicated others, he

was released and further investigation occurred. In its supple menta l findings of fa ct,

the trial court determined that Defendant was incarcerated on May 3, 1996. The

record reflects, however, that Defendant was not questioned again until May 6, 1996,




                                           -8-
when he again denied any involvement in the robbery or murder of the victim.

Regarding Defendant’s May 6 denials, Sheriff Kelley testified “I know that he

[Defen dant] was blow ing hot air a t me ag ain and I just took the notes and then I

locked him back up.” (Emphas is added).



             W e note the chro nology o f events that Defendant was apprehended on

May 1 and released after denying involvement in the crimes. Two days later he was

again taken into custod y, but this time he was inca rcerated for three (3 ) days before

being questioned on May 6, when he again denied his participation in criminal acts.

He was promptly “locked up” again. There had been no judicial determination of

proba ble cause that Defendant had committed the crimes. As set forth above,

Defendant confessed on May 8, 1996. No judicial determination of probable cause

to arre st Defe ndan t was m ade u ntil after the May 8 confes sion.



             First, we will address the Defendant’s contention that his confession

was obtained in violation of h is Sixth Am endm ent right to c ounse l.        The Sixth

Amendment right to c ouns el doe s not a ttach u ntil the adversarial judicial process has

begun. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d

631 (1986) (citations omitted); State v. Stephenson, 878 S.W.2d 530, 547 (Tenn.

1994). The lo ng-es tablished law in Tennessee for the initiation of the adversarial

judicial process is at the time of the filing of the formal charge, such as an arrest

warran t, indictme nt, presentment, or preliminary hearing in cases where a warrant

was not obtain ed prior to th e arrest. State v. Mitch ell, 593 S.W.2d 280, 286 (Tenn.

1980), cert. denied, 449 U.S. 845 (1980); State v. Butler, 795 S.W.2d 680, 685

(Tenn. Crim. App . 1990). It is clear from the re cord that Defendant had not been




                                           -9-
forma lly charged at the time he gave his statem ent. The refore D efenda nt’s right to

couns el had no t yet attache d, so no v iolation of the Sixth Am endm ent occu rred.



             Defendant urges this court to suppress his statement as involuntary

based upon denial of the right to counsel during police interrogation pursuant to the

Fifth Amendment. If a suspect requests that counsel be present during police-

initiated custodial interrogation, then police must cease questioning until counsel for

that susp ect is pres ent. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S . 477, 482 , 101 S.C t.

1880, 1883, 6 8 L.Ed.2 d 378 (1 981); State v. Stephenson, 878 S.W.2d at 547-48.

The Defendant waived his right to counsel verbally and/or in writing on each

occasion when he was in terrog ated b y the po lice. Th erefor e, his waiver is sufficient

for the police to have assumed he did not invoke his right to counsel under the Fifth

Ame ndme nt.



             The Defendant asserts that at the time he gave his statement to the

police he had been incarcerated for five (5) days and that this amount of time

violated the Fourth Amendm ent righ t to prom pt judic ial dete rmina tion of p robab le

cause after a wa rrantless a rrest. The State concedes that Defendant was detained

for a period of more than forty-eight (48) hours, and that therefore, there was a

violation of the Fo urth Am endm ent. See Coun ty of Riversid e v. McLaughlin, 500

U.S. 44, 56, 111 S.Ct. 16 61, 167 0, 114 L .Ed.2d 4 9, 63 (19 91); State v. Huddleston,

924 S.W.2d 666, 671-73 (Tenn. 1996). In Huddleston, our state suprem e court

determined that the “fruit of the poiso nous tre e” analys is is to be ap plied to

determine whether a statement obtained in violation of the Fourth Amendment must




                                           -10-
be suppre ssed. Huddleston, 924 S.W.2d at 674. The question is “whether [the

stateme nt] ‘was sufficiently an act of free w ill to purge the primary taint of the

unlawful invasion.’” Brow n v. Illinois , 422 U.S. 590, 598, 95 S.Ct. 2254, 2259, 45

L.Ed.2d 416 (1975 ) (quoting Wong Sun v. United States, 371 U.S . 471, 486 , 83 S.C t.

407, 416, 9 L.Ed.2d 441 (1963)). As stated by the court in Huddleston, “[u]nder the

‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was

obtained by exp loitation of the Fourth A mend ment illeg ality.” Huddleston, 924

S.W.2d at 674, (emp hasis adde d) (citing Wong Sun v. United States, 371 U.S. 471,

488, 83 S.Ct. 40 7, 417, 9 L .Ed.2d 4 41 (196 3)).



              In Huddleston, the supreme court noted that four (4) factors are to be

considered in determining whether the confession was sufficiently an act of free w ill

to purge the primary taint of the incarceration of a defendant without a judicial

determination of probable cause. These factors are:

       1)     the pres ence o r absen ce of Miranda warnings;

       2)     the tem poral pro ximity of the a rrest and the confe ssion;

       3)     the presence of intervening circumstances; and

       4)     the purp ose an d flagran cy of the officia l miscon duct.


Huddleston, 924 S.W.2d at 674-75. The court in Huddleston noted that the fourth

factor, the purpose and flagrancy of the official misconduct, was of particular

significanc e in this an alysis. Id. at 676.



              In its supplemental findings of fact, the trial court found that Defendant

was administered his Miranda warnings on May 1, May 6, May 7, and May 8. The




                                               -11-
record suppo rts this finding, and this weighs against suppression of the confession.

Defendant was taken into custody without a warrant having been issued, on May 3,

1996, and five (5) day s later, s till withou t an inte rvenin g judicial determination of

probable cause, gave a confession while incarcerated. The defendant in Huddleston

was held without a judicial determination o f proba ble ca use fo r 72 ho urs, wh ile

Defendant in this case was he ld 120 ho urs. Huddleston, 924 S.W.2d at 675. As

noted in Huddleston, once a detention becomes unlawful, the increased passage of

time make s the Fo urth Am endm ent violation worse. Id. at 675. As stated by the

supreme court, “[o]nce the detention becomes unlawful, the pressure to confess

likely increases with each mom ent of continuing illega l detention.”                Id.   In

Huddleston, the suprem e court held that where the de tention was fo r appro ximate ly

72 hours, the “temporal proximity factor” weighed in favor of suppression of the

statem ent.    Likewise, in this case, where the Defendant was detained for

approxim ately 120 hours, this factor we ighs in favo r of supp ression.



              The trial court, in its supplemental fin dings , determ ined th at De fenda nt’s

parents were allowed to visit with him prior to his confession on May 8. This fact was

disputed by Defe ndant in th e trial court a nd on appeal.            However, under the

approp riate standards of review, we agree w ith the fin ding o f the trial c ourt on this

factor. This would w eigh in favo r of denyin g the m otion to suppre ss the sta temen t.



              The fourth factor, and the one which the supreme court has placed the

most significance upon, weighs heavily in favor of suppression.




                                            -12-
                The Defendant was not questioned for the first approximate ly 72 hours

that he was incarcerated.        When he was finally questioned, he again denied

involvement in the crimes. With no additional evidence of proba ble ca use, a nd still

no judicial determination of probable cause for the arrest, the Sheriff “locked

[Defen dant] back up” because he “knew tha t [Defendant] wa s blowing hot air .

. . again . . . .”



                When reviewing these facts, as we are required to do in light of

Huddleston, and cons idering that the “focus ” is on whether the evid ence was

obtained by exploitation of the Fo urth Ame ndme nt illegality, id. at 674, the second

and fourth factors outweigh the two factors which favor admissibility of the

confession. Therefore, the confession given by Defendant on May 8, 1996, to Scott

Walley and Sheriff Kelley must be suppressed. Accordingly, the judgments of

convic tion are revers ed an d this m atter is re man ded fo r a new trial.



                Defendant also argue s on a ppea l that the confe ssion shou ld have been

suppressed as being in violation of Rule 5 of the Tennessee Rules of Criminal

Procedure. Rule 5(a) states that a person arrested without a warrant must be taken

without unnecessary delay before the neare st appro priate m agistrate. T he State

concedes that the detention of the Defendant violated the rule. However, under

Huddleston, the tes t for the v iolation of this statutory rather than constitutional right

is the volun tariness o f the confe ssion un der the to tality of the circumstances.

Huddleston, 924 S.W.2d at 670. Under similar circumstances as found by the court

in Huddleston, we determine that the confession in this case should not be




                                            -13-
suppressed solely under Rule 5 of the Tennessee Rules of Criminal Procedure, even

though it must be suppressed under Fourth Amendment constitutional provisions.



              Although we have determined that this case must be reversed and

remanded upon the issue regarding Defendant’s confession, we will address the

remain ing issue s prese nted by D efenda nt.



                                P OLYGRAPH E XAMINATION



              Defendant contends that he should have been allowed access to the

results of his polygraph examination and should have been allowed to present the

results as evid ence . At the s uppre ssion hearin g, Age nt W alley tes tified that the

results indicated that Defendant was “deceptive” as to his involvement in the crimes

committed against the victim. Therefore, D efendant was allowed access to the

results of th e exam ination.



              Well-established law in Tennessee holds tha t the results of a polygraph

examination are not admiss ible as evid ence. State v. Hart, 911 S.W.2d 371, 377

(Tenn. Crim. A pp. 199 5); State v. Irick, 762 S.W .2d 121 , 127 (T enn. 19 88), cert.

denied, 489 U .S. 1072 , 109 S.C t. 1357, 1 03 L.Ed.2d 8 25 (198 9); State v. Adkins,

710 S.W .2d 525, 529 (Tenn. Crim . App. 1985 ); Grant v. State, 213 Tenn. 440, 443,

374 S.W.2d 391, 392 (1964). As the State correctly notes within its brief, neither the

offer to take a polygraph nor the circum stanc es su rroun ding th e exam are ad miss ible

as evidenc e. Adkins, 710 S.W.2d at 528-29 ; Grant, 374 S.W.2d at 392. This issue

is without m erit.




                                           -14-
                        R EVOLVER AND B ALLISTICS T EST R ESULTS



              Defendant argues that the trial court erred in admitting a revolver and

ballistic test results in to eviden ce.     Defe ndant a sserts th at the revolver was

inadmissible since his prior criminal record had been expunged. Furthermore, the

Defendant urges this court that the ballistics test results were so incon clusive as to

be ren dered neithe r releva nt nor p robativ e, but h ighly pre judicia l.



              During September 1994 at the Mid-South Fair in Memphis, Tennessee,

Defendant was arrested for carrying a loaded .22 caliber revolver. After pleading

guilty to charges of carrying a weapon on recreational property, Defendant was

placed on judicial diversion.       Evidently, Defendant completed his sentence of

diversion without furth er inciden t and his re cord wa s expun ged.



              Expungement pursu ant to ju dicial diversion includes “all recordation

relating to the person’s arrest, indictment or information, trial, finding of guilty and

dismissal and d ischa rge. . . .” T enn. C ode A nn. § 4 0-35- 313(b ). This statute ’s

purpose is to restore the defendant to the status the person occupied prior to such

arrest, indictment or informatio n. Def enda nt ma intains that ph ysical e videnc e is

inadm issible under th e judicial dive rsion statu te. There is no auth ority to sup port his

argum ent. The purpose of expunging records of a criminal charge is to place the

person back in the position he or she occupied prior to being arrested or charged.

State v. Sims, 746 S.W .2d 191 , 199 (T enn. 19 88). While the trial court did allow use

of the revolver as admissible physical evidence, he refused to allow admission of any

facts surround ing Defend ant’s prior arrest. The expungem ent languag e in our




                                             -15-
judicial diversion statute precludes use of proof of any arrest, indictment,

information, or trial. State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim. App.

1995). Physical evidence is not excluded under this statutory section, and this issue

is without m erit.



              Defendant comp lains the b allistic test results should have been

suppressed as they were “inconclusive” and , although relevan t, their probative value

was subs tantially outweighed by the dange r of unfair pre judice. Th e decisio n to

adm it or exclu de evid ence rests in the so und d iscretio n of the trial court, and th is

court will not overturn the trial court’s rulings ab sent a clear showing of abuse of

discretion. State v. Bigbee, 885 S.W.2d 797, 806 (Tenn. 1994). While the officer

who conducted the ballistics tests admitted the test results were not conclusive, he

testified that the weapo n could not be excluded as the potential murder weapon.

The officer also stated that the four class characteristics of the Defendant’s weapon

matched the bullet which killed the victim. The revolver and the murder weapon had

matching calibers, same number of land and grooves, matching land and groove

widths, and the same direction of barrel twists. These test results are relevant, and

the probative value clea rly outweighs the potential prejudicial effect of the

inconclu sive natur e of the res ults.



                      B ATSON C HALLENGE AND C HANGE OF V ENUE



              Defendant argues that the State’s exclus ion of c ertain black jurors was

in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69




                                           -16-
(1986). Following the conclusion of voir dire, the State exercised its peremptory

challenges against four (4) jurors, specifically jurors Rivers, Howell, Woods and

Bryant. Defendant objec ted under Batson that such challenges were based upon

willful and purposeful discrimination by the State. While the Defendant argued that

these challe nges resulte d in all blacks being exc luded fro m the jur y, the State

responded, “[I]t’s been an unfortunate coincidence that most everybody that knows

the defendant or his family is African-American, but that’s a sociological fact that the

State can’t be p rejudiced by. . . .”



              After Defendant objected, the State responded to each c hallenge with

an individual explanation fo r the perem ptory challenge . First, with regard to juror

Rivers, the State cited the fact that he had b een throug h the criminal co urts before

and worked with ind ividuals similar ly situate d to the Defe ndan t on a d aily basis. The

State referenc ed the ch allenge to juror How ell due to her relationship with the

Defendant and his fa mily, and that, in response to questioning, so me of her a nswers

“gave her some pause about her judgment in this case.” Juror Woods was excluded

by the State as he has a son the same age as the Defendant and is frien ds with the

Defen dant. Juror Bryant had tw o fam ily mem bers c onvicte d of felo ny offen ses in

Fayette C ounty.



              There is a three-step analysis defined in Batson which is u sed to

determine whethe r purpos eful discrim ination ha s occurr ed in jury se lection. Batson,

476 U.S. at 96-98 . First, the opponen t of the perem ptory challenge must establish

a prima facie case of racial discrimination. Second, the one exercising the challenge

must present a race-neutral explanation for exercising the challenge. Third, the trial




                                           -17-
court is to determine w hether the rea sons given a re sufficient or are pretexts for

discrimin ation.



              In W oods on v. P orter B rown L imestone Company, Inc., 916 S.W.2d

896, 904 (Tenn. 1996), our supreme court held that in accom plishing the mand ate

of Batson, the trial court s hould sta te clearly on the rec ord, ou tside th e jury’s

presence, the facts relied upon for finding the prese nce o r abse nce o f a prim a facie

showing. If the trial court finds that a prima facie showing has been made, then the

party seeking to exclude the juror must have an opportunity to offer neutral and

nondiscrim inatory explanations for the exercise of the challenge. “Thereafter, the

judge must determine, based on all the evidence, whether purposeful discrimination

has been established.” Id. at 904. While the procedure used by the tr ial cou rt did

not explicitly follow these guidelines, we must conclude that the trial judge

determined first that a prima facie ca se of d iscrim ination was established and,

second, that the trial judge rejected Defendant’s objection by concluding that there

was no purposeful discrimin ation by the State. Id. at 905 . Wh ile the tria l court d id

not specifically state within the record the reasons for each finding , the rec ord of v oir

dire suppo rts the trial c ourt’s ru ling as to Def enda nt’s Batson objection. Upon review

of the record, we will not set aside the rulin gs of th e trial co urt as th ey are not cle arly

erroneo us. See Woodson, 916 S.W .2d at 906 (citations o mitted).



              After Defen dant m ade a c ontemporaneous motion for a change of

venue during his voir dire challenges, the trial court overruled his motion. Defendant

objected on the basis of the prosecutor’s statement that most every African-

American in the potential jury pool knew the Defendant.                   Rule 21(a) of the

Tennessee Rules of Criminal Procedure provides for a change of venue “if it appears

                                              -18-
to the cour t that, due to undu e excitemen t against the defen dant in the cou nty where

the offense was committed or any othe r cause , a fair trial proba bly could n ot be ha d.”

The decision to change venue rests in the sound discretion of the trial court and will

not be overtu rned ab sent a cle ar abus e of discre tion. Rippy v State, 550 S.W .2d

636, 63 8 (Ten n. 1977 ); State v. Melson, 638 S.W .2d 342 , 360 (T enn. 19 82).



              In order to re verse a d efenda nt’s con viction du e to the denia l of his

motion to change venue, the defendant must establish that the juro rs emp aneled to

hear his case were prejudiced or biased against h im. State v. Burton, 751 S.W.2d

440, 451 (T enn. C rim. App . 1988); State v. Evans, 838 S.W.2d 185, 192 (Tenn.

1992), cert. denied, 114 S.C t. 740 (19 93). There is no evidence in the record that

undue excitem ent or an y other ca use thre atened his right to a fair trial in that county.

The mere fact that there was extensive knowledge of the crimes and the defendant

is not su fficient to rende r the trial c onstitu tionally unfair. State v. Kyger, 787 S.W.2d

13, 19 (Tenn. Crim. App. 1989) (citation omitted).             Absent any proo f by this

Defendant that the jurors were prejudiced against him, we find this issue to be

without m erit.



                                  M OTION FOR M ISTRIAL



              Defendant argues that the trial court erred in overruling his motion for

a mistrial based upon the prose cutor’s reference to Defendant’s expunged conviction

during the trial. During pretrial motions, the trial cou rt deter mine d that D efend ant’s

prior arrest h ad be en pro perly expunged and, therefore, the prosecution could not

“go into the un derlying circ umsta nces o f any crimes [the D efendant] wo uld have

committed while he had the gun or any charges against him.” Defendant claims that

                                            -19-
the prosecution did present testimony of and reference these inadmissible matters.



              A mistrial is an approp riate remedy w hen a trial cannot con tinue, or a

miscarriage of justice wo uld result if it did. State v. McPherson, 882 S.W.2d 365,

370 (Tenn. Crim. App. 1994). The decision to grant a mistrial rests in the sound

discre tion of th e trial co urt, and this court will not interfere with the exercise of that

discretion absent clear abuse appearing on the face of the record. State v. Jones,

733 S.W.2d 517, 522 (Tenn . Crim. A pp. 198 7); State v. Adkins, 786 S.W.2d 642,

644 (T enn. 19 90); McPherson, 882 S.W.2d at 370.



              Clearly, the record demonstrates that the prosecutor elicited testimony

regarding the pistol taken from the Defendant, but the prosecutor at no instance ever

inquired into the unde rlying circ ums tance s surro undin g the D efend ant’s arrest. As

previo usly determ ined, the testimon y conce rning De fendan t’s posse ssion of a

revolver was a dmis sible, a nd the re is no evidence of a “manifest necessity” by which

the trial cou rt shou ld have de clared a m istrial. See Arnold v. State, 563 S.W.2d 792,

794 (Ten n. Crim. App . 1977).



                           T ESTIMONY OF J ESSE J AMES J ONES



              Defendant contends that the trial court erred in excluding some portions

of the testimon y of Jesse Jame s Jone s, a cellm ate of the D efenda nt. Specifically,

Defendant asserts that the trial court excluded testimony regard ing the Defe ndan t’s

lack of ability to use a telephone while incarcerated.            As this issue was not

specifically included within the Defendant’s motion for new trial, this issue is not




                                            -20-
prope rly before this court and is, therefore, waived. Tenn. R. App. P. 3(e); State v.

Clinton, 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).



                               J UDGMENT OF A CQUITTAL



             Defen dant arg ues tha t the trial court e rred by failing to grant a motion

for a directed verdict and judgment of acquittal following the conclusion of the S tate’s

proof and at the end of the trial. The duty of the trial judge and the reviewing court

on the determination of a motion for a judgment of acquittal is the same as for a

motion for a directe d verdict. State v. Torrey, 880 S.W.2d 710, 712 (Tenn. Crim.

App. 1993). This duty is as follows:

      The rule for determining a motion for a directed verdict requires the trial
      judge and the reviewing court on appeal to look at all of the evidence,
      to take the strongest legitimate view of it in favor of the opponent of the
      motion, and to allow all reasonable inferences from it in its favor; to
      discard all coun tervailin g evide nce, a nd if then, there is any dispute as
      to any material determinative evidence, or any doubt as to the
      conclusion to be drawn from the whole evidence, the motion must be
      denied.

State v. Thompson, 549 S.W .2d 943, 946 (Tenn. 197 7) (citing Jones v. State, 533
S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).


             Defendant was convicted of murder in the perpetration of robbery and

second degree m urder, which the trial court merged as one con viction for felony

murder. At the time of this offens e, a reckle ss killing of an other committed in the

perpetration of or attempt to perpetrate any robbery or burglary constituted first

degree murder. Tenn. Code Ann. § 39-13-202(a)(2). He was also convicted of

espe cially aggravated robbery. Especially aggravated robbery is the intentional or

knowing theft of property from another person accomplished by a deadly weapon




                                          -21-
and the victim suffers serious bodily injury. Tenn. Code Ann. §§ 39-13-401 and

-403.



              From the record, it is clear that the evidence is sufficient to support the

trial court’s refu sal to gran t these motions. While Defendant focuses upon the

element of “prem editatio n” in his brief, this mental state was not required by these

offenses and his argument is moot. In his own statement, Defendant adm itted to

intentio nally using a revolv er to rob the victim of his sto re earn ings. W e note that all

evidence admitted at the trial, even if admitted erroneously, can be considered when

addressing a Defendant’s challenge to the sufficiency of the evidence to sustain the

conviction. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265

(1988); State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981).                 While the

Defendant claims to have accidentally fired the handgun, evidence demonstrated

that it would take a significant amount of pressure to discharge the weapon. In any

event, the reckle ss use o f the wea pon res ulting in the d eath of the victim wh ile

Defendant comm itted a robb ery is sufficien t to constitute conviction s of felony

murder a nd espec ially aggravated rob bery.



                              L ESSER INCLUDED O FFENSES



              W hile we are addressing each of the issues raised by Defen dant,

despite the fact that we have reversed the convictions based upon his first issue, we

note that if the case is retried, any issue regarding the charging of lesser included

offense s mus t be base d upon the reco rd prese nted in the new trial.




                                            -22-
             Defendant argues that the trial court erred in refusing to ch arge the jury

with the lesse r offenses of premed itated first degree m urder, including volun tary

manslaughter and criminally negligent homicide. Reasoning that there was not

adequate evidence of passion or provocation, the trial court refused to charge the

jury on these lesser offenses. The trial court charged second degree murder as a

lesser offense of premeditated first degree murder and charged reckless homicide

as a lesser offen se of felony mu rder.



             W e note that the Defendant failed to include this issue in his motion for

a new trial. T ennes see Ru le of App ellate Procedure 3(e) requires that issues in a

motion for new trial be “specifically stated . . . otherwise such issues will be treated

as waived .” W e do h ave the autho rity to ad dress the trial court’s failure to charge

the jury on approp riate lesser offenses as plain error. Ten n. R. Crim. P. 5 2(b).

Howeve r, for the reasons sta ted hereafter, we find no plain error.



             The Defen dant wa s convicte d by the jury of second d egree m urder,

felony murder and especially aggravated robbery. The trial court merged the offense

of second degree murder into the co nviction for m urder in the perpetra tion of a

felony. Likewise, even if the jury had been charged with voluntary manslaughter and

crimin ally neglig ent ho micid e and had delivered a guilty verdict on each of those

counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convictions

would have been merged by the trial court into the conviction for felony murder. The

result would have been the same as Defendant’s current conviction for felony

murder. Therefore, any error in failing to charge these offenses is harmless. Tenn.

R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).




                                          -23-
                             P ROSECUTORIAL MISCONDUCT



              Defendant asserts in his brief that th e State ’s prosecutor conducted

hims elf inappropriately throu ghout the trial by failing to com ply with discovery,

impe rmiss ibly communicating with a witness during trial recess, and noting

Defe ndan t’s expun ged c onvictio n durin g the tria l. Defen dant’s motion for new trial

spec ifically asserts that the trial court erred “in allowing the State to argue during the

sentencing phase, matter which was outside the scope of the aggravating factors

presented by the State.” There is no mention in his motion for new trial of any

communication by the prosecutor with a witness during the trial or of any failure by

the State to comply with discovery. During the Defendant’s hearing on the motion for

new trial, his counsel orally requested that the portion of his motion referencing the

“sentencing phase” of the trial be struck as the Defendant received the minimum

sentence with reg ards to all coun ts. As th e Def enda nt’s rem aining assertions of

prosecutorial misconduct were not specifically included within his motion for new

trial, this issue is not properly before this court and is, therefore, waived. Tenn. R.

App. P . 3(e); State v. Clinton, 754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).




                                      C ONCLUSION



              For the reaso ns sta ted in th is opinion addressing Defendant’s issue on

the motion to suppre ss, the jud gmen ts of con viction fo r felony murd er and espe cially

aggravated robbery are reversed. Reversal of the judgments also negates the

                                           -24-
merger of the s econ d deg ree m urder convic tion into the felony murder conviction.

By return of a verdict of guilty of second degree murder, the jury acquitted the

Defendant of the greater offense of premeditated first degree murder in that count

of the ind ictme nt. Acc ording ly, this case is remanded for a new trial on the charges

of one count of felony murder, one count of second degree murder, and one count

of especially aggra vated robbe ry.


                                 ____________________________________
                                 THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, JR., Judge




                                          -25-
