        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                              FILED
                          AT KNOXVILLE                        June 4, 1999

                                                           Cecil Crowson, Jr.
                      FEBRUARY SESSION, 1999               Appe llate Court
                                                                Clerk



STATE OF TENNESSEE,        )   C.C.A. NO. 03C01-9803-CC-00105
                           )
      Appellee,            )
                           )
                           )   BLOUNT COUNTY
VS.                        )
                           )   HON. D. KELLY THOMAS, JR.
WILLIAM DOTSON,            )   JUDGE
                           )
      Appe llant.          )   (Direct Appeal - Attempted Second
                           )   Degree Murder and Aggravated
                           )   Robbery)




FOR THE APPELLANT:             FOR THE APPELLEE:

JOE COSTNER                    JOHN KNOX WALKUP
315 High Street                Attorney General and Reporter
Maryville, TN 37804
                               TODD R. KELLEY
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               MIKE FLYNN
                               District Attorney General

                               EDWARD P. BAILEY, JR.
                               KIRK ANDREWS
                               Assistant District Attorneys
                               363 Court Street
                               Maryville, TN 37804




OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                  OPINION

       On February 20, 1990, Appellant William Dotson was indicted by the

Blount Coun ty Grand Jury for attempted first degree murder, aggravated assau lt,

and aggravated robbery . After a jury trial on Nove mber 19 –22, 1996 , the jury

acquitted Appellant of attempted first degree murder, but failed to reach a verdict

on the charge of aggravated robbery, the charge of aggravated assault, and on

all lesser included offenses of attempted first degree murder and aggravated

robbery. Appellant was subsequently tried for attempted second degree murder

and aggra vated robbe ry on J uly 15 –17, 1 997. O n July 17, 1997, Appellant was

convicted of attemp ted second degree murder and aggravated robbery. On

February 23, 1998, the trial cou rt sentenced A ppellant as a R ange I stand ard

offender to consecutive terms of twelve years for each conviction. Appellant

challenges his convictions, raising the following issue: w hether the trial court

erred when it refused to grant a mistrial after a witness for the Sta te testified that

Appellant had been arreste d for a federal paro le violation. After a review of the

record , we re verse the jud gme nt of the trial cou rt and re man d for a n ew tria l.




                                        FACTS




       Steven Bartlett testified that he was working as a gas attendant at the

Smoky View Mark et in Blo unt C ounty on De cem ber 31 , 1989 . At app roxim ately

11:00 p.m., Bartlett was checking the gas pumps when a dark-colored 1979

Cama ro pulled into the parking lot.        When two men wearing ski masks and


                                           -2-
carrying guns got out of the Camaro and went into the store, Bartlett hid behind

a gas p ump . While he wa s beh ind the pum p, Bar tlett cou ld see that the driver of

the Cam aro ha d rem ained in the vehicle. Bartlett identified the driver as Larry

Goodwin. The two men stayed in the store for approximately five to ten minutes

before getting back in the Camaro.




      Kari Irwin testified that she was working at the Smoky View Market on

December 31, 1989, when she heard a customer scream. Irwin then looked up

and saw one man pointing a gun at her and saw another man with a gun standing

next to a pay phon e by th e doo r. The m an wh o was pointin g a gu n at Irw in

ordered her to open the ca sh register. Irwin ope ned the registe r, and the armed

man took the money from the register and took a bag that had m oney in it. Irwin

testified that even though both of the armed men were wearing ski masks, she

could tell that the man pointing the gun at her was Caucasian and had blue eyes.

When the two men left, Irwin called the owner of the store and the police. Irwin

could no t identify the m an wh o pointed a gun a t her.




      Depu ty Jerry Orr of the Blount County Sheriff’s Department testified that

on the evening of December 31, 1989, he received a report that there had been

an armed robbery at the Smo ky View M arket. Orr also received information that

a 1970 ’s mo del da rk-colo red C ama ro wa s involved in the ro bbery .      Shor tly

thereafter, Orr saw a vehicle that matched the description he had been given.

Orr then notified some other police officers that he had seen the vehicle and he

began pursuit. When Orr turned on the blue lights of his police vehicle, the front


                                         -3-
passenger of the Ca maro c limbed through the w indow, sat on top of the door,

and fired three shots at Orr. Orr testified that the man who shot at him had the

same amou nt of baldn ess as A ppellant.




       Orr testified that as he continued the pursuit of the Camaro, he and the

front passenger of the Camaro exchanged gunfire. Shortly thereafter, several

other police officers joined the chase. Orr testified that at one point in the chase,

his car collided with the Camaro, and he was able to see that the driver of the

Cama ro was Richard Burchfield. Orr subsequently lost sight of the Camaro, but

he even tually saw that the Camaro had been driven into a lake and some other

police officers ha d taken Good win into cu stody. O rr testified that he had seen

that Go odwin w as the pa sseng er in the ba ck seat o f the Cam aro.




       Officer Ron Boruff of the Alcoa, Tennessee Police Department testified that

he participated in the pursuit of the Camaro on December 31, 1989. When O rr

left the chase, Boruff continued the pursuit. The front passenger of the Cam aro

fired three sh ots at Bo ruff. Boruf f contin ued p ursuit u ntil the Cam aro drov e into

a shallow lake. The driver and the front passenger got out of the Camaro and ran

away, but Goodwin fell as he attempted to run and he was apprehended by

Boruff an d anoth er officer.




       Sandra Norto n testifie d that G oodw in, Bur chfield , and A ppella nt we re all

at her house on December 31, 1989. The three men arrived at Norton’s house

at approximately 6:00 or 6:30 p.m. and they left approximately one hour later.


                                           -4-
Norton was not sure whether the thre e me n all left in the same vehicle, but she

knew that at leas t one of the m drov e awa y in a dark Cam aro.




       Richard Burchfield testified that he had been drinking heavily all day on

December 31, 1989. Burchfield testified that although he had pled guilty to the

robbery of the Smoky View Market and to aggravated assault, he could not

remember going into the market and he could not remember who had entered the

market with him. Burchfield testified that he had been driving the Camaro when

it went into the lake, b ut he c ould n ot rem emb er wh o else was in the ca r with h im

when it went into th e lake. H e assu med th at Goo dwin an d Appe llant were with

him becau se that is w hat he h ad bee n told. Bur chfield could not remember

whether he had fired any s hots during the police chase, but he did not think that

he had. Burchfield also testified that he turned himself in to the police the next

day.




       Larry Goodwin testified that he met Appellant and Burchfield at the place

where Burchfield was living on December 31, 1989. Later that evening, the three

men went to the Smoky View Market.               Goodwin testified that he drove the

Cama ro to the market, Burchfield sat in the front passenger seat, and Appellant

sat in the bac k seat. W hen they reached the store, Goodwin stayed in the car

while Appellant and Burchfield went in. When the two men came out of the

marke t, Burch field go t in the front passenger seat and Appellant got in the back.

Good win then drove a way.




                                           -5-
          Goo dwin testified that shortly after he drove away from the Smoky View

Marke t, Burch field told him to stop th e veh icle. Bu rchfield got in the driv er’s seat,

Goodwin got in the b ack sea t, and Ap pellant go t in the front p assen ger sea t.

When a police vehicle began pursuit, Appellant leaned out of the front passenger

window and began shooting at the police vehicle with a rifle and then with a

pistol.




          Goo dwin testified that after he was caught, he had initially lied to the police

about the events surrounding the rob bery a nd su bseq uent c hase . Goo dwin also

testified that he had given several different acc ounts of the ev ents. How ever,

Good win testified that he w as telling the truth at trial.




          Depu ty Marshall Ronald Donelson of the United States Department of

Justice testified that he arrested Appellant in Greenville, South Carolina, on Ap ril

24, 1995. W hen the prosec utor aske d Don elson w hy he h ad arres ted App ellant,

Donelson responded, “Mr. Dotson was arrested on the basis o f a fede ral paro le

violation warrant.” Defense counsel then requested a bench conference during

which he objected to Donelson’s statement, requested a curative instruction, and

moved for a m istrial. Th e trial court told defense counsel it would consider the

motion for a mistrial and the court gave the prosecutor specific instructions about

how to question Donelson.          After a series of questions, the prosecutor asked

Donelson whether Appellant was arrested on a fugitive warrant from Tennessee

for flight to avoid prosecution for the charges at issue in this case. Donelson then

stated, “That’s another reason, yes, sir.”          Defense counsel then requested


                                             -6-
another bench conference during which he again m oved for a mistrial because

Donelson had “just reinforced what he sa id earlier.” The trial court stated that it

wou ld cons ider the matte r later, an d the p rosec utor co ntinue d with D onels on’s

direct examination. At the beginning of trial the next day, the trial court instructed

the jury as follows:

      Yesterday, you heard testimony, one of the last witnesses, a Deputy U.S.
      Mars hall, Ron Donelson. You’re instructed to disregard the statement by
      Mr. Donelson that the Defen dant, M r. Dotson , was arre sted in S outh
      Carolina on fede ral proce ss, and y ou sha ll not consid er that part of his
      testimon y for any p urpose at all.
Although the reco rd is not en tirely clear, this instruction was apparently given

approx imately e ighteen hours a fter Done lson’s testim ony.




                                     ANA LYSIS




       Appellant contends that the trial court should have granted his request for

a mistrial after Donelson testified that Appellant had been arrested for a federal

parole violation. Specifically, Appellant contends that he was prejudiced by

Don elson ’s testimony because it informed the jury that Appe llant had been

convicted of some unknown federal crime in the past and created the impression

that Appe llant had violated his federal parole by committing the offenses for

which he was charged in this case. Appellant also contends that when Donelson

testified that the Tennessee fugitive warrant was “another reason” that Appellant

had been arrested, this reinforced the testimony about the federal parole violation

and also created the impression that Appellant was facing other charges besides

those in this case . Appellant place s great em phasis on the fact that the trial court



                                          -7-
failed to give a curative instruction until approximately eighteen hours after

Donelson’s improper testimony.1




         The decision of wheth er 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 (Te nn. 199 0). “Gen erally, 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 for declaring a mistrial 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 whet her the re is a “manifest necessity” for a mistrial, “‘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).




         There is no ques tion tha t Don elson ’s testim ony a bout A ppella nt’s federal

parole violation was im prope r. This te stimo ny ob vious ly had no relevance to any

issue in the case and w as clea rly preju dicial. D onels on’s testimony informed the

jury that Appellant had previously been convicted of a federal crime and created

the impression th at Appellant ha d violated his fede ral parole by committing the


         1
            We note that Appellant does not contend that the prosecutor intentionally elicited the
objec tiona ble te stim ony from Don elso n or a cted impr ope rly in a ny ot her m ann er in c onn ectio n with this
testimony. In fact, defense counsel expressly stated during the hearing on Appellant’s motion for a new
trial that the pro secuto r had ne ver acte d impro perly in reg ard to Do nelson’s testimon y.

                                                        -8-
offenses for wh ich he was c harge d in this case .                      In add ition, Do nelso n’s

subsequent testimony that the Tennessee fugitive warrant was “another reason”

that Appellant was arr ested se rved to emp hasiz e the te stimo ny ab out Ap pellan t’s

federal parole violation. Of course, even though Donelson’s testimony about

Appe llant’s federa l parole violatio n was clearly inadm issible a nd wa s clear ly

prejud icial, a mistrial was only required if the error created a “manifest necessity”

for a mistria l.




        We have exam ined n ume rous c ases in which th e failure to g rant a mistrial

has been upheld on appeal. While Tennessee Courts do not apply any rigid test

when examining the failure to grant a mistrial after a witness has given improper

testimony, there are certain factors that are often considered: (1) whether the

improper testimony was elicited by the State or whether it was a spontaneous

declaration by the witness, (2) whether the case against the defendant was

strong or weak, and (3) whether the trial court gave a prompt curative instruction.2

See, e.g., State v. Hall, 976 S.W.2d 121, 147–48 (Tenn. 1998) (holding that

improper testimony about defendant’s prior crime did not create a manifest

neces sity for a mistrial because trial court gave an immediate curative

instruction); State v. Ma this, 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997)

(holding that improper testimony did not cre ate a m anifest ne cessity for a mistrial

because trial court ga ve a pro mpt cu rative instru ction); State v. Hall, 947 S.W.2d

181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about


        2
         We note that these three factors are by no means the only factors which are relevant to a
determination of whether the trial court properly refused to grant a mistrial nor is it necessary to examine
these factors in every unique case. Rather, these are three factors which are often examined in cases
such as this one, and we conclude that they are especially important in this case.

                                                   -9-
defen dant’s prior incarceration did not create a manifest necessity for a mistrial

because trial court gave a promp t curative ins truction); State v. McKinney, 929

S.W.2d 404, 405 (Tenn. Crim. App. 1996) (holding that improper testimony about

defen dant’s prior crime did not create a manifest necessity for a mistrial because

the evidence of defend ant’s guilt w as ove rwhelm ing); William s, 929 S.W.2d at

388 (holding that improper testimony about defendant’s prior bad acts did not

create a manifest necessity for a mistrial because trial court ga ve an im media te

curative instruction ); State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993)

(holding that improper testimony did not create a ma nifest necessity for a mistrial

because the evidence against the defendant was strong and the trial court gave

an imme diate cura tive instructio n); Millbrooks, 819 S.W.2d at 443 (holding that

improper testimony did not create a manifest necessity for a mistrial because trial

court gave a promp t curative ins truction); State v. David T. Jones, No. 01C01-

9710-CC-00445, 1998 WL 917810, at *2 (Tenn. Crim. App., Nashville, Dec. 21,

1998) (holding that improper testimony did not create a manifest necessity for

a mistrial because the testimony was wholly unsolicited, there was overwhelming

evidence of guilt, and th e trial court g ave an imme diate cura tive instructio n); State

v. Bill Sandel, No. 03C01-9606-CC-00237, 1998 WL 28260, at *3 (Tenn. Crim.

App., Knoxville, Jan. 26, 1998)           (holding that improper testimony about

defend ant’s prior c riminal ac ts did not cre ate a m anifest ne cessity for a mistrial

because the testimony was spontaneous and nonresponsive and the trial court

gave a proper curative instruction); State v. Grover Livesay, No. 03C01-9510-CC-

00298, 1996 WL 578499, at *3–4 (Tenn. Crim. App., Knoxville, Oct 9, 1996)

(holding that improper testimony did not create a ma nifest necessity for a mistrial


                                           -10-
because the testimony was unresponsive and the trial court gave an imm ediate

curative instruction).




       Initially, we note that contrary to the State’s assertions, the prosecutor in

this case is not entirely blameless for Donelson’s improp er statem ents. W e

agree with the State tha t there is nothing in the re cord which indicates that the

prosecutor intentiona lly elicited Do nelson ’s statem ent that A ppellant had been

arrested for a feder al parole v iolation. In fact, it appears from the record that the

prosecutor did not expect Donelson to refer to the federal parole violation.

Howe ver, Donelson’s response was hardly unforeseeable.                    Inde ed, it is

reaso nable to assume that when a United States deputy marshall who has

arrested a person because of a federal parole violation is asked why he arrested

that person, the deputy marshall would likely respond that he arrested the person

for a federa l parole vio lation. The prosec utor should hav e fores een th at his

question about why Appellant was arrested invited exactly the kind of response

that Donelson gave.




       Second, we note that the evidence of Appellant’s guilt was far from

overwhelming. Although several witnesses testified that one of the masked men

who comm itted the armed robbery and subsequently fled the police in the

Cama ro had physical characteristics that were generally consistent with those of

Appe llant, Goodwin was the only witness who ever positively identified Appellant

as one o f the pe rpetra tors of th e crim es at iss ue in th is case . Furthe r, Goo dwin

expre ssly adm itted tha t he ha d bee n untru thful in s evera l of the statements he


                                           -11-
had given the police in regard to the armed robbery and subsequent police

chase. Goodwin testified that in his initial interview with the police, he had lied

about several asp ects o f the rob bery a nd ca r chas e and had a lso with held

information about his two accomplices.              Goodwin also testified that he

subs eque ntly gave the po lice as m any d ifferent s tories a bout th e eve nts in

question as he possibly could. Goodwin testified that in addition to lying to the

police, he ha d also lied to o ther pe ople abou t the ev ents a t issue in this case. In

addition, Goodwin testified that his criminal record c onsis ted of a pprox imate ly

twenty-s even fe lony con victions.




       Third, we no te that th e trial co urt did not give a curative instruction until the

day after Donelson had testified, and although the record is not entirely clear, the

instruction was apparently not given until approximately eighteen hours after the

improp er testimo ny. We agree with the State that there is no per s e rule that a

curative instruc tion m ust be given imm ediate ly in order to b e effective . Howev er,

as indicated by the authorities cited above, the vast majority of cases in which

Tennessee Cour ts hav e uph eld a tria l court’s failure to grant a mistria l in

situations similar to the one in this case have based that determination at least

partly on the fact tha t a cura tive instruction was given immediately or at least

shortly after the improper testimony. We conclude that in this case, the trial

court’s failure to give a promp t curative ins truction afte r Done lson referr ed to

Appe llant’s federa l parole violatio n and subs eque ntly reinforced that testimony

was especially prejudicial. The general rule is that the jury is presumed to follow

the trial cou rt’s instruction not to con sider the im proper te stimon y. See Math is,


                                           -12-
969 S.W.2d at 422. However, because the trial court did not give the curative

instruction until the day after Donelson made the imprope r statements, the jury

had a minim um of a pproxim ately eigh teen ho urs durin g which they we re free to

consider the fact that Appellant had been arrested for a federal parole violation.

It is clear that Donelson’s improper testimony created the need for a prompt

curative instruction in order to p revent u nfair prejud ice to Ap pellant, an d in fact,

the prosec utor exp ressly ag reed w ith defense counsel that Donelson’s improper

testimony required a prompt curative instruction.3




         We conclude that in this case, Donelson’s improper testimony about

Appe llant’s federal parole violation created a “manifest necessity” for a mistrial

because the trial court’s failure to give a curative instruction until appro xima tely

eighteen hours after the improper testimony precluded an impartial verdict. It has

not escaped our notice that the jury in Appellant’s first trial was unable to reach

a verdict on the charges for attempted second degree murder, aggravated

robbery, and all lesser included offenses.4 While we do not have the transcript

of the first trial before us, we presume that Donelson did not testify about

Appe llant’s federal parole violation in th e first trial. If Done lson did n ot testify

about Appe llant’s fe deral p arole v iolation in the first trial, the n App ellant’s

argument that he was unfairly prejudiced by the improper testimony in the second

trial is strengthened even more . If Done lson d id give the im prope r testim ony in


         3
          The reco rd ind icate s tha t after objec ting to Don elso n’s re feren ce to App ellant ’s fed eral p arole
violation, defense counsel stated that he believed the trial court should “instruct the Jury to disregard what
[Donelson] just said.” The prosecutor then stated, “Yeah, I think you better.”

         4
           The record indicates that for the charge of attempted second degree murder, seven jurors voted
for guilty and five jurors voted for not guilty. For the charge of aggravated robbery, nine jurors voted for
guilty and th ree jurors voted for n ot guilty.

                                                      -13-
the first tria l, the pro secu tor’s failu re to pre vent th is error from h appe ning a gain

in the second trial is inexcusable.




       Accordingly, the jud gme nt of the trial cou rt is RE VER SED and th is case is

REM AND ED fo r a new trial.




                                     ____________________________________
                                     JERRY L. SMITH, JUDGE




CONCUR:




___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
L. T. LAFFERTY, SENIOR JUDGE




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