             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE                 FILED
                             MARCH 1995 SESSION
                                                               January 7, 1998

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk

STATE OF TENNESSEE,             )
                                )
             Appellee,          )    No. 01C01-9406-CR-00207
                                )
                                )    Davidson County
v.                              )
                                )    Hon. J. Randall W yatt, Jr., Judge
                                )
RICKY HILL KRANTZ,              )    (First Degree Murder and Aggravated Assault)
                                )
             Appellant.         )




For the Appellant:                   For the Appellee:

Karl Dean                            Charles W. Burson
District Public Defender             Attorney General of Tennessee
   and                                       and
Jeffrey A. DeVasher                  Christina S. Shevalier
Michele S. Hall                      Assistant Attorney General of Tennessee
Sheila Jones                         450 James Robertson Parkway
Assistant Public Defenders           Nashville, TN 37243-0493
Stahlman Bldg.
211 Union Street                     Victor S. Johnson, III
Nashville, TN 37201-5066             District Attorney General
(ON APPEAL)                                  and
                                     Katrin Novak Miller
David M. Siegel                      Nicholas Bailey
Jeff Powell                          Assistant District Attorneys General
Assistant Public Defenders           102 Metro Courthouse
Stahlman Bldg.                       Nashville, TN 37201
211 Union Street
Nashville, TN 37201-5066
(AT TRIAL)



OPINION FILED:_______________________



AFFIRMED

Joseph M. Tipton
Judge
                                   O P I N I ON



              The defendant, Ricky Hill Krantz, appeals as of right from his conviction

by a jury in the Davidson County Criminal Court for felony murder and aggravated

assault, a Class C Felony. The defendant was sentenced to life imprisonment for the

felony murder conviction and as a Range II, multiple offender to seven years in the

custody of the Department of Correction for the aggravated assault conviction. The trial

court ordered the defendant’s sentences to be served consecutively. The defendant

contends that:

              (1) the evidence is insufficient to support the first degree
              murder conviction;

              (2) the trial court erred by not dismissing the indictment due to
              the state’s failure to preserve a blood sample taken from the
              defendant on the evening of the offense;

              (3) the trial court erred by not dismissing the indictment upon
              grounds of fundamental fairness because the defendant
              should not have been retried after a mistrial upon a theory that
              was not relied upon by the state in the first trial; and

              (4) the trial court erred by allowing the state to use a
              peremptory challenge in a discriminatory manner in violation of
              the Sixth and Fourteenth Amendments to the United States
              Constitution and in violation of Article I, Section 9 of the
              Tennessee Constitution.

We conclude that the evidence is sufficient and that the trial court did not err as the

defendant claims. We affirm the trial court’s judgment of conviction.



              The defendant was tried for the first degree murder of Dan Newland and

for the attempted first degree murder of Gary Dean Harris. The evidence related to the

events that occurred during the early morning hours of February 1, 1993, when the

defendant and Jack Speakman got into an altercation at the Next Door Tavern.



              Gary Dean Harris, the victim of the aggravated assault and an

acquaintance of the defendant, testified that on January 31, 1993, Superbowl Sunday,


                                             2
he visited Big O’s Tavern at approximately 3:00 p.m. where he drank beer, ate some

food, and watched some of the football game. He stated that he saw the defendant at

the tavern.



              Mr. Harris said that he then left the first tavern and went to the Next Door

Tavern. He stated that the defendant arrived at some point in the evening. He said

that he spoke to the defendant, and he did not believe that the defendant was

intoxicated. According to Mr. Harris, the defendant did not have difficulty walking and

his speech was not slurred. Mr. Harris testified that he later saw the defendant and

Kevin Williams arm wrestling across the room. He said that he had seen Mr. Williams

but not the defendant arm wrestle at the Next Door Tavern on earlier occasions. Mr.

Harris testified that he then saw the defendant and Mr. Williams fighting on the floor.

Mr. Harris said that he did not know how or why the fight started.



              Mr. Harris testified that he and Dan Newland helped break up the fight.

He said that after the fight was broken up, the defendant left the tavern. He stated that

a while later, he was walking away from the tavern's front door when he felt a piece of

wood strike him in the back. Mr. Harris testified that he looked behind him and saw the

door of the tavern open with someone standing in the doorway with a gun. He said he

saw Mr. Williams kick the door closed, heard a gunshot, and felt the gunshot hit him in

the back. Mr. Harris testified that he then lost consciousness and did not remember

anything until he woke up in the hospital.



              Jack Speakman testified that he had known the defendant for several

years. Mr. Speakman said that on January 31, 1993, at approximately 10:30 or 11:00

p.m., he and the defendant were shooting pool at the Next Door Tavern when the

defendant wanted to arm wrestle. Mr. Speakman stated that he told the defendant that

he did not want to arm wrestle but that he knew someone who would. He introduced



                                             3
the defendant to Kevin Williams, a friend of Mr. Speakman’s, and the defendant and

Mr. Williams agreed to arm wrestle. Mr. Speakman testified that he and another man

who he did not know bet money on the first match, which Mr. Williams won. Mr.

Speakman stated that the defendant and Mr. Williams then agreed to a second match.



              Mr. Speakman testified that before the second match actually started, the

defendant grabbed Mr. Williams' hand, slapped it down on the bar, and picked up the

money. Mr. Speakman said that as the defendant got up to leave, he put the defendant

in a neck hold and threw him to the ground. He stated that Mr. Williams then grabbed

the money from the defendant while the defendant was on the floor. Mr. Speakman

testified that he was pulled off of the defendant by his wife and others.



              Mr. Speakman testified that the defendant got up and walked out of the

tavern. He said that the defendant was angry when he left. He stated that Keith

Walker followed the defendant out of the tavern to talk to the defendant. Mr.

Speakman testified that he also went outside the tavern after approximately fifteen to

twenty seconds. He said that he saw the defendant get into his truck. Mr. Speakman

stated that the defendant was speaking to Mr. Walker through the truck window when

the defendant yelled at Speakman, "I'll be back to kill you, you S.O.B." He said that he

also heard the defendant state that he was going to go home to get a gun and kill

everybody in the tavern. Mr. Speakman testified that he heard the defendant start the

truck engine, and he said that he told the defendant that he would not be at the tavern

before he walked back inside and told his wife that it was time to leave, and the two of

them left. He said that they did not drive in the direction the defendant went along Old

Clarksville Pike to get home but rather took another direction to pick up his motorcycle

at a friend’s house.




                                             4
                 Mr. Speakman also testified that the defendant did not have trouble

walking or being coordinated as he was playing pool. He stated that the defendant was

capable of hitting the ball. He said that the defendant did not have any trouble

speaking and his speech was not slurred. Mr. Speakman testified that he did not

believe the defendant was drunk. On cross-examination, Mr. Speakman admitted that

he also yelled at the defendant while outside the tavern. Mr. Speakman conceded that

he had been drinking since the start of the football game and estimated that he had

drunk seven or eight beers. He also testified that he did not believe that the defendant

was more intoxicated than Mr. Newland or Mr. Harris.



                 Kevin Williams testified that he had known the defendant for several years

before the night of the shooting, and he said that he and the defendant had arm

wrestled on previous occasions. He stated that there was nothing extraordinary about

the first arm wrestling match until the defendant accused him of cheating. Mr. Williams

testified that he offered to wrestle the defendant again, but before he could get in

position, the defendant grabbed his hand, slammed it on the bar, grabbed the money

that was bet on the match, and walked towards the door. Mr. Williams stated that he

then saw Jack Speakman wrestle the defendant to the floor, causing the money the

defendant was holding to fall to the floor. He said someone picked up the money and

handed it to him. Mr. Williams testified that the defendant left the tavern after he got up

off the floor.



                 Mr. Williams testified that about five to ten minutes after the defendant left

the tavern, he saw Mr. Speakman also walk outside. Mr. Williams said that shortly after

the defendant left, Keith Walter said something to him that made him feel that he

should leave and go home, although he decided to stay at the bar. He said that

approximately thirty to forty minutes after the defendant left the tavern, he saw the

tavern door fly open, a portion of a long gun come in, and Dan Newland falling to the



                                                5
floor after a shot was fired. Mr. Williams testified that he then went to the door, pushed

the door closed, and attempted to grab the portion of the gun barrel sticking through the

door. He said that the gun was wrestled from his grasp and a shot was fired through

the door, missing Williams but striking Dean Harris in the back. He stated that he then

told his wife to go out the back door and he quickly followed her out. Mr. Williams said

that he and his wife went to Mr. Speakman's house. Mr. Williams testified that he could

not identify the shooter because he only saw the shooter's arms and a portion of the

gun.



              Mr. Williams testified that the defendant did not have any trouble walking,

talking or moving around as they were arm wrestling. He also stated the defendant’s

speech was not slurred. On cross-examination, Mr. Williams conceded that on the

night of the offense, he had been drinking for several hours while at a Super Bowl party

and also at the tavern. He approximated that he had drunk nine beers. Mr. Williams

stated that he did not believe that he was intoxicated. He testified that no one was

“falling down drunk,” including the defendant.



              Martha Bryant, an employee of the Next Door Tavern, testified that she

lived next door to the tavern and that she was at the tavern on the night of the shooting,

although she was not scheduled to work that night. She said that as she was helping

an employee clean tables, she saw the defendant and Kevin Williams arm wrestling.

Ms. Bryant testified that she did not pay much attention to the arm wrestling match until

she saw Jack Speakman and the defendant on the floor surrounded by several people.

She said that she did not see anyone strike or hit the defendant. Ms. Bryant stated that

she heard the defendant, on his way out of the tavern, say that he was going to go get

a gun and kill everyone. She said that the defendant appeared mad and upset but that

she did not notice any injuries sustained by the defendant. Ms. Bryant testified that she




                                            6
did not take the defendant’s threat seriously, although she went home immediately after

the defendant left the tavern at approximately 10:30 p.m.



              Ms. Bryant testified that she returned to the tavern at approximately 11:15

p.m. She stated that she was dancing with Dan Newland when she saw a gun barrel

through the door, heard two gunshots and then saw Mr. Newland and Dean Harris fall

to the floor. She said that she was scared and told everybody to get down. Ms. Bryant

stated that she then checked on Mr. Newland and Mr. Harris and called 911. Ms.

Bryant testified she then saw the defendant holding “a long-barred gun . . ., like a

shotgun.” She also did not see Beverly Hunter, the defendant’s cousin, at the tavern

that night.



              Ms. Bryant testified that she believed that the defendant had been

drinking, but she said that the defendant was able to walk and that his speech was not

slurred. In Ms. Bryant’s opinion, the defendant did not at any time during the night of

the offense act in a way to make her believe that he was not aware of his surroundings

or not able to understand what was happening. On cross-examination, Ms. Bryant

conceded that she was not paying attention to everything that was going on because

there was a big crowd at the tavern that night.



              Rita Williams, Kevin Williams' wife, testified that at the time of the

shooting, she had known the defendant for five or six years. She said that she went to

the Next Door Tavern with her husband on the night of the shooting, and she stated

that while at the tavern, she briefly spoke to the defendant. Ms. Williams stated that the

defendant’s speech was not slurred and that he did not have any trouble talking. Ms.

Williams testified that she was not drinking on the night of the offense.




                                             7
             Ms. Williams testified that she was sitting two tables away from the

defendant and her husband when the arm wrestling match took place. She said that

she was not paying much attention to the match but that she recalled seeing Jack

Speakman throw the defendant to the floor and tell him to let go of the money. She

stated that both she and Pam, Mr. Speakman's wife, tried to calm Mr. Speakman so he

would release the defendant. Ms. Williams testified that after Mr. Speakman let go of

the defendant, the defendant left the tavern. She said that she did not notice any blood

or bruises on the defendant’s face. She also stated that she did not hear the defendant

say anything as he left.



              Ms. Williams testified that approximately forty-five minutes after the

defendant left, she saw the door to the tavern open and the defendant standing with a

shotgun. She said that she then heard a shot and saw Dan Newland fall to the floor.

She stated that she dropped to the floor and then heard a second shot. Ms. Williams

recalled seeing someone else fall to the floor. She testified that she then went out the

back door where she met her husband. Ms. Williams stated that she and her husband

then drove to Mr. Speakman's house and told him about the shooting.



              Ms. Williams testified that she saw the defendant drinking beer and

playing pool that night. In her opinion, the defendant did not appear to have trouble

standing up or playing pool. On cross-examination, Ms. Williams stated that she saw

blood on the defendant’s face when he returned to the tavern with the gun. She also

testified that the defendant was friends with both of the victims. She said that the

defendant opened the door and fired the shot, and she stated that the defendant was

looking at Mr. Newland when he shot the gun.



              Keith Walker testified that he had known the defendant for several years.

He said that he was at the Next Door Tavern on January 31, 1993, when the defendant



                                            8
and Mr. Williams were arm wrestling. Mr. Walker stated that he was shooting pool and

not paying attention to the arm wrestling. He said that he heard a commotion, turned

around, and saw Jack Speakman on top of the defendant. He testified that he saw

several people surrounding the pair, and he said that Mr. Speakman had to be pulled

off of the defendant. Mr. Walker stated that the defendant walked outside the tavern

and stated that he was going to get a gun and come back to the tavern.



              Mr. Walker testified that he followed the defendant to try to calm the

defendant. He said that Mr. Speakman followed him out of the tavern, keeping a little

distance behind him. He testified that he spoke to the defendant outside the tavern,

and the defendant stated a couple of times that he was going to get his gun and come

back and kill Mr. Speakman and Mr. Williams. Mr. Walker said that the defendant then

got inside his truck but continued to talk to him through the window. He recalled that

the defendant and Mr. Speakman exchanged words before the defendant drove away

in his truck. Mr. Walker also testified that the defendant did not appear to have any

trouble talking, walking, or driving his truck away from the tavern. He said that the

defendant lived approximately three miles away.



              Mr. Walker testified that after the defendant drove away, he went inside

the tavern and told Mr. Williams of the threat the defendant had made. Mr. W alker said

that although he tried to convince him to leave, Mr. Williams stayed at the tavern. Mr.

Walker said that approximately twenty to thirty minutes later, he heard a gunshot while

he was sitting at a pool table. He stated that he then saw the defendant standing in the

doorway with a shotgun. He said that the defendant had blood dripping down one side

of his face. Mr. Walker testified that the defendant then fired a second shot. He stated

that he went out the back door and around the building to look for the defendant. He

said that he saw the defendant near an outside corner of the tavern and that he tried to

calm the defendant. Mr. Walker testified that the defendant pointed the shotgun at him,



                                            9
but when the defendant's attention was disturbed by someone else, he grabbed the

shotgun from the defendant. Mr. Walker stated that the gun was a single-shot shotgun

and a single live shell was in the chamber.



             On cross-examination, Mr. Walker testified that after he took the shotgun

away from the defendant, the defendant told him that there was no reason for him to be

treated the way he had been treated in the tavern. Mr. Walker said that he interpreted

the defendant’s statement as meaning that the defendant should not have been

embarrassed in that manner.



             Herschell Jackson, a patron of the Next Door Tavern, testified that he was

an acquaintance of the defendant but that he also knew Kevin Williams and Jack

Speakman very well. He said that he observed the defendant and Mr. W illiams arm

wrestling from the other end of the bar. He said that he then saw several people

walking towards the door yelling at each other. He said that the defendant then left the

bar.



             Mr. Jackson testified that after about an hour, he heard what sounded like

someone kicking the door open and then a gunshot. He said that he looked towards

the door and saw the defendant standing there with a shotgun. Mr. Jackson stated that

he moved toward the door and tried to close it, but the defendant fired at least one

more shot through the door. He testified that after the shooting stopped, he saw Keith

Walker come through the back door of the tavern with a shotgun.



             Deputy Sheriff Roy Briscoe testified that he responded to a 911 call at

12:32 a.m. regarding an accident involving the defendant’s truck on the Old Clarksville

Highway approximately seven-tenths of a mile from the Next Door Tavern. He said that

it appeared that the defendant’s truck had run off the road, hit a barn, and turned end-



                                              10
over-end, landing in the yard of a residence. He stated that he did not observe any skid

marks. Deputy Briscoe stated that the driver of the truck was not at the scene and

there were no eyewitnesses to the accident. Deputy Briscoe testified that while

investigating the accident scene, he overheard a radio call to Metro Police to respond to

a shooting at the Next Door Tavern. He said that he later received information that the

defendant had been arrested in relation to the shooting, and he stated that he then

asked Metro Police to draw a blood sample from the defendant. Deputy Briscoe

testified that he believed that the defendant was driving under the influence of an

intoxicant because there were numerous alcoholic beverage containers inside and

outside the defendant’s truck.



                 Michael Hooper, an emergency medical technician, testified that at 12:47

a.m., he and his partner responded to a call regarding a shooting at the Next Door

Tavern. He said that as he was driving the ambulance down Clarksville Highway

looking for the tavern, he saw the defendant staggering in the middle of the highway.

He stated that when he asked the defendant what was wrong, the defendant said that

he had wrecked his truck. He stated that the defendant had cuts and blood on his face.

Mr. Hooper testified that he then saw another person approaching them, and by the

time they put the defendant in the back of the ambulance the other person had reached

the ambulance and told them about the shooting. Mr. Hooper said that they then went

to the tavern.



                 On cross-examination, Mr. Hooper explained that when he first saw the

defendant, the defendant was having a lot of difficulty walking and was not walking in a

straight line. He testified that the defendant's injuries were consistent with those that

would result from an automobile accident. After reviewing photographs of the

defendant’s wrecked truck, Mr. Hooper said that he would have expected the defendant

to have been killed or severely injured and would not have expected him to be able to



                                             11
get up and walk around. He also testified that the defendant appeared confused and

had a loss of equilibrium, although he did not know whether the defendant was

suffering from shock. He stated that he believed that the defendant “could certainly

understand” what the medical personnel were saying to the defendant. Mr. Hooper

explained that the the defendant’s difficulty in walking and talking could have been

caused by injuries sustained in the wreck or by being struck during a fight. He said that

he was unsure whether the defendant had experienced a loss of consciousness. Mr.

Hooper believed that the defendant was intoxicated.



              Officer William McCall of the Metro Police Department testified that he

responded to a call at 12:51 a.m and that he was the first officer to arrive at the Next

Door Tavern after the shooting. He said that he found the defendant in the back of the

ambulance. He stated that the medical personnel were trying to administer treatment to

the defendant, but the defendant was refusing treatment. Officer McCall explained that

the defendant tried to get up and leave on two different occasions. He stated that the

defendant told him that he had been in a fight. Officer McCall testified that the

defendant did not slur his speech but rather the defendant appeared coherent and

seemed to understand his questions. He said that the defendant smelled like alcohol,

although he did not believe the defendant was drunk. Officer McCall also identified the

single-action shotgun that Herschell Jackson gave to him during his investigation at the

tavern.



              Officer Christine Woods of the Metro Police Department was the second

officer to arrive at the Next Door Tavern after the shooting. She said that when she

asked the defendant whether he had shot anyone on two occasions, the defendant

responded each time by telling her that he had been involved in a wreck. She

interpreted the defendant’s statements as an indication that he did not want to talk

about the shooting. She testified that in her opinion, the defendant was intoxicated but



                                            12
not disorientated or confused. She said that the defendant seemed to understand what

was happening around him. Officer Woods conceded that she described the defendant

as being very intoxicated in her report.



              Officer Thomas Simpkins of the Metro Police Department identified

evidence found at the tavern. He said that he found two spent shotgun shells and one

live shell outside the tavern, and he found two shotgun shell waddings inside the tavern.




              Detective David Miller of the Metro Police Department assisted Detective

Al Gray in the investigation. He testified that on the night of the murder, he interviewed

the defendant at the hospital. Detective Miller said that the defendant appeared to

have been drinking, but that during the interview, the defendant did not slur his speech,

appeared coherent, and seemed capable of understanding what was going on around

him. He said that the defendant gave specific answers to his questions. He testified

that the defendant told him during the interview that he had been in a fight after an arm

wrestling match and that he was trying to get away when he wrecked his truck.

Detective Miller said that he requested that a blood sample be drawn from the

defendant after receiving a request from Deputy Briscoe for purposes of Briscoe’s

investigation of the defendant for driving under the influence.



              Detective Alfred Gray, III, of the Metro Police Department testified that he

interviewed the defendant at approximately 4:00 a.m., three to three and a half hours

after the shooting. He said that the defendant appeared to understand when he read

him his constitutional rights. He also said that the defendant did not appear to be

intoxicated. He said that he learned during his investigation that the defendant had

obtained the shotgun from his home. Detective Gray testified that he investigated the




                                            13
loss of the defendant’s blood sample but was not able to determine what happened to

the sample.



              Dr. Edmund Rutherford, the trauma surgeon that treated Gary Dean

Harris, testified that a shotgun wound can be life threatening if made at close range,

even if the shotgun pellets traveled through a door. He also testified that despite Mr.

Harris' blood alcohol content being .286 the night of the shooting, he found that Harris

was alert and coherent. He said that the degree of impairment for a specific blood

alcohol content would be greater for persons who did not chronically use alcohol.



              Dr. Julia Goodin, the Davidson County Medical Examiner, testified that

Dan Newland received one shotgun wound injury to the left arm and upper chest and

that the wounds resulted in his death. She testified that the shotgun was fired from a

distance of between eight to twenty feet. Dr. Goodin also testified that Dan Newland

had a blood alcohol content of .31.



              The defendant's first witness was Beverly Hunter, the defendant's cousin.

She testified that she, the defendant, Gary Dean Harris, and one other person were at

the VFW drinking the afternoon before the shooting. She testified that she believed

that the defendant was drunk because he spilled his drink at the VFW. She said that

after two or three hours of drinking they went to another bar for about an hour. She

said that they then went to the Next Door Tavern. Ms. Hunter testified that she was

using the pay telephone on the outside wall near the Next Door Tavern door when she

saw the defendant leave the tavern followed by Jack Speakman and another person.

On cross-examination, she testified that she did not notice any arguing or yelling

between the defendant and anyone else. Ms. Hunter conceded that she drank a lot

that night. She described the defendant as being drunk, but not “falling down drunk.”




                                           14
She said that the defendant was coherent, was able to carry on a conversation, and did

not stumble or fall.



              The defendant's second witness was William King, owner of the house

where the defendant wrecked his truck. He testified that he noticed a small truck in his

yard on the night of the offense. He said that he looked for an injured driver, found

none, and went inside to call the sheriff.



                                I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is not sufficient to support his

conviction for felony murder. 1 He asserts that the evidence, at most, can only support a

conviction for voluntary manslaughter. The defendant argues that there was no

evidence to establish deliberation or premeditation as required for the underlying felony

of attempted first degree murder. Rather, the defendant argues that the evidence

instead showed that the killing was committed in a state of passion produced by

adequate provocation because he was intoxicated, had been involved in a fight, and

had been involved in an automobile accident. The state responds that the evidence is

sufficient. We agree.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.


              1
                  The defe nda nt co nce des that th e evid enc e is su fficie nt to s upp ort his aggr avate d ass ault
conviction.

                                                         15
1978). Under this standard, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn from it. Cabbage, 571

S.W.2d at 835. That is, the testimony favoring the state is accredited and all conflicts

are resolved in favor of the state's theory. See State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).



              In the light most favorable to the state, the evidence shows that the

defendant was arm wrestling with Kevin Williams when he became angry and accused

Williams of cheating after the defendant lost the first match. The defendant then

slammed Williams’ hand on the table, grabbed the money which was bet on the match,

and started to walk away. Jack Speakman then grabbed the defendant, and they fell to

the floor. Once Speakman released the defendant, the defendant walked out of the

tavern, threatening to get a gun and return to kill everyone in the bar. After walking out

of the tavern, the defendant told Keith Walker a couple of times that he was going to

get a gun and kill Speakman and Williams. Speakman yelled at the defendant, and the

defendant cursed and yelled at Speakman that he would be back to kill him. The

defendant then drove home and got his shotgun, but he wrecked his truck as he

returned to the tavern. The defendant then got out of his truck, taking his shotgun and

walking approximately seven-tenths of a mile to the tavern.



              When the defendant returned to the tavern about twenty to thirty minutes

after initially leaving, the defendant kicked open the tavern door and fired once into the

tavern, shooting and killing Dan Newland. The defendant then removed the empty

shell, placed another live shell in the chamber, and fired a second time through the

tavern door. From this evidence, the jury was entitled to conclude that the defendant

recklessly killed Newland while acting with premeditation and deliberation in attempting

to kill Williams, carrying out his actions with a cool purpose. See T.C.A. § 39-13-

201(b)(1)-(2) (1991). We believe that this evidence establishes beyond a reasonable



                                            16
doubt that the defendant recklessly killed Dan Newland during the attempted murder of

Williams. See T.C.A. § 39-13-202(a)(2) (1991).



               II. FAILURE TO PRESERVE EXCULPATORY EVIDENCE

              The defendant contends that the trial court erred by denying his motion to

dismiss the indictment because the state failed to preserve a blood sample taken from

him on the evening of the shooting. The defendant asserts that the state’s suppression

of the evidence violated his due process rights under Brady v. Maryland, 373 U.S. 83,

87, 83 S. Ct. 1194, 1196-97 (1963). He argues that he was precluded from offering

scientific evidence that would have most likely established that he was intoxicated at

the time of the offense. The defendant concedes that the proof does not show that the

state deliberately destroyed the blood sample. However, he argues that good or bad

faith on the part of the state is irrelevant under Brady because the blood sample

constitutes exculpatory evidence in that it would be relevant to negate the culpable

mental state required for the underlying felony of first degree murder, a specific intent

crime. See T.C.A. § 39-11-503(a). The defendant complains that had the defendant

had access to the blood sample at trial, the jury would have returned a verdict of

voluntary manslaughter or, at most, second degree murder.



              In response, the state contends that the trial court properly denied the

defendant’s motion to dismiss. It argues that the defendant has failed to establish

either that the evidence was exculpatory or that the state acted in bad faith, citing

Arizona v. Youngblood, 488 U.S. 55, 57-58, 109 S. Ct. 333, 337 (1988). The state

concedes that evidence of the defendant’s intoxication would have been relevant to

negate the specific intent required for the charges of first degree premeditated and

deliberate murder and aggravated assault and for attempted first degree murder, the

underlying felony for the felony murder charge. However, the state asserts that the

evidence is not exculpatory because the blood sample would have, at best, shown that



                                            17
the defendant’s blood alcohol level was above the legal limit, and such evidence would

not have negated the requisite culpable mental state required for the specific intent

crimes for which the defendant was charged because proof of intoxication alone is not a

defense to a specific intent crime. The state argues that proving the blood alcohol level

of the defendant at the time of the killing would not be sufficient to negate the requisite

specific intent absent evidence that the defendant’s intoxication deprived him of the

mental capacity to form the specific intent required for the offenses charged.



              Before trial, the defendant filed a motion to dismiss the indictment for the

failure to preserve material evidence. At a hearing on the defendant’s motion,

Detective Miller from the Metro Police Department testified that on February 1, 1993,

Deputy Briscoe asked that Miller have a blood sample drawn from the defendant.

Detective Miller said that drawing blood was not normally done in homicide cases but

that Deputy Briscoe needed a blood sample for his investigation of the defendant for

driving under the influence with respect to the truck accident. After he received the

blood sample from the hospital, Detective Miller said that he gave the sample to

Detective Gray who was in charge of investigating the shooting. Detective Gray

testified that he did not remember receiving the blood sample from Detective Miller but

that he remembered finding the blood sample in the homicide section refrigerator and

taking it down to the property room in July 1993.



              Officer Joy Moore of the Metro Police Department Property Room testified

as to the handling of blood samples. She testified that according to her records a blood

alcohol kit containing the defendant's blood sample was delivered to the property room

on July 14, 1993, by Detective Gray. She said that her records show that the blood

sample was logged in, and she stated that the normal procedure would be to place the

sample in the cooler until it could be transported to the T.B.I. Crime Laboratory. Officer




                                            18
Moore testified that her records show that she transported the defendant's blood

sample to the T.B.I. lab on July 27, 1993, and gave it to Mildred Krice at the crime lab.



              Mildred Krice, an evidence technician at the T.B.I. Crime Laboratory,

testified that her records show that the lab never received the defendant's blood

sample. She said that samples are delivered in a sealed box with an evidence

submittal form inside the sealed box. She stated that when she receives a blood

sample, she opens the sealed box, verifies that the blood sample is identified as shown

on the evidence submittal form, enters the data into the computer, and finally attaches

a T.B.I. Crime Laboratory label to the sample. She said that if the form is missing or the

sample identification does not match the form information her procedure is to notify the

delivering agency so that they can correct it.



              Terry Fields of the T.B.I. Forensic Division testified that blood alcohol

analysis is generally conducted in approximately one week from its arrival at the lab.

He said that blood samples that have been through the proper chain of custody

requirements may be tested and render accurate results quite a long time, possibly

years, after the blood sample is taken. He stated that informal studies have shown that

accurate results are achieved even when testing a blood sample that has been opened

three or four times approximately four to six months after testing. On cross-

examination, Mr. Fields conceded that a person’s intoxication level alone does not

determine whether he or she is able to function or think clearly or is able to form the

intent required to commit murder.



              At the conclusion of the hearing on the defendant’s motion to dismiss the

indictment, the trial court denied the motion. The trial court ruled that the state did not

act in bad faith but rather the state’s loss of the blood sample was a result of

carelessness.



                                             19
              In Brady, the United States Supreme Court held that the prosecution has

a compelling duty to furnish the accused any evidence that is favorable to the accused

and material to his guilt or punishment. 373 U.S. at 87, 83 S. Ct. at 1196-97; see also

State v. Marshall, 845 S.W.2d 228, 232 (Tenn. Crim. App. 1992). The Court ruled that

good faith or bad faith on the part of the state is irrelevant when the state fails to

disclose to the defendant materially exculpatory evidence. Brady, 373 U.S. at 87, 83 S.

Ct. at 1196-97. Evidence is material “only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383

(1985). The Supreme Court further stated that the

              touchstone of materiality is a “reasonable probability” of a
              different result, and the adjective is important. The question is
              not whether the defendant would more likely than not have
              received a different verdict with the evidence, but whether in its
              absence he received a fair trial, understood as a trial resulting
              in a verdict worthy of confidence. A “reasonable probability” of
              a different result is accordingly shown when the Government’s
              evidentiary suppression “undermines confidence in the
              outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566 (1995) (citations omitted);

see also State v. Edgin, 902 S.W.2d 387, 390-91 (Tenn. 1995).



              Initially, we note that the blood sample does not constitute materially

exculpatory evidence under Brady. Rather, the evidence merely “could have been

subjected to tests, the results of which might have exonerated the defendant.” See

Youngblood, 488 U.S. 51, 57, 109 S. Ct. at 337. The defendant’s argument that he

was prevented from presenting “scientific evidence that would have, in all likelihood,

established that he was . . . intoxicated at the time of the offense” essentially concedes

that the exculpatory nature of the blood sample is unknown. (Emphasis added). We

believe that the blood sample falls within the class of “potentially exculpatory evidence”

as set forth in Youngblood. See id.




                                             20
                 In Youngblood, the Supreme Court held that the failure of the prosecution

to preserve evidence which is potentially useful to the defendant may constitute a

denial of due process of law, if the defendant can show bad faith on the part of the

police. 488 U.S. at 58, 109 S. Ct. at 337. In a concurring opinion, Justice Stevens

questioned such a broad statement regarding bad faith, indicating that even if a

defendant cannot prove bad faith, there may be cases in which the loss or destruction

of evidence is so critical as to make further prosecution fundamentally unfair. 488 U.S.

at 61, 109 S. Ct. at 339. In a dissenting opinion authored by Justice Blackmun, three

members of the Court stated that reliance upon a good faith/bad faith standard as

dispositive was inappropriate and opted to focus the inquiry on the materiality of the

evidence, its potential to exculpate, and the existence of other evidence on the same

point of contention. 488 U.S. at 67-70, 109 S. Ct. 343-43.



                  This court has followed the majority opinion in Youngblood. State v.

Eldridge, 951 S.W.2d 775, 778 (Tenn. Crim. App. 1997); State v. Jefferson, 938

S.W.2d 1, 16 (Tenn. Crim. App. 1996); Robert Lloyd Wiggins v. State, No. 03C01-9605-

CC-00191, McMinn County, slip op. at 31 (Tenn. Crim. App. Mar. 20, 1997), app.

denied (Tenn. Sept. 29, 1997); State v. Jerry Douglas Franklin, No. 01C01-9510-CR-

00348, Davidson County, slip op. at 8 (Tenn. Crim. App. Feb. 28, 1997), app. denied

(Tenn. Nov. 17, 1997); but see Stave v. Marvin K. Ferguson, No. 03C01-9406-CR-

00235, Washington County (Tenn. Crim. App. July 17, 1997), applic. filed (Tenn. Aug.

3, 1997) (in separate opinions, majority of panel indicate that Youngblood majority

opinion does not meet all due process concerns under the state constitution).2 Under

Youngblood, the defendant is not entitled to relief. He concedes that the record does

not reflect that the state deliberately destroyed the blood sample, and we believe that

the record supports the trial court’s conclusion that the state acted carelessly, and not


                 2
                     We note that the majority of the states that have considered Youngblood in
relation to the ir state con stitutions ha ve rejec ted the m ajority opinion. See, e.g., State v. Morales,
657 A.2d 585, 594-95 (Conn. 1995) (listing states and noting that only Arizona and California had,
at that time, agreed with Youngblood).

                                                        21
in bad faith. Thus, we conclude that the state’s failure to preserve the blood sample did

not violate the defendant’s due process rights.



                             III. VINDICTIVE PROSECUTION

              The defendant contends that his felony murder conviction should be set

aside because the conviction was obtained in violation of his due process rights by

retrying him under a theory of first degree murder that was not asserted in his first trial

that resulted in a mistrial. He argues that retrial upon the same facts presented in the

first trial but under a different legal theory was patently and fundamentally unfair.

Though he concedes that a retrial itself does not violate traditional notions of fairness,

see Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 830 (1978), the

defendant argues that it was fundamentally unfair for the state to benefit from the

defendant having successfully defended himself in the first trial. The defendant also

asserts that his felony murder conviction must be set aside because the trial court in the

first trial properly determined that the state had not sufficiently proven an element

essential to the defendant’s conviction for felony murder on retrial as evidenced by the

trial court’s refusal to instruct the jury on transferred intent. The state responds that the

trial court properly denied the defendant’s motion to dismiss because the defendant’s

due process rights were not violated. The state argues that not only was it permitted to

retry the defendant for first degree murder, but it was also allowed to rely upon a

different theory upon retrial.



              The defendant was first indicted on April 27, 1993. A three-count

indictment charged the defendant with the first degree premeditated and deliberate

murder of Danny Newland, the attempted first degree premeditated and deliberate

murder of Gary Harris, and the aggravated assault of Gary Harris. A trial was

conducted, resulting in a mistrial. A second indictment was obtained on December 7,

1993, purporting to charge the defendant in separate counts with first degree



                                             22
premeditated and deliberate murder and felony murder during the perpetration or

attempted perpetration of assault with intent to commit murder. The third count of the

indictment charged the defendant with attempted first degree murder of Harris.



              Before trial, the defendant filed a motion to dismiss the felony murder

count of the indictment because it violated his due process rights. A hearing was held

on the motion. At the hearing, Billy Harrell, the foreperson of the defendant’s first trial

that resulted in a mistrial, testified that the jurors could not decide between second

degree murder and voluntary manslaughter. He said that ten of the jurors voted for

second degree murder, one voted for voluntary manslaughter, and one was undecided.



              At the conclusion of the hearing, the defendant argued that a dismissal

was required because the trial court had ruled at the first trial that there was insufficient

evidence to instruct on transferred intent and thus it would be unfair to require the

defendant to defend against felony murder in the perpetration of an attempted first

degree murder on retrial. After hearing argument by counsel, the trial court stated that

it recalled that there was not much disagreement at the first trial that the evidence did

not support transferred intent because Speakman was not present in the tavern when

the shooting took place. The trial court held that its earlier decision denying a

transferred intent instruction had no bearing on the trial court’s decision regarding

felony murder, stating that transferred intent applied to intentional killings but not to

felony murder. Ultimately, the trial court denied the defendant’s motion, ruling that the

defendant’s due process rights were not violated and the state was not foreclosed from

pursuing a felony murder theory on retrial. However, the trial court dismissed the felony

murder count, holding that it was defective because assault with intent to commit

murder is not listed as an underlying felony for felony murder.




                                             23
               The defendant was indicted again on January 14, 1994. The indictment

alleged in separate counts (1) first degree premeditated and deliberate murder, (2) first

degree felony murder during the perpetration of an attempted first degree murder, (3)

attempted first degree premeditated and deliberate murder, and (4) aggravated assault.

The defendant was tried and convicted of the offenses of felony murder and aggravated

assault.



                In support of his argument, the defendant relies upon State v. Carter, 890

S.W.2d 449 (Tenn. Crim. App. 1994). In Carter, this court held that fundamental

fairness bars the state from asserting on retrial aggravating factors not relied upon by

the state at the first trial. Id. at 454. However, the Tennessee Supreme Court held to

the contrary in State v. Harris, 919 S.W.2d 323, 330 (Tenn. 1996) (“the State is free, at

resentencing to introduce proof of any aggravating circumstance which is otherwise

legally valid.”).



               The defendant cites North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. at

2972 (1977), in support of his argument. In Pearce, the United States Supreme Court

concluded that the defendant’s due process rights were violated when the government

retried the defendant for charges that had been successfully appealed and the trial

court imposed greater sentences without providing reasons for the enhancement. Id. at

726, 89 S. Ct. at 2081. The Court stated that a trial court must set forth its reasons for

imposing a more severe sentence to insure that vindictiveness does not deter a

defendant from exercising his right to appeal. Id. at 725-26, 89 S. Ct. at 2080-81. The

defendant also likens his case to United States v. Lee, 435 F. Supp. 974 (E.D. Tenn.

1976). In Lee, a federal district court held that the defendant’s due process rights were

violated by being retried for greater felony charges when the defendant had

successfully appealed misdemeanor convictions relating to the same criminal conduct

and the government had not shown either that it was impossible to proceed on the



                                             24
more serious charges at the first trial or that the government did not learn of the new

evidence through no fault of its own. Id. at 978-79. Although the defendant concedes

that felony murder is not a greater charge, he argues that the reasoning in Lee applies

nonetheless. We disagree.



               In this case, the defendant was not subjected to a greater sentence on

retrial nor was he charged with a greater offense. Our criminal code prohibits the

offense of first degree murder, although it lists several means by which the offense may

be committed. See T.C.A. § 39-13-202 (1991). Regardless of which theory is relied

upon by the state, the offense committed by the defendant is the same, first degree

murder. See State v. Hurley, 876 S.W.2d 57, 59-60 (Tenn. 1993). Thus, the fact that

the state changed its theory of how the defendant committed the offense does not

indicate any vindictiveness or retaliation for the defendant’s exercise of constitutional or

statutory rights, particularly when the state notified him by the indictment as to the

change.



               As for the defendant’s claim that implicit in the trial court’s refusal to

instruct on transferred intent in the first trial is that the trial court found that the state

failed to prove that the defendant intended to kill someone other than Newland, we

disagree. We note that the record on appeal does not include a transcript of the

proceedings that took place at the first trial. It is the duty of the appealing party to

prepare a fair, accurate and complete record on appeal to enable meaningful appellate

review. T.R.A.P. 24(b). When necessary parts of the record are not included, we

presume that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d 554, 559

(Tenn. Crim. App. 1991).



               In any event, the defendant is not entitled to relief. The record before us

does not reflect that the defendant was acquitted of the charges of first degree murder.



                                                25
To the contrary, the evidence shows that the first trial resulted in a mistrial. Also, we do

not believe that the trial court intended that its ruling on the state’s request for an

instruction on transferred intent be considered an acquittal or a determination that the

state had failed to establish the elements of the offense of first degree premeditated

and deliberate murder. Therefore, we hold that retrying the defendant upon a felony

murder theory of first degree murder was not fundamentally unfair and did not violate

the defendant’s due process rights.



                                           IV. BATSON CLAIM

                 Finally, the defendant contends that his constitutional rights were violated

when the state exercised a peremptory challenge against the only black potential juror

questioned during voir dire. He argues that he established a prima facie case of racial

discrimination and that the state failed to prove a racially-neutral reason for challenging

the juror. The state counters that the defendant failed to establish a prima facie case of

racial discrimination because striking the only black person questioned on voir dire is

not sufficient to raise the inference of purposeful discrimination. The state also

contends that it did provide a race-neutral reason for the challenge.



                          The record3 reflects that Kenneth Gregory, a prospective juror, was

questioned during voir dire regarding his occupation, marital status, whether he knew

anyone who had been a victim of crime or who had a problem with alcohol at work. Mr.

Gregory stated that he had seen how alcohol affects a person’s mental state and how it

can cause a person to do something that he would not have expected. He said that he

could be fair and follow the trial court’s instructions. After the voir dire of the jury, Mr.

Gregory was excused by the trial court upon the state’s challenge. A hearing was then

conducted in the trial court’s chambers, and the defendant objected to the removal of

Mr. Gregory:


                 3
                   The re cord inc ludes on ly the transcr ibed portion of the voir dire of Kenn eth Gre gory, a
prospe ctive juror. T he defe ndant did not requ est that the entire voir dire procee dings be transcrib ed.

                                                        26
                     [DEFENSE COUNSEL]: I would make a Batson Motion
             concerning the juror the State has struck, Kenneth Gregory.
             I don't feel that there was any basis for striking this juror. He
             is an African American male. I don't feel that there is any basis
             to excuse him. He is single, and has worked ten years for
             Kroger's and that sort of thing. I don't believe that he gave any
             answers to require that the State strike him. He is the only
             black seated on the Jury at this time.

                    COURT: [Prosecutor], do you care to respond to that?

                     PROSECUTOR: Well, Judge, I understand that, first of
             all, that the defendant is white. I don't think that the State
             striking one black male makes this a basis for a Batson Motion.
             At the time Mr. Gregory was excused, Mr. Dotson, a white
             male was also excused. On the basis of that, I don't believe
             that he can raise a Batson issue. I don't believe that excusing
             one black juror shows a pattern. The reason I challenged Mr.
             Gregory was because I felt like he was making faces at some
             of the questions we were asking. There was just something
             about his body language that made me feel very
             uncomfortable. I just felt like he was not taking this seriously.
             I just got a feeling about him, and that's the reason I
             challenged him, not because he is black.

                     COURT: [Defense Counsel], I will note that Mr. Gregory
             is not the only black juror on this panel of prospective jurors
             that are here. I will accept [the prosecutor's] response as to
             why he challenged this juror. You challenged a white juror. I
             don't believe there was any racial basis for his excusing this
             juror, so I will overrule you objection.


             In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), the United

States Supreme Court held that a state’s use of peremptory challenges to intentionally

exclude jurors of the defendant’s race violates the defendant’s Fourteenth Amendment

right to equal protection. The Court upheld this principle in Powers v. Ohio, 499 U.S.

400, 111 S. Ct. 1364 (1991), but eliminated the requirement that the defendant and the

potential juror share the same race. The Court held that race was “irrelevant to a

defendant’s standing to object to the discriminatory use of peremptory challenges.” Id.

at 416, 111 S. Ct. at 1373.



             A defendant seeking to raise a Batson claim has the initial burden of

making a prima facie showing of purposeful discrimination against a prospective juror.

Batson 476 U.S. at 93-94, 106 S. Ct. at 1721; State v. Ellison, 841 S.W.2d 824, 826


                                            27
(Tenn. 1992). Our supreme court recently reiterated the guidelines set forth in Batson

for making out a prima facie case of purposeful discrimination:

              Defendant “may make out a prima facie case by showing that
              the totality of the relevant facts gives rise to an inference of
              discriminatory purpose.” This showing may include proof of
              systematic exclusion, substantial underrepresentation on the
              venire, or the selection methods and results solely in the
              present case. As to the purposeful requirement, defendant is
              entitled to rely on the nature of the peremptory challenge --that
              it permits “‘those to discriminate who are of a mind to
              discriminate.’” In the end, defendant must establish that a
              consideration of all the relevant circumstances raises an
              inference of purposeful discrimination.

Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 902-03 (Tenn. 1996)

(citations omitted). Standing alone, the fact that the state challenged the only potential

black juror on the panel does not establish a prima facie showing of purposeful

discrimination. State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995).



              Once the defendant establishes a prima facie showing of purposeful

discrimination, the burden shifts to the state to articulate a racially-neutral reason for the

challenge. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. The state’s explanation “must

be based on more than stereotypical assumptions, but it need not rise to the level

required to justify the exercise of a challenge for cause.“ State v. Ellison 841 S.W.2d

824, 826 (Tenn. 1992); Batson, 476 U.S. at 97, 106 S. Ct. at 1723.



              In ruling on an objection to the discriminatory use of a peremptory

challenge, the trial court is obligated to articulate specific reasons for each of its factual

findings. Woodson, 916 S.W.2d at 906. First, the court should explain why the

objecting party has or has not established a prima facie showing of purposeful

discrimination. Then, if the defendant has made a prima facie showing, the court must

determine whether the state gave a race-neutral explanation for the challenge and

whether it finds, based on the totality of the circumstances, that the challenge was the

result of purposeful discrimination. Id. “The trial court’s factual findings are imperative



                                              28
in this context. On appeal, the trial court’s findings are to be accorded great deference

and not set aside unless clearly erroneous.” Id.



             In this case, the trial court did not explicitly state whether the defendant

made a prima facie showing of discrimination. Based on the scant record before us, we

cannot tell whether the defendant met this initial burden. When faced with a similarly

cryptic record in Woodson, our supreme court concluded that the trial court had found

that the objecting party made a prima facie showing of purposeful discrimination. The

court reasoned that if the objecting party had not made a prima facie showing, then the

trial court would not have required an explanation for the challenge.



             In any event, the trial court in this case concluded that the state did not

challenge the prospective juror based on his race. The court accredited the prosecuting

attorney’s response that he challenged the juror based on the juror’s body language

and based on the prosecuting attorney’s perception that the juror was not taking voir

dire seriously. Based on the record before us, we cannot say that this finding is clearly

erroneous.



             In consideration of the foregoing and the record as a whole, we affirm the

trial court's judgment of conviction for first degree murder and for aggravated assault.



                                                 ______________________________
                                                 Joseph M. Tipton, Judge




                                            29
CONCUR:



__________________________
David G. Hayes, Judge


__________________________
Jerry Scott, Special Judge




                             30
