         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON          FILED
                       JUNE 1997 SESSION         July 23, 1997

                                              Cecil Crowson, Jr.
                                              Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )    NO. 02C01-9612-CR-00455
      Appellee,                )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. CHRIS CRAFT, JUDGE
DARRYL S. WILKS,               )
                               )    (Attempted Voluntary Manslaughter)
      Appellant.               )



FOR THE APPELLANT:                  FOR THE APPELLEE:

THOMAS E. HANSOM                    JOHN KNOX WALKUP
659 Freeman                         Attorney General and Reporter
Memphis, TN 38122
                                    ELIZABETH T. RYAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    JAMES M. LAMMEY
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN 38103




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, Darryl S. Wilks, was convicted by a Shelby County jury of

attempted voluntary manslaughter. On appeal, he challenges the verdict as being

contrary to the law and the evidence presented. He further contends that the trial

court’s curative instructions in response to a prosecution witness’ statement were

prejudicial. We find no error and affirm the judgment of the trial court.



                                      FACTS



       The state’s proof at trial showed that on March 13, 1994, Prescilla Davis and

her brother, Patrick Davis, were packing Ms. Davis’ belongings at the home of the

defendant. Ms. Davis had been living with the defendant for approximately five

years and was moving out of the home. After they had finished packing, Ms. Davis

and Mr. Davis left the defendant’s house.

       On their way home, Ms. Davis could not find her purse. She called the

defendant to ask him to look for the purse. When he could not find it, she asked if

they could come back to his house to look for it. After she unsuccessfully searched

the house, she asked the defendant if he had seen the purse. The defendant

denied having seen the purse and accused Ms. Davis of wearing another man’s

jacket. At this point, the defendant threatened Ms. Davis and Mr. Davis and told

them to get out of his house.

       As he and his sister were leaving, Mr. Davis noticed that the defendant had

picked up a gun. Mr. Davis turned around to say something to the defendant, and

the defendant hit him in the mouth. The defendant followed Ms. Davis outside and

pointed the gun at her. Ms. Davis turned to run away, and the defendant shot her

in the shoulder. Mr. Davis then tried to grab the defendant to prevent him from

shooting his sister again, and the defendant shot him in both arms. At this time, Ms.

Davis was lying on her back, and the defendant stood over her and shot her again

in the chest. As Mr. Davis and Ms. Davis ran across the street to get away from the



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defendant, Ms. Davis heard another shot.

       The defendant testified on his own behalf. He stated that Ms. Davis and her

brother returned to his house unexpectedly. Because he was a former undercover

narcotics officer, he frequently answered the door carrying a firearm at his side

when he was not expecting anyone. After Ms. Davis accused him of taking her

purse, he asked both of them to leave. Mr. Davis and the defendant started

fighting, and the gun fell down the defendant’s pants. As the defendant was

reaching for the weapon, Mr. Davis grabbed the gun. Mr. Davis and the defendant

struggled, and the gun fired several times, hitting Mr. Davis and Ms. Davis. The

defendant then went inside to call an ambulance.

       The defendant was indicted on two (2) counts of attempted first degree

murder. However, the jury found him guilty of the lesser included offense of

attempted voluntary manslaughter of Ms. Davis. The jury found him not guilty of the

attempted homicide of Mr. Davis.



                        SUFFICIENCY OF THE EVIDENCE



       Defendant argues that the guilty verdict was contrary to the law and the

evidence presented. Specifically, he claims that the verdicts were inconsistent and

represented a “compromise verdict.” Therefore, he claims that no rational trier of

fact could arrive at this verdict without a “total disregard for the law.”

       The defendant insists that the verdicts were inconsistent and represented a

compromise by the jury. There is no requirement of consistency in a jury verdict.

Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe, 851 S.W.2d

833, 836 (Tenn. Crim. App. 1992); State v. Hicks, 835 S.W.2d 32, 36 (Tenn. Crim.

App. 1992). An acquittal on one count of an indictment cannot be considered res

judicata to another count even though both counts stem from the same criminal

transaction. Wiggins, 498 S.W.2d at 94; Gennoe, 851 S.W.2d at 836; State v.

Bloodsaw, 746 S.W.2d 722, 726 (Tenn. Crim. App. 1987). “This Court will not upset

a seemingly inconsistent verdict by speculating as to the jury’s reasoning if we are



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satisfied that the evidence establishes guilt of the offense upon which the conviction

was returned.” Wiggins, 498 S.W.2d at 94. Therefore, the only issue is whether the

evidence is sufficient to sustain the verdict of guilt of attempted voluntary

manslaughter of Ms. Davis.

       This court will not disturb a verdict of guilt due to the sufficiency of the

evidence unless the defendant demonstrates that the facts contained in the record

and the inferences which may be drawn therefrom are insufficient, as a matter of

law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt.

State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). It is the appellate

court's duty to affirm the conviction if the evidence was sufficient for any rational

trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,

99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994).

       We need not speculate as to the jury’s acquittal on the attempted murder of

Mr. Davis while finding the defendant guilty of attempted voluntary manslaughter of

Ms. Davis. However, we do find sufficient evidence in the record for a rational trier

of fact to conclude that the defendant attempted to kill Ms. Davis while he was in a

state of passion.1 This issue is without merit.



                TRIAL COURT’S CAUTIONARY INSTRUCTIONS



       In his final assignment of error, defendant alleges that the trial court

improperly commented on the evidence when the court made cautionary remarks

to the jury in response to a statement made by Ms. Davis. When asked by the

prosecutor if she told the defendant where she would be living, Ms. Davis

responded that she was “scared to tell him where [she] was going to be staying.”

After an objection by the defense, the trial court instructed the jury and Ms. Davis



       1
       The jury might well have found adequate provocation due to the argument between
Ms. Davis and the defendant.

                                          4
as follows:

       THE COURT: Ladies and gentlemen, this witness said something
       about, I was afraid to tell him where I lived. And let me tell you that
       that has absolutely nothing to do with this case.

             And I will tell you now, ma’am, that if you mention anything
       about being afraid of him or this or that again, I can find you in
       contempt of court and send you to jail for 10 days.

       THE WITNESS: Yes, sir.

       THE COURT: You are not to mention anything about being afraid.
       You’re not to try to do anything like that. We’re interested in what
       happened on this date of March 13, 1994. We’re not interested in
       anything that may happen in the future or in the past or what she
       thinks might happen or might not happen; it’s just what happened.

               So I’m going to ask you to completely disregard any kind of
       thing in her mind about whether or not she wanted this man to tell her
       to live [sic] because that’s not proof in this case. Can y’all do that?
       All right. Thank you.

       Subsequently, the defendant made a motion for a mistrial as a result of these

remarks. The trial court denied his motion.

       The defendant claims that this instruction to the jury might have inadvertently

emphasized Ms. Davis’ testimony. He argues that when the trial court admonished

the witness, this might have evoked sympathy in the minds of the jury for the victim,

Ms. Davis.

       Initially, we find nothing inappropriate about the trial court’s comments to the

jury and the witness. Secondly, there is no evidence in the record to support the

allegation that these comments prejudiced the defendant in any way. The trial court

asked that the jury disregard Ms. Davis’ statement. The jury is presumed to have

followed the trial court’s curative instructions, absent evidence to the contrary. State

v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); State v. Williams, 929 S.W.2d 385,

388 (Tenn. Crim. App. 1996); State v. Melvin, 913 S.W.2d 195, 201 (Tenn. Crim.

App. 1995).



       Furthermore, the trial court did not err in denying the defendant’s motion for

a mistrial. The decision to grant a mistrial lies within the discretion of the trial court

and will not be disturbed on appeal unless the trial court abuses this discretion.

State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). The trial court did not abuse

                                            5
its discretion in denying the motion for a mistrial. This issue has no merit.



                                  CONCLUSION



       We conclude that the evidence presented is sufficient for a reasonable trier

of fact to find the defendant guilty of attempted voluntary manslaughter.

Additionally, the trial court’s curative comments to the jury were not improper nor

prejudicial. Accordingly, the judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE




CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID H. WELLES, JUDGE




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