                                                     FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                              August 31, 1999
                               AT KNOXVILLE
                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt
                           MAY 1999 SESSION                      Clerk




STATE OF TENNESSEE,                 )
                                    )
             Appellee,              )      C.C.A. No. 03C01-9802-CR-00076
                                    )
vs.                                 )      Hamilton County
                                    )
HARRISON PEARSON,                   )      Hon. Stephen M. Bevil, Judge
                                    )
             Appellant.             )      (Aggravated Arson)



FOR THE APPELLANT:                         FOR THE APPELLEE:

ARDENA J. GARTH                            PAUL G. SUMMERS
District Public Defender                   Attorney General & Reporter

KARLA G. GOTHARD (at trial)                ELLEN H. POLLACK
Assistant Public Defender                  Assistant Attorney General
701 Cherry Street, Suite 300               425 Fifth Ave. N., 2d Floor
Chattanooga, TN 37402-1910                 Nashville, TN 37243-0493

EDWARD T. LANDIS (at sentencing and        WILLIAM H. COX III
Attorney at Law          on appeal)        District Attorney General
744 McCallie Avenue, Suite 327
Chattanooga, TN 37403                      JOHN W. MILLICAN and
                                           DAVID W. DENNY
                                           Asst. District Attorneys General
                                           600 Market Street, Suite 310
                                           Chattanooga, TN 37402




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                                 OPINION
              The defendant, Harrison Pearson, appeals from his jury conviction in

the Hamilton County Criminal Court for aggravated arson, a Class A felony. See

Tenn. Code Ann. § 39-14-303(a)(1) (1997). The trial court imposed a twenty-year

sentence in the Tennessee Department of Correction. In this direct appeal, the

defendant contends the state improperly withheld the existence of taped statements

of witnesses and improperly rehabilitated one of its witnesses out of court. After a

review of the record, the briefs of the parties, and the applicable law, we affirm.



              Floyd Polk, the defendant’s neighbor and friend, testified that on

March 1, 1996, the defendant came to his home at 1117 Belmeade Avenue around

9:30 p.m. For approximately an hour, they drank whiskey and talked. Polk testified

that the defendant was laughing and joking at this time. The defendant left Polk’s

home, but returned between midnight and 12:30 a.m. Polk testified that at this time

the defendant smelled like gasoline and there was a gallon jug with a liquid

appearing to be gasoline in Polk’s yard. When Polk asked the defendant about the

gasoline, the defendant said he had obtained the gasoline to help Tommy Ramsey’s

son whose car ran out of gas. As the defendant was leaving Polk’s home, Polk saw

the defendant walking toward 1005 Belmeade Avenue, where the fire occurred.



              After cross examination, the state’s attorney asked for a bench

conference. During the bench conference, the state’s attorney said Polk’s testimony

was inconsistent with his tape-recorded pretrial statement.        The defendant’s

attorney informed the judge that she had not received a copy of any pretrial

statements by testifying witnesses, including Polk’s pretrial statement. The court

ordered that the defense be provided with these pretrial statements, and a recess

was allowed for the defendant’s attorney to review the statements. After the recess,

Polk testified that he reviewed the recording of his March 5, 1996 statement during

                                      2
the recess at the district attorney’s office. The defendant’s attorney objected to the

district attorney’s allowing Polk to review his pretrial statement during the recess.

The court overruled the objection and allowed Polk to testify.



              Polk testified on further direct examination and cross-examination that

he had forgotten to mention in his earlier testimony that the defendant was upset

earlier that night about his pending divorce. The defendant seemed hurt by the

divorce situation. Polk testified that he remembered the defendant’s mood on the

night of the fire after listening to his pretrial statement during the recess. Polk

testified that the defendant was depressed when he arrived at Polk’s home at 9:30

p.m., but after they talked, the defendant was “acting all right.” Polk did not see the

defendant set the fire that occurred at 1005 Belmeade Avenue.



              Paulette Pearson and the defendant were in the process of a divorce,

and the defendant had permanently moved out of their house at 1005 Belmeade

Avenue two weeks prior to the fire. Paulette Pearson testified that the defendant

arrived there at 5:00 p.m. on March 1, 1996. They talked about selling the house

and splitting the proceeds or remodeling the house. The defendant left the house

at some point and returned around 11:30 p.m. Pearson testified that the defendant

was drunk at 11:30 p.m. The defendant wanted Pearson to drive him to his

mother’s house. When they arrived at his mother’s house, the defendant refused

to exit the car. Pearson testified that she had to forcibly remove the defendant from

the car. When Pearson arrived home, the defendant was on the phone requesting

to speak with her. She refused to talk to the defendant and went straight to bed at

11:40 p.m. She was awakened by Yolonda Pearson screaming that the house was

on fire. Yolonda Pearson, Paula Mason and Denzel Mason were in the house with

Paulette Pearson when the fire occurred sometime after 1 a.m.




                                       3
              There were two fires, one at the front door and one at the back door.

As the fires blazed, Pearson heard someone knocking on the door and thought it

was the defendant. She thought the defendant had started the fire because he had

threatened to burn the house on numerous occasions; however, the person

knocking on the door was a neighbor, who kicked the front door open so that the

occupants of the house could run through the door. Pearson did not see the

defendant set the fire, but she believed he did.



              Yolonda Pearson, the daughter of Paulette Pearson and the

defendant, testified that she discovered the fire. She thought the defendant was the

person knocking on the door during the fire because he had been saying for years

that he would burn the house.        She testified that Eric and Tim Fossis, the

defendant’s step-sons, went to the defendant’s mother’s house after the fire to find

the defendant because they believed the defendant started the fire. The Pearsons’

dog that always stayed close to their house was not at their house during or after

the fire; instead, the dog was at the defendant’s mother’s house.         This fact

confirmed their belief that the defendant started the fire.



              Sheila Earvin testified that she saw the defendant walking toward the

Conoco on Tunnel Boulevard with a plastic jug at 12:15 or 12:20 a.m. on March 2,

1996. The defendant had previously talked to her about his divorce, and he was

upset. Earvin did not know if the defendant started the fire, but she did tell the

detectives that she was angry with the defendant for burning the house.



              Alec Conner, an investigator with the Chattanooga Police

Department’s arson division, was called to the scene of the fire on March 2, 1996.

Conner noticed a splash pattern and an oily film on the front of the house. He

collected samples of fire debris for testing. As he was collecting the samples, he

                                      4
smelled a distinct accelerant odor. Sample three, pink insulation at the base of the

wall inside the back of the house, smelled strongly of gasoline. Conner testified that

the irregular burn patterns were caused by a liquid accelerant. Paulette Pearson

told Conner that the defendant had threatened to burn the house. Conner asked

an officer to bring the defendant to the Fire Administration Building to talk to him.



              When the defendant arrived, Conner advised him of his rights.

Conner detected a strong odor of alcohol, and the defendant’s hands smelled

strongly of bleach. Conner terminated the interview because he believed the

defendant was intoxicated. The Monday after the fire, Conner talked to several

neighbors near the fire. Conner concluded that the defendant was a suspect, and

the defendant was arrested on March 7, 1996. On this date, the defendant signed

a waiver of rights form. The defendant wrote two statements after waiving his

rights, one at Conner’s office and one at the county jail. The defendant denied

involvement in the fire in both statements.



              Conner identified his report on the fire. An unidentified person in the

crowd surrounding the house after the fire told Conner that a black male, who was

five feet nine inches tall, weighing 160 pounds, wearing dark clothes, was seen

running from the fire. This information was written in the suspect section of

Conner’s report. The defendant’s name was not listed in the suspect section of this

report.



              Betty Watkins, a Century 21 agent, testified that the defendant called

her to perform a market analysis on the house at 1005 Belmeade Avenue. She

testified that she and the defendant scheduled an appointment for March 8, 1996

so that she could list the house. The defendant scheduled the appointment at least

one week in advance.

                                      5
             The defendant testified that he was not involved in setting the fire at

1005 Belmeade Avenue. Although the divorce settlement stated that the house

would be sold and the proceeds split evenly, the defendant acquired estimates for

remodeling the house because Paulette Pearson wanted to keep the house. On

March 1, 1996, the defendant went to Tommy Ramsey’s house around 4:30 p.m.

where he helped Ramsey paint a box surrounding a flower bed. At some point, the

defendant saw a suspicious white male in a maroon truck sitting at the corner of the

fence near 1005 Belmeade Avenue. The defendant was concerned that there was

drug activity in which his step-sons were involved with the man in the truck. The

defendant went to Floyd Polk’s house around 9:30 p.m. and left there around 11:00

p.m. At this time, the defendant walked to 1005 Belmeade Avenue and asked

Paulette Pearson to drive him to his mother’s house. She drove him to his mother’s

house, and he exited the car.



              At his mother’s house, the defendant realized he had paint on his

hands. He asked his mother for 50 cents to buy gasoline to wash the paint off his

hands. On his way to the Conoco station, the defendant encountered a man who

was having trouble starting his car because the man thought he was out of gas.

The defendant offered to help, and he bought gas at the Conoco station. The

defendant helped the man start his car, and then walked to Polk’s house. He

stayed at Polk’s house for ten to fifteen minutes, then he walked to his mother’s

house where he changed clothes and fell asleep. The defendant was awakened

by someone saying his house was on fire. When he awoke, he was bleeding

because, as he was told, Tim Fossis and others had knocked him unconscious and

beat him. The police arrived soon thereafter, and he changed into his work clothes.

His work clothes were not clean and his rubber boots were “contaminated” with

chlorine from his job at Olin Chemical. He made a short statement to the police,

and they released him. The defendant denied any drug use, but admitted he had

                                     6
been drinking alcohol since he was seven years old. The defendant testified that

he received medical treatment for the beating he received the night of the fire.



              After hearing all the evidence, the jury convicted the defendant of

aggravated arson.1



                               I. Pretrial Statements

              The defendant contends the State improperly withheld the existence

of taped statements of witnesses. As described above, the defendant was not

provided with the pretrial taped statements of certain witnesses until the cross-

examination of the first of these witnesses, Floyd Polk. The state’s attorney said the

defendant had not requested these statements prior to that point in time. The

defendant’s attorney said she had requested all pretrial statements of witnesses.

The court ordered the state’s attorney to provide a copy of the pretrial statements

to the defendant’s attorney immediately, and a recess was called in order for the

defendant’s attorney to review these statements.



              The defendant is claiming the state’s attorney should have disclosed

the existence of these pretrial statements to the defense. However, there is no

claim that any of these statements were favorable to the defense such that the

state’s attorney would be required as a constitutional matter to disclose their

existence with or without a request from the defendant. See Kyles v. Whitley, 514

U.S. 419, 433-34, 115 S. Ct. 1555, 1565 (1995) (“Bagley held that regardless of

request, favorable evidence is material, and constitutional error results from its

suppression by the government, ‘if there is a reasonable probability that, had the



       1
        The defendant was indicted on four counts of attempted first degree
murder in addition to the indictment for aggravated arson. The jury found the
defendant not guilty on the four counts of attempted first degree murder.

                                      7
evidence been disclosed to the defense, the result of the proceeding would have

been different.’”) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.

3375, 3383 (1985)). Furthermore, Tennessee Rule of Criminal Procedure 16(a)(2)

provides that the defendant in a criminal case is not entitled to pretrial discovery of

“statements made by state witnesses or prospective state witnesses.” Accordingly,

the state’s attorney was neither required to disclose the existence of the witnesses’

pretrial statements nor to disclose the contents thereof.



              Rule 26.2(a) provides that “[a]fter a witness other than the defendant

has testified on direct examination, the trial court, on motion of a party who did not

call the witness, shall order the attorney [for the side sponsoring the witness] to

produce . . . any statement of the witness that is in their possession and that relates

to the subject matter concerning which the witness has testified.” Tenn. R. Crim.

P. 26.2(a) (emphasis added). Based upon our review of the record, there was no

motion by the defendant for Polk’s statements until the state raised the issue after

cross-examination. Under Rule 26.2(a), the state’s attorney was not required to

provide a copy of the statement to the defendant until a motion was made by the

defendant after the witnesses testified on direct examination. See State v. Taylor,

771 S.W.2d 387, 394 (Tenn. 1989). Once the existence of the pretrial statements

came to light, the defendant was provided a copy and an opportunity, via a recess,

to review the statements. See Tenn. R. Crim. P. 26.2(d).



              There was no improper withholding of the pretrial statements of the

witness.



                      II. Improper Rehabilitation of Witness

               Next, the defendant contests the State’s rehabilitation of one of its

witnesses, Floyd Polk, out of court during a recess. The defendant contends his

                                       8
right to confront the witness was violated by this out of court rehabilitation, and that

the testimony after rehabilitation was very damaging to the defendant.



              At the end of Polk’s cross-examination, the prosecutor asked for a

bench conference where he informed the judge and the defendant’s attorney that

Polk’s testimony was inconsistent with his pretrial statement. The prosecutor

attempted to have Polk declared a hostile witness, but the court declined. Instead,

the court said the prosecutor would be allowed to ask Polk about his pretrial

statement. After Polk listened to his pretrial statement during the recess, the

prosecutor attempted to lay a foundation for Polk’s need to refresh his memory.



              Floyd Polk was extensively questioned on cross-examination about

his listening to his pretrial statement during the recess. He never claimed on the

witness stand to have forgotten the events of March 1-2, 1996. However, Polk

testified on redirect examination that his memory was refreshed by listening to his

pretrial taped statement. Polk testified on cross examination that the prosecutor did

not tell Polk to testify differently or change his testimony in any way. According to

Polk, the prosecutor only asked that he listen to his pretrial taped statement during

the recess.



              First, we will analyze the procedure form as a claim of trial court error.

Then we will review it as a claim of prosecutorial misconduct.



                                           (a)

              The prosecutor attempted to refresh Polk’s memory by allowing him

to listen to his pretrial statement during the recess. For a writing to be used to

refresh the memory of a witness, the witness must claim a lack of memory of the

events in question. See Tenn. R. Evid. 612, advisory comm’n comments. Whether

                                       9
Rule 612 extends to taped statements used to refresh a witness’ memory while

testifying need not be decided in this case. Cf. Neil P. Cohen, Sarah Y. Sheppeard

and Donald F. Paine, Tennessee Law of Evidence § 612.2, at 402 (3d ed. 1995)

(“Rule 612 provides no guidance for things other than writings . . . If a witness

refreshes recollection by listening to a tape recording of a conversation, Rule 612

does not apply”). Regardless of Rule 612's application to a taped statement, a

proper foundation was not laid for Polk’s listening to his pretrial taped statement in

order to refresh his memory. The witness claiming a lack of memory is the

foundation required for a writing to be used to refresh the witness’ memory. Polk

neither claimed a lack of memory prior to listening to his pretrial statement nor was

his memory refreshed on the witness stand. But see State v. Mathis, 969 S.W.2d

418, 421 (Tenn. Crim. App. 1997) (foundation required under Rule 612 was shown

where witness testified that his memory was refreshed after he was shown and read

a prior statement on the witness stand).



              The prosecutor’s process of examining Polk can be viewed as an

attempt to impeach the credibility of his own witness. See Tenn. R. Evid. 607;

State v. Randy Lee Jones, No. 01C01-9708-CC-00326, slip op. at 19 (Tenn. Crim.

App., Nashville, July 8, 1999) (prior inconsistent statement may be used to impeach

a party’s own witness). The prosecutor could have impeached Polk by asking him

about his prior inconsistent statement while Polk was testifying. See Tenn. R. Evid.

607, 613.2    Under those circumstances, the prior statement would not be

substantive evidence. It would be admissible only for impeachment purposes. See




       2
        The state inaptly requested a declaration that Polk was a hostile witness.
This is an artifice designed to allow a party calling a witness to ask the witness
leading questions. See Tenn. R. Evid. 611(c). A declaration of hostility is not a
condition precedent to Rule 613 impeachment of a party’s own witness via a prior
inconsistent statement.

                                      10
State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). 3



               It is evident from the record that the prosecutor intended that Polk’s

prior statement regarding the defendant’s state of mind on the night of the fire be

substantive evidence. After listening to his prior statement, Polk changed his

testimony to coincide with the prior statement.            Because Polk changed his

testimony, the substance of the prior statement about the defendant’s state of mind

on the night of the fire became evidence via the direct testimony. See Neil P.

Cohen, Sarah Y. Sheppeard and Donald F. Paine, Tennessee Law of Evidence §

613.1, at 407 (3d ed. 1995) (“the in-court testimony becomes the real evidence”).

Thus, as long as the prosecutor was proceeding in good faith, he could have

broached the subject of the pretrial statement through Rules 607 and 613, and once

the witness adopted the content of the pretrial statement, the resulting testimony

would be substantive evidence.



               Although the procedure used by the prosecutor in examining Polk is

not proper under the rules of evidence, any trial court error in allowing the redirect

testimony after Polk listened to his pretrial statement was harmless. Tenn. R. Crim.

P. 52(a).    Had the prosecutor followed proper impeachment procedures, the

evidence would have been substantively admissible.



                                             (b)

               The prosecutor did not follow the proper procedures in examining

Polk, but his conduct does not rise to the level of prosecutorial misconduct. To


       3
        A prior statement may be introduced as substantive evidence under the
hearsay exception of Rule 803(5). See Tenn. R. Evid. 803(5). However, the state
did not seek to introduce Polk’s prior taped statement into evidence. Additionally,
Polk did not testify that he had “insufficient recollection to enable [him] to testify fully
and accurately.” Tenn. R. Evid. 803(5). Therefore, Rule 803(5) is inapplicable to
this case.

                                        11
establish a claim for prosecutorial misconduct, the defendant must prove that the

“improper conduct could have affected the verdict to the prejudice of the defendant.”

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). To determine whether

prosecutorial misconduct affected the verdict to the prejudice of the defendant, five

factors should be considered. The five factors to be considered are:

               (1) [t]he conduct complained of viewed in context and in
               light of the facts and circumstances of the case,

               (2) [t]he curative measures undertaken by the court and
               the prosecution,

               (3) [t]he intent of the prosecutor . . .,

               (4) [t]he cumulative effect of the improper conduct and
               any other errors in the record, [and]

               (5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).



               Considering the five factors, we find the prosecutor’s conduct was not

improper, particularly in light of factors (1) and (5). It did not affect the verdict to the

prejudice of the defendant. Under factor (3), the prosecutor appears to have acted

out of confusion in “the heat of battle,” not in a manner calculated to unfairly

prejudice the defendant. Under factor (4), we note again that Polk’s testimony would

have been admissible if the prosecutor had used the proper methods for examining

him.




               Finding no error in the trial court, the judgment is affirmed.



                                              ________________________________
                                              JAMES CURWOOD WITT, JR., JUDGE




                                        12
CONCUR:



_______________________________
JOHN EVERETT WILLIAMS, JUDGE



_______________________________
ALAN E. GLENN, JUDGE




                            13
