        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 10, 2009

                STATE OF TENNESSEE v. JOSEPH POLLARD

              Direct Appeal from the Criminal Court for Shelby County
                      No. 06-04223   John P. Colton, Jr., Judge




                No. W2008-02436-CCA-R3-CD - Filed May 11, 2010


A Shelby County jury found the defendant, Joseph Pollard, guilty of first degree murder,
attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C
felony. He received a life sentence for his first degree murder conviction, two years as a
standard offender for attempted voluntary manslaughter, and three years as a standard
offender for aggravated assault, to be served concurrently in the Tennessee Department of
Correction. On appeal, the defendant argues that the evidence was insufficient to support a
first degree murder conviction and that the trial court erred in dismissing his motion for
mistrial. Following our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J.C. M CL IN, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS and
R OBERT W. W EDEMEYER, JJ., joined.

Harry E. Sayle III (on appeal), Robert Wilson Jones, District Public Defender, and Latonya
Burrow and Robert Gowen, Assistant Public Defenders (at trial), Memphis, Tennessee, for
the appellant, Joseph Pollard.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Glen Baity and Alexia
Fulgham, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                       Background
        In March 2006, a Shelby County grand jury indicted the defendant, Joseph Pollard,
on three counts: (1) the first degree murder of Katrina Hayes, (2) criminal attempt to commit
the first degree murder of A.H.,1 and (3) the aggravated assault of A.H. The state amended
the second count to attempted voluntary manslaughter. A trial commenced on July 28, 2008.
From the trial, we summarize the following testimony.

        State’s Proof. The victim’s daughter, K.H.,2 testified that on September 21, 2005, she
had been to church and her grandmother’s house with the victim and her younger brother,
A.H. The family had just pulled into their carport at home when the victim’s former
boyfriend, the defendant, pulled into the driveway behind them, blocking them in the carport.
He came up to the victim’s door and demanded that she get out of the car and “stop f---ing
with him.” K.H. saw a gun in his hands. The victim pleaded with him and told her children
to run. As K.H. and her brother were getting out of the car and running away, she heard
three shots. She and her brother ducked behind the defendant’s car, but then her brother ran
across the yard, and the defendant fired a shot at him. They both began running down the
street, and the defendant got into his car and drove away in the opposite direction. K.H.
called 911 and was present when the paramedics arrived and began working on the victim.
K.H. testified that the victim had dated the defendant for approximately one year, but she had
ended the relationship the week prior to her death because the defendant began using crack
cocaine.

       On cross-examination, K.H. agreed that she originally told police that she did not see
the gun.

       A.H. corroborated K.H.’s testimony. Additionally, he testified that the defendant had
driven past their house, but he backed up and then pulled into their driveway behind their car,
a green van. A.H. was not injured when the defendant shot at him. He said that the
defendant had begun acting differently leading up to when the victim ended her relationship
with him.

       Officer Trent Matthew Pinks, a patrolman with the Memphis Police Department,
responded to a shooting call on September 21, 2005. When he arrived at the victim’s house,
the victim was lying in a pool of blood on the ground next to her van. She was able to tell
him what happened. He observed two bullet casings near her, and he testified that the
paramedics found a spent bullet lodged in her clothing when they cut off her clothing.




       1
           It is the policy of this court to refer to minors by their initials.
       2
           While K.H. was eighteen years old at the time of trial, she was a minor at the time of the offenses.

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      On cross-examination, Officer Pinks testified that the victim was alert when he arrived
and was in non-critical condition when the ambulance transported her.

       Officer Jonathan O’Malley Jones, a patrolman with the Memphis Police Department,
was the first to respond to the victim’s residence on September 21, 2005. He spoke with the
victim and collected one bullet that he found near the victim, which he tagged as evidence.

       Officer Marlon Wright, with the Memphis Police Department’s Crime Scene
Investigation Unit, photographed the scene at the victim’s residence after she had been
transported to the hospital. He also retrieved two .45 caliber casings from the driveway, by
the driver’s side of the van, and tagged them as evidence.

       Deputy Robert L. Harper, Jr., of the Shelby County Sheriff Department’s Fugitive
Division, testified that he went to 1180 Agnes Place on September 22, 2005 to arrest a
female. He did not find the female, but he received permission to search the residence. He
heard voices in the attic of the house, behind a door. Accompanied by his sergeant, he
kicked in the door. Upon entering the room, he took a male subject into custody. He then
observed another male behind some curtains who was raising a “shiny object” from his right
side. Deputy Harper grabbed the man’s wrist and ordered him to drop his weapon, a Ruger
pistol. The man complied, and Deputy Harper took him into custody. Other officers
recovered the pistol. Deputy Harper learned that the man with the pistol was the defendant,
and he had an outstanding arrest warrant. He transported the defendant to Memphis Police
Department’s Homicide Division. Deputy Harper testified that the pistol was loaded, and
he turned the weapon over to the Memphis Police Department.

       On cross-examination, Deputy Harper testified that his partner, his sergeant, and two
other deputies accompanied him when he searched the residence at 1180 Agnes Place. An
elderly woman who lived at the residence gave her permission for them to search.

        Sergeant Caroline Mason, of the Memphis Police Department’s Homicide Division,
testified that she received a call on September 22, 2005, that the defendant was in custody
at the homicide office at 201 Poplar Avenue. She and Sergeant Russell Maness attempted
to interview the defendant in an interview room. She explained why he was in custody and
that she wanted to speak with him. Sergeant Mason read the defendant his Miranda rights,
and he indicated that he understood his rights. He refused to provide a statement and asked
for a lawyer. He also told her “that he had seriously messed up” and “that [she] knew very
well that he didn’t need to give a statement because his butt was going to rot in jail.” She
did not question him further.

        On cross-examination, Sergeant Mason testified that the defendant read his Miranda
rights, but he did not read them aloud. He did not sign anything.

                                             -3-
        Dr. Karen E. Chancellor, the Shelby County Medical Examiner, testified that the
victim received two gunshot wounds. One entrance wound was located on the left side of
the victim’s abdomen. The bullet passed through her body, damaging blood vessels, internal
organs and bones, and exited through her left buttock. The second entrance wound was
located on the back of the victim’s right arm. The bullet broke the bones in the arm and
exited through the front of the arm. Dr. Chancellor testified that the gunshot wound to the
victim’s abdomen caused hemorrhaging that resulted in her death.

       On cross-examination, Dr. Chancellor testified that the victim was in exploratory
surgery for three hours after the shooting. The surgeons estimated that she lost twelve liters
of blood. Dr. Chancellor said that the normal human body holds five liters of blood. Dr.
Chancellor testified that both of the victim’s wounds were perforated, meaning the bullet
exited the body.

       Sergeant Russell Jeffery Maness testified that he worked this case with Sergeant
Mason. Sergeant Maness took possession of the weapon and ammunition that the sheriff’s
deputies brought in with the defendant. He placed a Ruger semi-automatic handgun, a
magazine with five live .45 caliber rounds, a plastic bag containing seven live .45 caliber
rounds, and one loose .45 caliber round in the property room.

        Thomas Shouse, an investigator with the District Attorney General’s office, testified
that he retrieved a .45 caliber automatic pistol with a magazine and thirteen bullets and a .45
caliber fired jacketed bullet from the state’s property room and transported them to the
Tennessee Bureau of Investigation for testing.

        Agent Alex Brodhag, a firearms examiner for the Tennessee Bureau of Investigation’s
Forensic Services Division, testified that he examined a .45 caliber automatic pistol, two
fired .45 caliber cartridge shells, and one .45 caliber fired jacketed bullet. Agent Brodhag
test-fired the pistol with rounds from a reference collection of ammunition and compared the
test-fired bullets and shells with the shells and bullet he received. He determined that the
examined pistol fired the bullet and shells received from the Memphis Police Department,
to the exclusion of all others.

       On cross-examination, Agent Brodhag testified that the pistol’s magazine could hold
eight rounds. With an additional round in the pistol’s chamber, the pistol could hold nine
rounds total.

      Defense Proof. Dr. O’Brian Cleary Smith, a forensic pathologist and former Shelby
County Medical Examiner, testified that one .45 caliber round would have been capable of
causing both of the victim’s gunshot wounds by entering and exiting her arm and then



                                              -4-
entering and exiting her torso. He further testified that the victim expired approximately two
hours after arriving at the Regional Medical Center.

       On cross-examination, Dr. Smith said that it was possible that two bullets caused the
victim’s wounds. He did not disagree with the victim’s cause of death.

       After the close of proof and deliberations, the jury returned its verdicts finding the
defendant guilty of first degree murder, attempted voluntary manslaughter, and aggravated
assault. The trial court sentenced the defendant to life with the possibility of parole for first
degree murder, two years for attempted voluntary manslaughter as a Range I standard
offender, and three years for aggravated assault as a Range I standard offender, with all
sentences to run concurrently. The defendant made a motion for new trial, which the court
denied. Subsequently, the defendant filed a timely notice of appeal.

                                              Analysis

                               I. Sufficiency of the Evidence
       On appeal, the defendant challenges the sufficiency of the evidence to support his first
degree murder conviction.3 The defendant “does not dispute that he fired the bullet that
struck [the victim].” He contends that the evidence was insufficient to prove premeditation
because of Dr. Smith’s testimony that one bullet could have caused all of the victim’s injuries
and because K.H. and A.H. testified that they were not watching when the defendant shot the
victim. The state responds that the evidence was sufficient to sustain the conviction. We
agree with the state.

        Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “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 (1979); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn


        3
         The defendant does not challenge the sufficiency of the evidence to support his convictions for
aggravated assault and attempted voluntary manslaughter.

                                                  -5-
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

        First degree murder is defined as the “premeditated and intentional killing of another.”
Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). Premeditation is explained
as follows:

       “Premeditation” means that the intent to kill must have been formed prior to
       the act itself. It is not necessary that the purpose to kill pre-exist in the mind
       of the accused for any definite period of time. The mental state of the accused
       at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from
       excitement and passion as to be capable of premeditation.

Id. An intentional act requires that the person have the desire to engage in the conduct or
cause the result. Id. § 39-11-106(a)(18). Whether premeditation is present is a question of
fact for the jury, and it may be determined from the circumstances surrounding the killing.
Bland, 958 S.W.2d at 660; State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992).
Circumstances that may be indicative of premeditation include declarations of the intent to
kill, procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the fact
that the killing was particularly cruel, infliction of multiple wounds, the making of
preparations before the killing for the purpose of concealing the crime, destruction or
secretion of evidence, and calmness immediately after the killing. State v. Jackson, 173
S.W.3d 401, 409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). A
defendant’s failure to render aid to a victim can also indicate the existence of premeditation.
State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000).

       Viewed in a light most favorable to the state, the evidence at trial established that the
defendant, armed with a .45 caliber Ruger pistol, drove to the victim’s house and blocked her
in her driveway. He demanded that she get out of the car and fired three shots, at least one
of which struck the unarmed victim, causing her to hemorrhage, which resulted in her death
several hours later. The defendant fired a shot at the victim’s son, who was running away
from him. The defendant then drove away in his car. The evidence further revealed that the
victim ended her year-long relationship with the defendant one week prior to her death. The

                                               -6-
defendant’s actions in driving to the victim’s house armed with a pistol, shooting the
unarmed victim in front of her children and driving away, as well as the history between the
defendant and the victim, support a finding of an intentional and premeditated killing. In our
view, a rational jury could infer that sufficient evidence existed to support the defendant’s
conviction. The defendant is, therefore, without relief as to this issue.

                                  II. Motion for Mistrial
       The defendant challenges the trial court’s denial of his motion for mistrial based on
the prosecutor’s allegedly improper comment on the defendant’s pre-trial silence during
closing arguments. The state responds that because the defendant was not silent before trial,
the prosecutor’s comment was not improper, and the trial court did not abuse its discretion
in denying the defendant’s motion for mistrial. We agree with the state.

        The decision of whether or not to declare a mistrial lies within the sound discretion
of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial
should be declared in a criminal case only when something has occurred that would prevent
an impartial verdict, thereby resulting in a miscarriage of justice if a mistrial is not declared.
See id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999); Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a mistrial will be declared in a
criminal case only when there is a ‘manifest necessity’ requiring such action by the trial
judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold,
563 S.W.2d at 794). A manifest necessity exists when there is “no feasible alternative to
halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The burden
to show the necessity for a mistrial falls upon the party seeking the mistrial. Land, 34
S.W.3d at 527. This court will not disturb the trial court’s decision unless there is an abuse
of discretion. Id.

       The scope of closing argument is subject to the trial court’s discretion and will not be
reversed absent a clear showing of abuse of discretion. See State v. Cauthern, 967 S.W.2d
726, 737 (Tenn. 1998); Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). It has long been
recognized that closing argument is a valuable privilege that should not be unduly restricted.
See State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797,
809 (Tenn. 1994)). However, closing argument “must be temperate, predicated on evidence
introduced during the trial, relevant to the issues being tried, and not otherwise improper
under the facts or law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). When
determining whether an improper argument constitutes reversible error, this court considers
whether the conduct was so improper or the argument so inflammatory that it prejudicially
affected the jury’s verdict. See Middlebrooks, 995 S.W.2d at 559.

       It is well established that a defendant may not be penalized at trial for the exercise of
his constitutional right to remain silent after arrest. Doyle v. Ohio, 426 U.S. 610, 618, 96

                                               -7-
S.Ct. 2240, 49 L.Ed.2d 91 (1976); Braden v. State, 534 S.W.2d 657, 661 (Tenn. 1976).
Generally, the prosecution may not comment at trial that a defendant invoked the right to
remain silent in the face of accusation. Braden, 534 S.W.2d at 660; Ware v. State, 565
S.W.2d 906, 908 (Tenn. Crim. App. 1978). However, a comment on a defendant’s silence
may be harmless error that does not require a mistrial. See Honeycutt v. State, 544 S.W.2d
912, 917-18 (Tenn. Crim. App. 1976).

       During the state’s rebuttal argument in this case, the prosecutor said
       Now, [K.H.] and [A.H.] both came and they testified . . . . And think about the
       defendant’s actions after this happened, after Katrina died from her injuries at
       the MED, and he’s brought down to the Homicide Office and questioned by
       Sergeant Caroline Mason in a large interview room.

       What does he do? He doesn’t give a formal statement because he knows - -

At that point, the defense requested a bench conference. The court ruled that the prosecutor
could continue her statement because “[the defendant] made some kind of oral statement[,]
[s]o I don’t think she’s overstepped her bounds at this point.” The defense moved for a
mistrial based on “the [s]tate commenting on his exercising his Fifth Amendment [r]ight not
to give a statement.” The court denied the motion, finding “that the defendant has not been
prejudiced by what the [s]tate said. . . . [S]he was referring to some oral statements . . . .”
The prosecutor chose not to continue her statement.

        The defendant contends that the prosecutor’s comment penalized him “by contrasting
the willingness of the [s]tate’s witnesses to give pretrial statements to [his] silence.”
However, Sergeant Mason testified that, while the defendant was in custody and after she
gave him a Miranda warning, the defendant said “that he had seriously messed up” and “that
[she] knew very well that he didn’t need to give a statement because his butt was going to
rot in jail.” Based on the sergeant’s testimony, we conclude that the defendant did not
remain silent while he was in custody; he merely refused to give a formal written statement.
See State v. Newsome, 744 S.W.2d 911, 918 (Tenn. Crim. App. 1987) (holding that the state
did not deliberately comment on the defendant’s invocation of his right to remain silent when
the state elicited testimony from a police officer that the defendant gave oral statements
rather than written statements). In light of the fact that the defendant did not remain silent,
but rather gave an inculpatory oral statement to the investigating officers, the defendant’s
argument fails. Id. He has not proven that the prosecutor made an improper comment or that
the trial court abused its discretion in refusing to grant a mistrial. He is, therefore, without
relief as to this issue.

                                         Conclusion



                                              -8-
Based on the foregoing reasons, we affirm the judgments of the trial court.




                                           ___________________________________
                                           J.C. McLIN, JUDGE




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