         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON               FILED
                            MAY SESSION, 1998             September 22, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TE NNE SSE E,              )    C.C.A. NO. 02C01-9707-CC-00265
                                    )
           Appellee,                )
                                    )    FAYETTE COUNTY
V.                                  )
                                    )
                                    )    HON . JON K ERR Y BLA CKW OOD ,
COREY LEMONT PO WELL,               )    JUDGE
                                    )
           Appe llant.              )    (FIRST DEGREE MURDER)



FOR THE APPELLANT:                       FOR THE APPELLEE:

MICHAEL E. SCHOLL                        JOHN KNOX WALKUP
200 Jefferson Avenue, Suite 202          Attorney General & Reporter
Memphis, TN 38103
                                         DOUGLAS D. HIMES
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenu e North
                                         Nashville, TN 37243

                                         ELIZABETH T. RICE
                                         District Attorn ey Ge neral

                                         CHRISTOPHER MARSHBURN
                                         Assistant District Attorney General
                                         302 M arket Stre et
                                         Somerville, TN 38068




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
      The Defendant, Corey Lemont Powell, appeals as of right from his conviction

in the Fayette County Circuit Court.       Defendant was indicted on three counts,

including especially aggravated robbery, murder during the perpetration of a robbery,

and premeditated first degree murder.            Following a jury trial, Defendant was

convicted of second d egree m urder, felony mu rder and especially aggravated

robbery. The trial court m erged th e seco nd deg ree mu rder con viction with the felony

murder conviction and sentenced Defendant to serve a life sentence for felony

murder concurrent with a sentence of fifteen (15) years for the especially aggravated

robbery conviction. Defendant submits the following issues for appellate review:

      1) whether the trial cou rt erred in denying Defenda nt’s motio n to
      suppre ss his state ment;

      2) whether the trial court erred in refusing Defendant access to the
      results of a polygraph test for use as evidence;

      3) whethe r the trial cou rt erred by re fusing to suppress evidence of the
      murde r weapo n and th e ballistics tes t;

      4) whether the trial court erred in denying Defendant’s motion regarding
      the striking of specific jurors and motion for a change of venue;

      5) whether the tria l court erred in denyin g Defend ant’s motion for a
      mistrial du e to adm ission of ev idence of Defen dant’s arre st;

      6) wheth er the tr ial cou rt erred in refus ing to a dmit testimony regarding
      Defe ndan t’s restricted access to the telephone during police
      questioning;

      7) whether the trial cou rt erred in overruling Defend ant’s motion for a
      judgm ent of a cquitta l;

      8) whether the trial court erred by refusing to charge lesser included
      offenses of premeditated first degree murder; and

      9) whether the trial court erred by allowing prosecutorial misconduct
      during the trial.




                                           -2-
      After a thorough review of the record an d the briefs in this ma tter, we affirm

the judgment of the trial court in all respects.



      Bess ie Russell, wife of Don Russell, testified that he was the owner and

operator of Russell’s Grocery located in Hickory W ythe, a rura l area of Fa yette

County. The store had been open since April 1947. In May 1994, Don Russell was

seventy-four (74) ye ars old . Russ ell and his wife lived next door to the store, and

each morning he rose at 5:00 a.m. to op en the store. He went to the store to eat h is

breakfast and read the paper, then returned to the house with the newspaper for her

to read. The store was open from 5:00 a.m. until 5:30 p.m.



      On May 27, 1994, Mrs. Russell awoke and discovered that her husband had

not yet returned with the newspaper. She walked to the store and found him lying

on his back in a pool of blood.       Mrs. Russell called 911, and the victim was

transported by helicopter to a hospital in Memphis where he was pronounced dead.

She noticed that the cigar box was missing from the store and estimated the amount

of mon ey in the bo x to be be tween $ 800.00 and $1 200.00 .



      Dr. O’Brien Sm ith testified that he perform ed the a utopsy of the victim. Dr.

Smith report ed tha t the victim died as a result of a near gun shot wound to the head,

and he rem oved a .22 ca liber bu llet fragment from the back of the victim’s brain.

From his examination, Dr. Smith determined that the gun fired at the victim was

between six (6) to tw elve (1 2) inch es from the victim ’s head at the time it was fired.



      Bill Kelley, Sheriff of Fayette C ounty, testified that he led the investigation of

the victim’s murder. After arriving at Russell’s Grocery on May 27, 1994, at 6:30

                                           -3-
a.m., Sheriff Kelley de termine d that a cigar box containing approximately $1200.00

had been stolen from the store and that the re were no witnesses to the shooting of

the victim.    On June 24, 1994, Ke lley interrogated a po tential suspect, Jerry

Coleman, but after a brief investigation, Coleman was eliminate d as a su spect. The

investigation, in She riff Kelley ’s word s, cam e to a “d ead e nd.” T wo yea rs later, in

April 1996, Kelley discovered that the Defendant had told some people within the

comm unity that he was responsible for the victim ’s mu rder. A lso, the Defe ndan t’s

nine-shot .22 caliber revolver was seized from him by police du ring the M id-South

Fair.   After the revolver was recovered from the Memphis Police Department

property room, both the revolver and b ullet fragments from the victim’s brain were

sent for ba llistics testing.



        Kelley interviewed the Defendant for the first time on May 1, 1996, advising

him that he was investigating the victim’s death and that they had recovere d the

Defe ndan t’s pistol. After reading Defendant his constitutional rights, the Defendant

signed a waiver of these rights and did not request an attorney or his parents to be

present during the interview.      Defendant denied any involvement in either the

robbery or murd er of the victim, but did advise Kelley that Br yant P owell a nd Er in

Lucke tt were involved. The Defendant was released following that interview. After

further investigatio n, the De fendant was again picked up by the police for

questioning on May 3 or 4, 1996. After advising Defendant of his rights for a second

time, Kelley interviewed the Defendant on May 6, 1996. Defendant again denied his

involvement in the crime.



        On May 7, 19 96, Sheriff Kelley wa s notified tha t the Defe ndant w anted to

speak with him. After Defendant was advised of his constitutional rights and signed

                                            -4-
a waiver form, h e aga in denied involvement in the murder and implicated his cousin,

“Big John,” fro m Me mphis .      On Ma y 8, 1996 , Agent S cott W alley from the

Tennessee Bureau of Investigation came to interview the D efenda nt upon Sheriff

Kelley ’s request. Sheriff Kelley verified that the Defendant was never mistreated or

prom ised anything in exchange for his statement. Kelley also stated that he was

never informe d by eithe r the Defe ndant o r his paren ts that they wanted or had

retained an attorney, although Kelley spoke with Defendant’s parents several times

throughout the investigation.



      Agent Walley testified that he advised Defendant of his constitutional rights.

During the first portion of the interview, Defendant denied involvement in the crime.

Following a lunch break, Defendant returned to the interview and gave a statement

to Agent Walley in which he admitted robbing and shooting the victim. Defendant

stated that he entered Russell’s Grocery at approximately 5:30 a.m. on May 27,

1994, with his nine-shot .22 caliber revolver in his right front pocket. He told the

victim to “give [him] the m oney a nd the re won ’t be no [sic] pro blem .” The victim

pulled out the gold cigar box from underneath the counter, and then went to the beer

cooler to get a six-pack of Miller be er as D efend ant req ueste d. W hile turning around

with his elbows halfway up, the Defendant became frighten ed an d pulle d out h is

revolver which “acc identally fired.”



      W hile the Defendant’s statement was not tape recorded, Agent Walley took

notes and then w rote out a statem ent in narrative form w hich Defen dant read and

signed after initialing all corrections. Sheriff Ke lley returne d to the room and read the

statem ent.   W h en Defendant affirmed that this was indeed his statement, Kelley

signed the statem ent as a w itness.

                                            -5-
       Steve Scott, an agent of the Tennessee Bureau of Investigation, administered

the ballistics testing on the pistol and the bullet fragment. While Scott was unab le

to determine that the bullet fragme nts were fired from the Defe ndant’s p istol due to

damage, Scott testified that all four class characteristics of the bullet and the pistol

were a match . These four class characteristics included the caliber of the gun and

bullet, the directio n of the ba rrel twist, the number of lands and grooves, and the

width of the lands and grooves.          While the Defendant’s weapon could not be

isolated as the murder weapon, it could “certainly” have been the weapon used.

Agent Scott also noted that the pisto l required trigger press ure “between normal and

heavy” to fire the weapon, dependent upon whether the weapon was cocked or

uncocked when it was fired.



       The S tate rested its case-in-c hief.



       Tim Adams, a friend of the Defendant’s, testified that after the victim’s murd er,

the Defendant left town for one or two weeks. When the Defendant returned, he had

both new tire s and a new vinyl top on his car. Jokingly, Adams inquired whether the

Defendant had “bumped old Do nn off,” b ut the D efend ant on ly laughed in response.



       Jess e Jam es Jo nes te stified th at he w as inca rcerat ed in a cell facing that of

Defendant’s. Jones made several telephone calls for the Defendant because the

telephone in Defendant’s cell was not working.



       Rodney Johnson testified that the Defendant never told him that he robbed or

murd ered th e victim . John son d id verify th at De fenda nt own ed a .2 2 pisto l.




                                            -6-
       Stevison Veasey, the Defendant’s stepfather, testified that Defendant visited

his mother around May 27, 1994. During that visit, Veasey bought new tires for

Defe ndan t’s car. During that same visit, Veasey stated that Defendant’s natural

father put a new vinyl roof on the Defe ndant’s car.



                            M OTION TO SUPPRESS STATEMENT



       Defendant argues that his state ment g iven to the police on his fifth day of

incarceration should h ave bee n supp ressed as a violation of his Fourth, Fifth and

Sixth Amendment rights under the United States Constitution. Wh en an accu sed is

afforded an evidentiary hearing on the merits of a motion to suppress, the findings

of fact made b y the trial court are bin ding upon the appellate court unless the

evidence containe d in the rec ord prep ondera tes aga inst these findings. State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the witnesses,

the weight and value of the evidence , and resolution o f conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact.” Id. Provided that the greater

weight of the e videnc e sup ports th e trial co urt’s findings, then those findings shall be

uphe ld by the appellate court and the party prevailing in the trial court is entitled to

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn from that evidence. Id. In evaluating the correctness of the trial

court’s ruling o n Def enda nt’s pre trial mo tion to s uppre ss, this court may consider the

proof adduced both at the suppression hearing an d at trial.              State v. Johnny

Henning, ____ _ S.W .2d __ ___, N o. 02S 01-97 07-C C-00 65, 19 98 W L 324 318, s lip

op. at 6, Madiso n County (T enn., at Jackso n, June 22, 19 98).




                                             -7-
      At the he aring o n the m otion to supp ress, S heriff B ill Kelley te stified that h e

had the Defendant picked up for questioning for the first time on May 1, 1996. After

the Defendant denied any involvement in the crime and implicated others, he was

released and further investigation occurred. Kelley recalled that Defendant was

picked up again for questioning on May 6, 1996, and was held until he confessed on

May 8, 1996 . There is some discrepancy in Kelley’s testimony as to the date the

Defendant was picked up by the police for questioning on the second occasion.

Howeve r, the trial court’s findings of fact and the strongest legitimate view of th e

evidence require us to conclude that Defendant was not picked up for questioning

again by the police until May 6, 1996 and was held w ithout a warra nt or arr est un til

May 8, 1 996, wh en he c onfess ed to the ro bbery an d murd er of the victim .



      First, we will address the Defendant’s contention that his confession was

obtained in violation of his Sixth Amendment constitutional right to counsel. The

Sixth Amendment right to counsel does not attach until the adversarial judicial

process has be gun. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407,

89 L.Ed.2d 631 (1 986) (citatio ns om itted); State v. Stephenson, 878 S.W.2d 530,

547 (Tenn. 1994). The long-established law in Tennessee for the initiation of the

adversarial judicial process is at the time of the filing of the formal charge, such as

an arrest warrant, indictment, presentme nt, or preliminary hea ring in cases wh ere

a warrant was not obtained prior to the ar rest. State v. Mitch ell, 593 S.W.2d 280,

286 (Tenn . 1980), cert. denied, 449 U.S. 845 (1980); State v. Butler, 795 S.W.2d

680, 685 (Tenn. Crim. App. 1990). It is clear from the record that Defendant had not

as yet been formally charged as of the time he gave his statement, therefore no right

to coun sel had ye t attached and no violation of the Sixth Am endm ent occu rred.




                                            -8-
       Defendant urges this court to suppress his statement as involuntary based

upon denial of the right to counsel during police interrogation pursuant to the Fifth

Ame ndme nt. If a suspect requests that counsel be present during police-initiated

custodial interrog ation, th en po lice m ust ce ase q uestio ning u ntil cou nsel for that

suspect is presen t. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612,

16 L.Ed.2d 694 (19 66); Edwards v. Arizona, 451 U.S . 477, 482, 101 S.Ct. 1880,

1883, 68 L.Ed .2d 378 (1981); State v. S tephenson, 878 S.W.2d at 547-48. The

Defendant waived his right to counsel verbally and/or in writing on each occasion

when he was interrogated by the police. Therefore, his waiver is sufficient for the

police to have a ssum ed he d id not invok e his right to c ounse l under the Fifth

Ame ndme nt.



       The Defendant asserts that at the time he gave his statement to the police he

had been incarcerated for five (5) days and that this amount of time violated the

Fourth Amendment right to prompt judicial d eterm ination of prob able cause after a

warrantless arrest. The State concedes that Defendant may have been detained

over a period of forty-eight (4 8) hours , therefore , there wa s a violation of the Fo urth

Ame ndme nt. See Cou nty of R iverside v. McL augh lin, 500 U.S . 44, 56, 11 1 S.Ct.

1661, 1670, 1 14 L.Ed .2d 49, 63 (1991); State v. Huddleston, 924 S.W.2d 666, 671-

73 (Tenn. 199 6). In Huddleston, our state supreme court determined that the “fruit

of the poisonous tree” analysis is to be applied to determine whether a statement

obtained in violation of th e Fourth Ame ndme nt mus t be supp ressed . Huddleston,

924 S.W.2d at 674. The question is “whether [the statement] ‘was sufficiently an act

of free will to purge the prim ary taint of the unlawful invas ion.’” Brown v. Illinois, 422

U.S. 590, 598, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975) (quoting Wo ng Sun v.

United States, 371 U.S . 471, 486 , 83 S.C t. 407, 416 , 9 L.Ed.2 d 441 (1 963)).

                                            -9-
       Four factors are useful in determining whether the statement was voluntary

under the above standard: (1) the presen ce or ab sence of Miranda warnings; (2) the

temporal proximity of the arrest and the confession; (3) the presence of intervening

circumstances; and (4) the purpose and flagrancy of the official m iscondu ct. Brown,

422 U.S. 603-04 , 95 S.C t. at 2261-6 2; Huddleston, 924 S .W .2d at 6 74-75 . First, all

testimony indicates that Defendant was given Miranda warnin gs bo th orally and in

writing prior to giving his statem ent to the police. Th e fact that Defen dant was a ware

of his Fifth Am endm ent righ ts aga inst se lf-incrim ination is a facto r weigh ing in favor

of attenua tion. Huddleston, 924 S.W .2d at 675 . Secon d, the tem poral pro ximity of

the arrest an d confe ssion, a p eriod of jus t a few hours past a McLa ughlin violation,

weighs only slightly in favor of suppression.



       The third factor, the presence of intervening circumstances, points toward

purging the initial illegality of the sta teme nt as D efend ant co nsulte d with h is fam ily

on May 7, 19 96, prior to g iving his state ment. Huddleston, 924 S.W.2d at 675. Also

on May 7, D efenda nt reque sted to voluntarily submit to a polygraph examination on

the following day.     Defendant’s consent to submit and remain present for the

polygraph examination exemplifies his “act of free will,” also pointing towards

attenuation. Finally, the State concedes that Defendant’s detention under the fourth

determining factor wa s neither in adverte nt nor unin tentional b ased u pon Sh eriff

Kelley’s tes timony.



       W hile the fourth factor is weighed heavily by this court when determining

whethe r to suppress a statement, a review of the remaining three (3) factors leads

this court to conclude that Defendant acted sufficiently of free will to purge the initial

illegality of his statemen t. Both the intervening factors and th e use o f Miranda

                                             -10-
warnings clearly demo nstrate that Defe ndant acted of his own free w ill, and the third

factor, that of temporal proximity, does not exhibit such a length of time as to require

suppression.



      Defendant also argues that this delay violated Rule 5 of the Tennessee Rules

of Criminal Procedure. Rule 5(a) states that any person arrested without a warrant

shall be taken without un neces sary dela y before th e neare st appro priate magistrate.

As Defendant did not agree to a lengthy detention, it is argued that the delay was not

in good faith and was unnecessary. The S tate ag ain co nced es tha t Defe ndan t’s

detention violates this rule.     Violation of this rule results in suppre ssion of a

statement if the statement was not voluntarily given under the totality of the

circumstances. Huddleston, 924 S.W.2d at 670. The following factors may be used

in determining the voluntariness of the confession:

      The age o f the ac cuse d; his la ck of e duca tion or h is intellige nce le vel;
      the extent of his previous experience with the police; the repeated and
      prolonged nature o f the ques tioning; the length of the detention of the
      accused before h e gave th e statem ent in que stion; the lack of any
      advice to the accused of his constitutional rights; whether there was an
      unneces sary delay in bringin g him before a magistrate b efore he gave
      the confession; whether the accused was injured, intoxicated or
      drugged, or in ill health when he gave the statement; whether the
      accused was deprived of food, sleep, or medical attention; whether the
      accused was ph ysically abu sed; an d wheth er the su spect was
      threatened with abuse.

Huddleston, 924 S.W.2d at 671 (quoting People v. Cipriano, 431 Mich. 315, 429
N.W .2d 781 (198 8)).


      There is no evidence within the record to support that the Defendant’s age,

intelligence or education levels prevented him from voluntarily confessing. N or were

any physical o r menta l limitations intro duced into evidence. Th ere is some evidence

indicating Defendant has had prior contact with law enforcement. While Defendant

was repea tedly questioned by the police, he was Mirandized prior to a ll questioning

                                            -11-
and he initiated many portions of that questioning voluntarily. Another factor favoring

voluntariness of his con fessio n is the conta ct he w as allo wed to have w ith his family.

At no time du ring the qu estioning was the re any evid ence th at Defen dant was

deprived of any necessities, nor is there evidence of physical or mental abuse.

W hile we agree there was an unnecessary delay and a violation of Rule 5(a) of the

Tennessee Rules of Criminal Procedure, under the totality of the circumstances we

canno t conclud e that De fendan t’s statem ent was involuntary .



                                P OLYGRAPH EXAMINATION



       Defendant contends that he should have been allowed a ccess to the resu lts

of his polygrap h exam ination an d shou ld have b een allow ed to presen t the results

as evidence. At the suppression hearing, Agent Walley testified that the results

indicated that Defendant was “deceptive” as to his involvement in the crimes

committed against th e victim. T herefore , Defend ant was a llowed access to the

results of th e exam ination.



       Well-established law in Tennessee holds that the results of a polygraph

examination are not admissible as eviden ce. State v. Hart, 911 S.W.2d 371, 377

(Tenn. Crim. A pp. 199 5); State v. Irick, 762 S.W .2d 121 , 127 (T enn. 19 88), cert.

denied, 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 825 (1989); State v. Adkins,

710 S.W.2d 525, 529 (Tenn. Crim. App. 19 85); Grant v. S tate, 213 Tenn. 440, 443,

374 S.W.2d 391, 392 (1964). As the State correctly notes within its brief, neither the

offer to take a polygraph nor th e circu msta nces surrou nding the exa m are adm issible

as evidenc e. Adkins, 710 S.W .2d at 528 -29; Grant, 374 S .W .2d at 3 92. Th is issue

is without m erit.

                                            -12-
                         R EVOLVER AND B ALLISTICS TEST RESULTS



       Defendant argue s that th e trial co urt erre d in admitting a revolve r and b allistic

test results into e vidence . Defend ant as serts th at the re volver w as ina dmis sible

since his prior crim inal record had be en expu nged. F urtherm ore, the D efendant

urges this court that the ballistics test results were so inconclusive as to be rendered

neithe r releva nt nor p robativ e, but h ighly pre judicia l.



       During Septem ber 199 4 at the Mid-South Fair in Memphis, Tennessee,

Defendant was arrested for carrying a loaded .22 caliber revolver. After pleading

guilty to charges of carrying a weapon on recreational property, Defendant was

placed on judicial diversion.        Evidently, Defendant completed his sentence of

diversion without furth er inciden t and his re cord wa s expun ged.



       Expungement pursuant to judicial diversion includes “all recordation relating

to the person’s arrest, indictment or informa tion, trial, finding o f guilty and dismissal

and discharg e . . .” Tenn. C ode An n. § 40-35-3 13(b). T his statute ’s purpos e is to

restore the defendant to the sta tus the pe rson oc cupied prior to suc h arrest,

indictment or information.           Defenda nt ma intains that ph ysical e videnc e is

inadm issible under th e judicial dive rsion statu te. There is no auth ority to sup port his

argum ent. The purpose of expunging records of a criminal charge is to place the

person back in the position he or she occupied prior to being arrested or charged.

State v. Sims, 746 S.W .2d 191 , 199 (T enn. 19 88). While the trial court did allow use

of the revolver as admissible physical evidence, he refused to allow admission of any

facts surrounding Defendant’s prior arrest.           The expungement language in our

judicial diversion statute precludes use of proof of any a rrest, indictm ent,

                                              -13-
information, or trial. State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim . App.

1995). Physic al evide nce is not excluded under this statutory section, and this issue

is without m erit.



       Defenda nt complains the ballistic test results should have been suppressed

as they were “inconclu sive” and , although relevant, their probative value was

subs tantially outweighed by the danger of unfair prejudice. The decision to admit or

exclude evidence rests in the sound discretion of the trial court, and this court will not

overturn the trial court’s rulings absent a clear showin g of abu se of disc retion. State

v. Bigbee, 885 S.W .2d 79 7, 806 (Ten n. 199 4). W hile the officer who conducted the

ballistics tests admitted the test results were not conclusive, he testified that the

weapon could not be excluded as the potential murder weapon. The officer also

stated that the four class characteristics of the Defendant’s weapon matched the

bullet which killed the victim. The revolver and the murder weapon had matching

calibers, same number of land and grooves, matching land and groove widths, and

the same direction of barrel twists. Coupled with the statement of Defendant

confessing to the crime, these test results are relevant, and the probative value

clearly outwe ighs th e pote ntial prejudicial effect of the inconclusive nature of the

results.



                      B ATSON CHALLENGE AND CHANGE OF VENUE



       Defendant argues that the State’s exclusio n of ce rtain bla ck juro rs was in

violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.E d.2d 69 (198 6).

Following the conclusion of voir dire, the State exercised its peremptory challenges

against four (4) jurors, specifically jurors Rivers, Howell, Wo ods an d Bryan t.

                                           -14-
Defendant objected under Batson that such challenges were based upon willful and

purposeful discrimin ation by th e State. While the Defendant argued that these

challenges resulted in all blacks being exc luded from th e jury, the State responded,

“[I]t’s been an unfortunate coincidence that most everybody that knows the

defendant or his family is African-American, but that’s a sociological fact that the

State can’t be p rejudiced by . . .”



       After Defendant objected, the State responded to each challenge with an

individual explana tion for the p eremp tory challen ge.   First, wit h regard to juror

Rivers, the State cited the fact that he had been through the criminal courts before

and worked with individuals similarly situated to the Defendant on a daily basis. The

State referenced the challenge to juror Howell due to her relationship with the

Defendant and his fam ily, and that, in response to questioning, so me of her a nswers

“gave her some pause about her judgment in this case.” Juror Woods was excluded

by the State as he has a son the same age as the Defendant and is friends with the

Defendan t. Juror Bryant had two family members convicted of felony offenses in

Fayette C ounty.



       There is a three-step analysis defined in Batson which is u sed to determine

whether purposeful discrim ination has o ccurre d in jury selection . Batson, 476 U.S.

at 96-98. First, the opponent of the peremptory challenge must establish a prima

facie case of racial discrimination. Second, the one exercising the challenge must

present a race-neutral explanation for exercising the challenge. Th ird, the trial court

is to determine whether the reasons given are sufficient or are pretexts for

discrimin ation.




                                          -15-
       In Woodson v. Porter Brown Limestone Company, Inc., 916 S.W.2d 896, 904

(Tenn. 1996), our suprem e court h eld that in a ccom plishing the mand ate of Batson,

the trial court should state clearly on the record, outside the jury’s presence, the

facts relied upon fo r finding the presen ce or ab sence of a prima facie showing. If the

trial court finds that a prima facie showing has been made, then the party seeking

to exclude the juror m ust have an opportunity to offer neutral and no ndiscriminatory

explanations for the exercise of the challenge.              “Thereafter, the judge must

determine, based on all the evidence, whether purposeful discrimination has been

establish ed.” Id. at 904. While the procedure used by the trial court did no t explicitly

follow these guidelines, we must conclude that the trial judge determined first that

a prima facie case of discrimination was established and, second, that the trial judge

rejected Defendant’s objection by concluding that there was no purposeful

discrimination by the Sta te. Id. at 905 . Wh ile the trial cour t did not sp ecifically state

within the reco rd the rea sons for e ach findin g, the record of voir dire supports the

trial court’s ruling as to Defendant’s Batson objection. Upon review of the record, we

will not se t aside the rulin gs of th e trial co urt as th ey are not cle arly erroneo us. See

Woodson, 916 S.W .2d at 906 (citations o mitted).



       After Defendant made a contemporaneous motion for a change of venue

during his voir dire challenges, the trial court overruled his motion. Defendant

objected on the basis of the prosecutor’s statement that most every African-

American in the potential jury pool knew the Defendant.                  Rule 21(a) of the

Tennessee Rules of Criminal Procedure provides for a change of venue “if it appears

to the court that, due to undue excitement against the defendan t in the county whe re

the offense was committed or any other ca use, a fair trial proba bly could n ot be ha d.”

The decision to change venue rests in the so und d iscretio n of the trial cou rt and w ill

                                             -16-
not be overturned absent a clear abuse of discretion. Rippy v S tate, 550 S.W.2d

636, 63 8 (Ten n. 1977 ); State v. Melson, 638 S.W .2d 342 , 360 (T enn. 19 82).



      In order to revers e a de fenda nt’s conviction due to the den ial of his mo tion to

change venue, the defendant must establish that the juro rs em pane led to h ear his

case were pre judiced o r biased a gainst him . State v. Burton, 751 S.W.2d 440, 451

(Tenn. Crim. A pp. 198 8); State v. Evans, 838 S.W.2d 185, 192 (Tenn . 1992), cert.

denied, 114 S.Ct. 740 (1993).       There is no evidence in the record that undue

excitement or any other cause threatened his right to a fair trial in that county. The

mere fact that there was e xtensive knowledge of the crimes and the defendant is not

sufficient to rende r the trial con stitutionally un fair. State v. Kyger, 787 S.W.2d 13,

19 (Tenn. Crim. App. 1989) (citation omitted). Absent any proof by this Defendant

that the juro rs were p rejudiced against h im, we find this issue to be withou t merit.



                                 M OTION FOR MISTRIAL



      Defendant argues that the trial court erred in overruling his m otion for a

mistrial base d upo n the p rosec utor’s reference to Defendant’s expunged conviction

during the trial. During pretrial motions, the trial court determined that Defe ndan t’s

prior arrest had been properly expunged and, therefore, the prosecution could not

“go into the underlying circumstances of any crimes [the Defendant] would have

committed while he had the gun or any charges against him.” Defendant claims that

the prosecution did present testimony of and reference these inadmissible matters.



      A mistrial is an appropriate remedy when a trial cann ot continue, or a

miscarriage of justice wo uld result if it did. State v. McPherson, 882 S.W.2d 365,

                                          -17-
370 (Tenn. Crim. App. 1994). The decision to grant a mistrial rests in the sound

discretion of the trial cou rt, and this court will not interfere with the exercise of that

discretion absent clear abuse appearing on the face of the record. State v. Jones,

733 S.W.2d 517, 522 (Tenn . Crim. App . 1987); State v. Adkins, 786 S.W.2d 642,

644 (T enn. 19 90); McPherson, 882 S.W.2d at 370.



      Clearly, the record demonstrates that the prosecutor elicited testimony

regarding the pistol taken from the Defendant, but the prosecutor at no instance ever

inquired into the underlying circumstances surrounding the Defe ndant’s a rrest. As

previously determ ined, the te stimon y conce rning De fendan t’s posse ssion of a

revolver was admis sible, and there is no evidenc e of a “manifest necessity” by which

the trial court sho uld have declared a mistrial. See Arnold v. S tate, 563 S.W.2d 792,

794 (Ten n. Crim. App . 1977).



                           T ESTIMONY OF JESSE JAMES JONES



      Defendant contends that the trial court erred in excluding some portions of the

testimony of Jesse Jame s Jone s, a cellm ate of the Defen dant.             Specifically,

Defendant asserts that the trial court excluded testimony regarding the Defe ndan t’s

lack of ability to use a telephone while incarcerated.           As this issue was not

spec ifically included within the Defendant’s motion for new trial, this issue is not

prope rly before this court an d is, therefo re, waived . Tenn. R . App. P. 3 (e); State v.

Clinton, 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).



                                J UDGMENT OF ACQUITTAL




                                           -18-
      Defendant argues that the trial court erred by failing to gran t a motion for a

directed verdict and judgm ent of acq uittal following the conc lusion of the State’s

proof and at the end of the trial. The duty of the trial judge and the reviewing cou rt

on the determination of a motion for a judgmen t of acquittal is the sam e as for a

motion for a directe d verdict. State v. T orrey, 880 S.W.2d 710, 712 (Tenn. Crim.

App. 1993). This duty is as follows:

      The rule for determining a motion for a directed verdict requires the trial
      judge and the reviewing court on appeal to look at all of the evidence,
      to take the strongest legitimate view of it in favor of the opponent of the
      motion, and to allow all reasonable inferen ces from it in its favor; to
      discard all coun tervailin g evide nce, a nd if the n, there is any dispute as
      to any material determinative evidence, or any doubt as to the
      conclusion to be drawn from the whole evidence, the m otion must be
      denied.

State v. Thompson, 549 S.W.2d 943, 946 (Tenn. 1977) (citing Jones v. State, 533
S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).


      Defendant was convicted of murder in the perpetra tion of robbery and second

degree murder, wh ich the trial court merged as one conviction for felony murder. At

the time of this offense, a reckless killing of another committed in the perpetration

of or attempt to perpetrate any robbery or burglary constituted first degree mu rder.

Tenn. Code Ann. § 3 9-13-20 2(a)(2). H e was a lso convic ted of especially aggravated

robbery. Especially aggravated robbery is the intentio nal or kno wing the ft of proper ty

from another person accomplished by a deadly weapon and the victim suffers

serious b odily injury. Te nn. Co de Ann . §§ 39-1 3-401, -4 03.



       From the record, it is clear that the evidence is sufficient to support the trial

court’s refusal to grant these motions. While Defendant focuses upon the element

of “premeditation” in his brief, this mental state was not required by these offenses

and his argum ent is mo ot. In his own statem ent, Defe ndan t adm itted to in tention ally



                                           -19-
using a revolver to rob the victim of his store earnings. While the Defendant claims

to have accidentally fired the handgun, evidence demonstrated that it would take a

significant amount of pressure to discharge the weapo n. In any ev ent, the reckless

use of the weap on res ulting in the death of the victim while Defendant committed a

robbery is sufficient to c onstitute convictio ns of fe lony m urder and e spec ially

aggravated robbery.



                             L ESSER INCLUDED OFFENSES



      Defendant argues that the trial court erre d in refusin g to char ge the jury with

the lesser offenses of premeditated first degree murder, including volun tary

manslaughter and criminally negligent homicide. Reasoning that there was not

adequ ate evidence of passion or provocation, the trial court refused to charge the

jury on these lesser offenses. The trial court charged second degree murder as a

lesser offense of premeditated first degree murder and charged reckless homicide

as a lesser offen se of felony mu rder.



      W e note that the Defendant failed to include this issue in his motion for a new

trial. Tennessee Rule of Appellate Procedure 3(e) requires that issues in a motion

for new trial be “specifically stated . . . otherwise such issues will be treated as

waived.” W e do have the autho rity to address the trial court’s failure to charge the

jury on ap propr iate lesser offenses as p lain error.     Tenn. R . Crim. P. 52(b).

Howeve r, for the reasons sta ted hereafter, we find no plain error.



      The Defendant was convicted by the jury of second degree murder, felony

murder and especially aggravated robbery. The trial court merged the offense of

                                          -20-
second degree murde r into the conviction for mu rder in the perpe tration of a felony.

Likewise, even if the jury had been charged with voluntary manslaughter and

crimin ally negligent homicide and had delivered a guilty verdict on each of those

counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convictions

would have been merged by the trial court into the conviction for felony murder. The

result would have been the same as Defendant’s current conviction for felony

murder. There fore, any e rror in failing to charge these offenses is harmless. Tenn.

R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).



                                P ROSECUTORIAL MISCONDUCT



       Defendant asserts in his brief that the State’s prosecutor conducted him self

inapp ropria tely throug hout th e trial by fa iling to co mply with discov ery, im perm issibly

communicating with a witness during trial recess, and noting Defendant’s expunged

conviction during the trial. Defendant’s motion for new trial specifically asserts that

the trial court erred “in allowing the State to argue during the sentencing phase,

matter which was outside the scope of the aggravating factors presented by the

State.” There is no mention in his motion for new trial of any communication by the

prosecutor with a witness during the trial or of any failure by the State to com ply with

discovery. During the Defendant’s hearing on the motion for new trial, his counsel

orally requested that the portion of his motion referencing the “sentencing phase” of

the trial be struck as the D efenda nt receive d the m inimum senten ce with regards to

all counts. A s the De fendan t’s rema ining ass ertions of p rosecutorial misconduct

were not sp ecifica lly includ ed with in his m otion fo r new tr ial, this issue is not pro perly

before this court and is, therefore, waived. Tenn. R. App . P. 3(e); State v. Clinton,

754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).

                                              -21-
       After a thorough review of the law and the records in the case sub judice, we

affirm the ju dgme nt of the trial co urt.



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
PAUL G. SUMMERS , Judge




                                             -22-
