         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 26, 2001 Session

                STATE OF TENNESSEE v. DEMETRIUS HOLMES

                   Direct Appeal from the Criminal Court for Knox County
                        No. 67734 Richard R. Baumgartner, Judge



                                 No. E2000-02263-CCA-R3-CD


A Knox County jury convicted the defendant of aggravated robbery, and the trial court sentenced
him as a Range I offender to eleven years incarceration. The defendant now appeals and raises the
following issues: (1) whether the trial court erred by not granting a mistrial when a detective
improperly testified that the Defendant was “well known for home invasions,” (2) whether the state
failed to disclose fingerprint evidence in a timely fashion, and (3) whether sufficient evidence
supported the defendant’s conviction for aggravated robbery. Finding that the trial court erred in
denying the motion to declare a mistrial, we reverse the judgment of the trial court and remand for
a new trial.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J.,
joined. ROBERT W. WEDEMEYER , J., filed a dissenting opinion.

Keith E. Haas, Sevierville, Tennessee, for the Appellant, Demetrius Holmes.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                 The defendant, Demetrius Holmes, was charged with the aggravated robbery of Sam
Love. Prior to trial, the trial court granted the defendant’s motion in limine and instructed the state
to refrain from mentioning or using in evidence any prior bad acts that the defendant may have
committed and any convictions that the defendant obtained prior to the charge in this case. See
Tenn. R. Evid. 404(a), (b). The defendant also filed a pretrial motion to dismiss in which he alleged
that the state failed to disclose exculpatory evidence in a timely manner. The trial court denied this
motion.
               The victim, Sam Love, testified at trial that on July 28, 1998 at around 1:00 or 1:30
p.m., a black male came to his apartment door. The inner door was open, but the glass storm door
was closed. The victim’s visiting friend, Kathy Williams, asked Love to go to the door because she
did not recognize the man standing outside the door. The man at the door asked for directions, and
when Love opened the door slightly, the man “snatched the door open” and pulled out a silver-
colored gun. Love grabbed the intruder and struggled with him. After the intruder yelled for help,
a second person, who had been outside until this point, took the gun, and both men made Love lie
face-down on the floor. One of the men held the gun to his head and demanded money, although
Love was unsure which man told him to do so. Love gave the men approximately $52. After the
men left, Love got up as soon as he heard the door close and saw the two men heading east in a black
Jeep. The next day, in a photo lineup at the police station, Love identified the defendant as the man
who knocked on his door and robbed him.

                 Kathy Williams testified that she was at Love’s apartment on the afternoon of July
28, 1998. When there was a knock at the door, she told Love that someone was there to see him. At
the police station on the following day, she identified the defendant as the man who was at Love’s
door. Williams testified that as Love was talking with the defendant at the door, the defendant held
a silver-looking gun. Williams yelled for the man not to hurt Love and then ran out the back door.
While outside, Williams saw a black Jeep Cherokee with the driver’s side door open. Williams
testified that she saw the defendant and another man come out of Love’s apartment, get into the Jeep,
and drive away.

               The day after the robbery, James Quick of the Knoxville Police Department was
dispatched to Blount County to locate the defendant. Quick found the defendant driving a black Jeep
Cherokee. Quick searched the vehicle and found a Lorcin .380 handgun under the driver’s seat.

               Terry Clowers, a detective in the Major Crimes Unit of the Knoxville Police
Department, testified that he investigated the robbery and interviewed the defendant on July 29,
1998. The defendant said that he could not have committed the robbery because he was “hiding out”
with a girl named “Misty” at the Comfort Inn in Strawberry Plains. In the beginning of the
interview, the defendant stated that his Jeep had been stolen; however, the defendant later told
Clowers that he had loaned the vehicle and his gun to Mike Tumblin. According to police records,
the car was reported stolen at 4:45 p.m. on the day of the robbery. Clowers stated that he let Love
and Williams see the defendant in the police station, and they both identified him as the man that
robbed Love.

                 Gerald Smith, a technician in the Investigative Support Unit of the Knoxville Police
Department, testified that none of the fingerprints obtained from Love’s storm door belonged to the
defendant. Daniel Crenshaw, Senior Evidence Technician for the Knoxville Police Department,
testified that none of the prints found matched those of the defendant or Mike Tumblin. Crenshaw
also testified that Love and Williams refused to be fingerprinted.




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                The state and the defense stipulated that Misty Moore rented a hotel room in
Strawberry Plains from July 27, 1998 until July 29, 1998 and that Moore would have testified that
on July 28, 1998, she went to work sometime between 9:00 and 11:00 in the morning and returned
that evening around 8:00. Moore also would have testified that the defendant was in the room when
she left that morning and when she returned that evening.

              Based on the evidence as summarized above, the jury convicted the defendant of
aggravated robbery.

                                   1. Denial of Motion for Mistrial

               The defendant’s first issue pertains to the trial court’s denial of a motion for mistrial
after Detective Clowers, a state’s witness, testified that the defendant had a reputation for home
invasion crimes.

                In order to understand this issue, some background information is helpful. Prior to
jury selection, on the first day of trial, the trial court heard argument on several defense motions,
including “a standard motion in limine about prior bad acts and/or convictions that Mr. Holmes may
have.” The trial court instructed the state, “Approach the bench before you raise any prior bad acts.
Get permission, Mr. Green. The rule requires that.” The record indicates that Detective Terry
Clowers was present in the court room when the trial court made this ruling.

                Later, during cross-examination of Detective Clowers, defense counsel asked
Clowers, “Why did you put a BOLO out on Kamikas Cates?” Clowers responded, “Kamikas Cates
is well known for home invasions, just as Meechi is.” “Meechi” is a nickname for the defendant that
was used numerous times during the trial. The defense moved for a mistrial, alleging that this
comment by Detective Clowers violated the trial court’s ruling on the motion in limine pertaining
to prior bad acts. The trial court ruled that the statement did not refer to a specific prior bad act but
was an expression of the officer’s opinion of the defendant. The trial court did not declare a mistrial
but instructed the jury that Detective Clowers’ comment was to be disregarded as “unsubstantiated
opinion.” The defendant argues that Detective Clowers’ comment was so prejudicial to the
defendant that the curative instruction failed to ensure that the defendant would receive a fair trial.

                In order to resolve this issue we must first determine whether the evidence of the
defendant’s reputation for committing home invasion crimes was admissible, and if not, whether its
injection into the evidentiary arena necessitated a mistrial.

                 Tennessee law provides that evidence of a person’s character or a trait of character
is not admissible for the purpose of proving action in conformity with the character or trait on a
particular occasion. Tenn. R. Evid. 404(a). Evidence of other crimes, wrongs, or prior bad acts is
not admissible to prove the character of a person in order to show action in conformity with the
character trait. Tenn. R. Evid. 404(b). Because prior bad acts may be admissible for other purposes
and Tennessee Rule of Evidence 404(b) requires a hearing outside the jury’s presence, the trial


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court’s ruling that the prosecutor must first seek permission before eliciting evidence of prior bad
acts was proper.

                When Detective Clowers informed the jury that the defendant had a reputation for
burglarizing homes or robbing the occupants, he injected inadmissible evidence into the trial. This
evidence was particularly damaging because it informed the jury that the defendant had a reputation
for committing crimes similar to the offense on trial. State v. Rickman, 876 S.W.2d 824, 828 (Tenn.
1994) (The use of evidence of prior crimes similar to the offense on trial is particularly hazardous
because it carries with it the risk that the jury will convict the defendant based upon his propensity
to commit the crime, rather than upon the strength of the state’s evidence.). Prohibiting the use of
his sort of evidence is at the very heart of Rule 404(b). See, e.g., State v. Moore, 6 S.W.3d 235, 237
(Tenn. 1999). Moreover, the state offers no rationale that a “material issue exists other than conduct
conforming with a character trait” that would justify the use of the information pursuant to Rule
404(b)(2), and we discern no such issue. See generally State v. McCary, 922 S.W.2d 511, 514
(Tenn. 1996) (evidence of a criminal defendant's character may become admissible when it logically
tends to prove material issues which have been divided into three categories: (1) the use of "motive
and common scheme or plan" to establish identity, (2) to establish the defendant's intent in
committing the offense on trial, and (3) to "rebut a claim of mistake or accident if asserted as a
defense"); State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992) (“Only in an exceptional
case will another crime, wrong, or bad act be relevant to an issue other than the accused's
character.”). Furthermore, filtering the information via characterizing it as the officer’s opinion does
not sanitize the otherwise inadmissible information and is, therefore, unavailing. The bottom line
is that the information has no legitimate probative value and was extremely prejudicial. Had the
defendant the opportunity to obtain a pre-admission Rule 404(b)(1) hearing, the trial court would
have been constrained to exclude the evidence.

               Having determined that the evidence offered by Detective Clowers was inadmissable,
we therefore consider whether the trial court erred in denying the defendant’s motion for a mistrial.
 The granting or denial of a mistrial is a matter within the sound discretion of the trial court. State
v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This court will not disturb such a
decision absent a finding of an abuse of discretion. State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996). "The purpose for declaring a mistrial is to correct damage done to the judicial
process when some event has occurred which precludes an impartial verdict." Id. A trial court
should grant a mistrial only when it is of "manifest necessity." Id.; Arnold v. State, 563 S.W.2d 792,
794 (Tenn. Crim. App. 1977).

                 Although Tennessee courts do not apply any exacting standard for determining when
a mistrial is necessary after a witness has injected improper testimony, we have often considered (1)
whether the improper testimony resulted from questioning by the state, rather than having been a
gratuitous declaration, (2) the relative strength or weakness of the state’s proof, and (3) whether the




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trial court promptly gave a curative instruction.1 See State v. William Dotson, No. 03C01-9803-CC-
00105, slip op. at 9 (Tenn. Crim. App., Knoxville, June 4, 1999). That analytical framework is
helpful in the case at bar.

                The prosecution was not at fault in eliciting the evidence in this case, as Detective
Clowers made his improper declaration during cross-examination by the defense. However, as a law
enforcement officer testifying for the prosecution, Detective Clowers is an agent of the state. The
record reflects that he was in the courtroom when the judge ruled that the prosecutor must obtain
permission before introducing bad act evidence about the defendant. Through his spontaneous
declaration, Detective Clowers circumvented the court’s ruling as well as the rules of evidence.

                 The strength of the state’s case was not great, particularly as compared with the
magnitude of this error. The defendant’s trial strategy was that he was not the offender. The
soundness of the state’s case rested upon credibility of the victim and his female friend. The
defendant challenged their identifications of him. The absence of the defendant’s fingerprints on the
victim’s door arguably belies Love’s and Williams’ identifications of the defendant as the offender.
 Thus, the state’s case is not so overwhelming as to render ineffectual the egregious violation of Rule
404(b). See State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999) (“the line between harmless and
prejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard
required to convict”) (citation omitted). In our view, the evidentiary error may well have been the
deciding factor for the jury, allowing them to conclude that “because he did it once, more than likely
he did it again.” State v. Roberts, 703 S.W.2d 146, 147 (Tenn. 1986) (emphasis in original).

                Finally, we consider whether the evidentiary error was abated by the judge’s
cautionary instruction. The judge declined to give the instruction contemporaneously to the
objection to the testimony but waited until the conclusion of the cross-examination and redirect
examination of the witness (which incidentally closed the state’s proof in the case). Compare
William Dotson, slip op. at 11-12 (manifest necessity for mistrial existed because jury was not given
curative instruction regarding improper evidence until the following day) with State v. Hall, 976
S.W.2d 121, 147-48 (Tenn. 1998) (appendix) (improper evidence of defendant’s prior crime did not
require granting of mistrial because trial court immediately gave a curative instruction). More
importantly, the instruction given was not curative. While instructing the jury to disregard the
remark about the defendant having a reputation for home invasions, the trial court premised its
directive upon the remark being “Office Clowers’ unsubstantiated opinion.” A reasonable juror may
well have concluded that had the opinion been substantiated -- or that if it were in fact based upon
substantiated facts -- the information it imparted to the jury would be justiciable. The trial court
failed to indicate disapproval of the information, except in the form in which it was delivered. The
jury was not informed of the impermissible danger of propensity evidence. It was not told that the
remark was inadmissible evidence and that its inadmissibility formed the basis for the requirement


         1
         These factors are non-exclusive and may not be pertinent in every case. William Dotson, slip op. at 9; see State
v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (determination of prop riety of mistrial is not sub ject to m echanistic
determination and should be made on the facts of each individual case).

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that they disregard the remark. This particular instruction failed to abate the prejudicial impact of
the testimony.

               When the foregoing factors are considered, the prejudicial effect of the improper
evidence is palpable. We conclude that the opportunity for an impartial verdict was lost, thereby
creating manifest necessity for a mistrial. See Williams, 929 S.W.2d at 388. The trial court should
have granted the defendant’s motion for a mistrial. See, e.g., State v. Blankenship, 214 Tenn. 355,
410 S.W.2d 159 (1966) (trial court should have granted mistrial after state’s witness testified that
defendants had at first pleaded guilty but later withdrew their pleas); State v. David Johnson, No.
W1998-00687-CCA-R3-CD, slip op. at 10-15 (Tenn. Crim. App., Jackson, Mar. 14, 2001) (in
context of defendant’s double jeopardy challenge, appellate court held that trial court had properly
granted mistrial after prosecutor’s improper questioning of witness resulted in testimony that the
defendant “just got out of jail” and “always goes around robbing people”). Accordingly, we must
reverse the conviction and remand the case for a new trial in which the improper, inflammatory
evidence of the defendant’s reputation for committing home invasion crimes is not injected.

                                     2. Exculpatory Evidence.

                The defendant argues that the state failed to disclose fingerprint evidence in a timely
fashion. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), defense counsel requested the results
of “any scientific tests or experiments” performed by or known to the state and “[a]ll information
of whatever form, source or nature which tends to exculpate the defendant.” However, the state did
not provide the results of fingerprint analyses conducted on Love’s storm door until the week before
trial.

               In order to establish a due process Brady violation, the defendant must establish the
following:

       1. The defendant must have requested the information (unless the evidence is
       obviously exculpatory, in which case the state is bound to release the information
       whether requested or not);
       2. The state must have suppressed the information;
       3. The information must have been favorable to the accused; and
       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). However, a delayed disclosure of exculpatory
information, as opposed to a complete failure to disclose, may not be a Brady violation unless the
delay causes prejudice. State v. Joan Elizabeth Hall, No. 01C01-9710-CC-00503 (Tenn. Crim. App.,
Nashville, Jan. 28, 1999). In cases of delayed disclosure, the inquiry is whether the delay prevented
the defense from effectively preparing for and presenting the defendant’s case. State v. Caughron,
855 S.W.2d 526, 548 (Tenn. 1993); see United States v, Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3384 (1985) (failure to respond to Brady request may impair adversary process because defense



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“might abandon lines of independent investigation, defenses, or trial strategies that it otherwise
would have pursued”).

                In this case, the defendant failed to show that he was prejudiced by the delay. The
information was provided to him the week before trial, and he was able to use it at trial. Defense
counsel thoroughly cross-examined Detective Clowers at trial and established that none of the
fingerprints taken from the door matched those of the defendant. We find no error in the Brady
claim. At any rate, the disclosure was made well in advance of the retrial that we have now ordered
on remand.

                                  3. Sufficiency of the Evidence.

                The defendant argues that insufficient evidence was presented at trial to convict him
of aggravated robbery. In particular, he claims that the only direct evidence regarding the
identification of the perpetrator was the testimony of Sam Love and Kathy Williams, and he
contends that their statements were contradictory.

               When an accused challenges the sufficiency of the evidence, an appellate court’s
standard of review is whether, after considering the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 In determining the sufficiency of the evidence, this court should not re-weigh or re-
evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may
this court substitute its inferences for those drawn by the trier of fact from the evidence. State v.
Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at
859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt removes the
presumption of innocence and raises a presumption of guilt, the convicted defendant bears the
burden of showing that the evidence was legally insufficient to sustain a guilty verdict. Id.

                Even though issues of credibility were raised at trial, the evidence was clearly
sufficient to support the defendant’s conviction for aggravated robbery. Both Love and Williams
identified the defendant in a photo lineup and in court as the man who robbed Love. Love testified
that when the robbers left his apartment, he looked outside and saw the men drive away in a black
Jeep. Williams, who was already outside when the robbers fled, testified that she also saw two men


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come from Love’s apartment and get into a black Jeep Cherokee. Love and Williams also both
testified that the man who knocked on the door had a silver-colored gun. When the defendant was
found by police, he was driving a black Jeep Cherokee, and in it police found a silver-colored gun
similar to the one described by Love and Williams.

               The jury obviously accredited the testimony of the state’s witnesses. Although there
is some discrepancy in the witnesses' descriptions of the defendant, it is within the jury's province
to determine the credibility of the witnesses and to resolve the factual issues raised by the evidence.
State v. Williams, 920 S.W.2d 247, 254 (Tenn. Crim. App. 1995).

               Because the trial court should have declared a mistrial, the judgment of the trial court
is reversed, and the case is remanded for a new trial.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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