FILED

May 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH 1997 SESSION

STATE OF TENNESSEE, )

) No. 01C01-9605-CC-00186

Appellee, )

) Houston County

v. )

) Honorable Robert E. Burch, Judge

)

BASIL MATHIS, ) (Attempted First Degree Murder)

)

Appellant. )

For the Appellant: For the Appellee:

Clifford K. McGown, Jr. (trial only) John Knox Walkup

113 North Court Square Attorney General and Reporter

Waverly, TN 37185 and

and Daryl J. Brand

Jim Sowell (appeal only) Assistant Attorney General

118 North Main Street 450 James Robertson Parkway

Dickson, TN 37055 Nashville, TN 37243-0493

Dan Mitchum Alsobrooks

District Attorney General

and

George C. Sexton

Assistant District Attorney General

Second Floor

Humphreys County Courthouse

Waverly, TN 37185

OPINION FILED: 

AFFIRMED

Joseph M. Tipton

Judge

O P I N I O N
1

 In a separate proceeding, Jerry Mathis was convicted of the murder of Talmadge Agee and

the attem pted m urder of Allen Orta go and Georg e Powe ll. 

2

Defendant, Basil Mathis, was convicted by a jury in the Houston

County Circuit Court of attempted first degree murder, a Class A felony, and

sentenced to twenty (20) years in the Tennessee Department of Correction. In this

appeal as of right, he raises the following issues for our review:

(1) whether the evidence was sufficient to sustain the 

conviction for attempted first degree murder; 

(2) whether the trial court erred by admitting evidence 

of a pre-trial statement by a witness under the recorded 

recollection exception to the hearsay rule;

(3) whether the trial court erred in denying a motion

for mistrial due to evidence of alleged prior threats 

by the defendant; and

(4) whether the trial court erred in denying a motion

for mistrial due to the death of a juror’s father just

prior to deliberations.

We do not believe that any of these issues merit relief, and we affirm the judgment

of the trial court. 

FACTS

On October 3, 1992, George Powell, Allen Ortago and Talmadge

Agee were conferring along the side of a road in Houston County. Upon seeing

Jerry Mathis and the defendant approaching in their vehicle, Powell placed a pistol

in his pocket because he had a prior altercation with the Mathises. All five men

engaged in casual conversation beside the road. The defendant picked up a pistol

he saw in the back of Agee’s truck. After he put the pistol back, Jerry Mathis picked

it up and, without provocation, shot and killed Agee. Jerry Mathis shot several more

times and wounded Ortago and Powell as they were fleeing.1 After running some

distance, Powell fired two shots and his pistol jammed. Powell continued to run

and heard Jerry Mathis yell, “kill the son of a bitches, kill the son of a bitches!” 

Powell looked back and observed the defendant running toward the defendant’s car

and then saw the defendant come back around the vehicle. Powell heard five more

shots. Powell was not hit by these shots, however. 
3

A neighbor heard eleven or twelve shots being fired. Some of the

shots had a different sound, but it sounded as if all shots came from a small caliber

weapon. 

Wayne Powell, a cousin of Jerry Mathis and the defendant, talked to

both of them shortly after the shooting. He stated that the defendant admitted to

“shooting at the ones running off.” The defendant also stated he was kidded by

Jerry Mathis “for emptying his gun and not hitting anybody.” Both Jerry Mathis and

the defendant were laughing about it. Wayne Powell also confirmed that he had

seen the defendant with a .38 caliber revolver on several prior occasions. 

Scientific testing for gunshot residue conducted on the defendant

revealed that he “could have fired, handled, or was near a gun when it fired.”

The defense presented no proof at trial.

SUFFICIENCY OF THE EVIDENCE

In Tennessee, great weight is given to the result reached by the jury in

a criminal trial. A jury verdict accredits the state’s witnesses and resolves all

conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to

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

may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.

1978). Moreover, a guilty verdict removes the presumption of innocence which the

appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of

overcoming this presumption of guilt. Id. 

Where sufficiency of the evidence is challenged, the relevant question

for an appellate court is whether, after viewing the evidence in the light most
4

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime or crimes beyond a reasonable doubt. T.R.A.P. 13(e);

Jackson v. Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401

(Tenn. 1996). The weight and credibility of the witnesses’ testimony are matters

entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). 

In this case, there was ample evidence for the jury to convict the

defendant of the attempted first degree murder of George Powell. Jerry Mathis,

after firing several shots, was heard to yell, “kill the son of a bitches”; the defendant

was seen going to his car and coming back around the car; and five more shots

were then fired. Furthermore, the defendant’s statements to Wayne Powell

acknowledging his participation in the shooting were also before the jury. Certainly,

the jury had sufficient evidence before it to conclude that the defendant acted

intentionally, deliberately and with premeditation in an attempt to kill George Powell. 

This issue is without merit.

RECORDED RECOLLECTION

The witness, Wayne Powell, testified on direct examination that he

spoke with the defendant shortly after the shooting. The witness then stated that

during the conversation the defendant did not say anything about shooting at

anybody. The prosecutor then showed the witness his sworn statement that he had

given to the Tennessee Bureau of Investigation (TBI). In this statement, Powell

said that the defendant admitted to the shooting and had laughed about not being

able to hit anyone. After reviewing this statement, Powell then testified that the

defendant said that he had gone to the car to get his gun and shot once or twice at

the “one running.” 

Subsequently, Powell stated that he could not remember all the

statements he made to the TBI. He further testified that the statement he gave to
5

the TBI would have been correct, but that he was unable to “remember everything

that’s in there, today.” At this point, the prosecutor read to Powell from his pretrial,

written, sworn statement in which Powell said that the defendant had admitted to

the shooting and was laughing about it.

The admissibility of this evidence is controlled by Rules 612 and

803(5), Tenn. R. Evid. The first rule concerns present recollection refreshed, and

the latter concerns the past recollection recorded hearsay exception. There is a

thin line between present recollection refreshed and past recollection recorded.

Neil P. Cohen et al., Tennessee Law of Evidence, § 612.1, at 401 (3d ed. 1995).

In this case, when Powell first testified that the defendant had not

admitted to the shooting, he was immediately shown his statement to the TBI. After

reading that statement and without the statement being read into or admitted into

evidence, Powell testified that the defendant had made such an admission. This

evidentiary issue is controlled by Rule 612, present recollection refreshed. 

However, a writing can be used for this purpose only if a witness’ memory requires

refreshing. See, Tenn. R. Evid. § 612, Advisory Commission Comments. At the

point Powell was shown the statement, it had not been established that his memory

needed refreshing. Accordingly, the evidence at the time of its admission did not

qualify under Rule 612. However, it became evident later in Powell’s testimony that

he had insufficient recollection at trial to testify fully as to what the defendant told

him. Thus, the factual foundation needed to refresh the witness’ memory was

ultimately shown, a circumstance that would still justify the previous refreshing. 

See Tenn. R. Evid. 104(b).

Also, Powell’s testimony reflects that he claimed little recollection at

trial regarding what the defendant told him, even when shown his former statement. 

Moreover, it was apparent that his statement to the TBI was made at a time when

the matter was fresh in his memory, and his statements accurately reflected his
6

knowledge at that time. It was at this point that the state read into evidence

pertinent portions of the witness’ statement to the TBI confirming that the defendant

had made incriminatory admissions. The statement itself was not introduced as an

exhibit. These circumstances met all of the requirements of Rule 803(5), the

recorded recollection exception to the hearsay rule. There was a written record; it

concerned a matter about which the witness once had knowledge; the witness at

trial had an insufficient recollection to testify fully and accurately; the statement was

“adopted” (signed) by the witness; it was made while the matter was fresh in his

memory; and it accurately reflected his knowledge. Neil P. Cohen et al.,

Tennessee Law of Evidence, § 803(5).2, at 557-58 (3d ed. 1995).

The trial court’s premature allowance of Powell’s examination of his

pretrial statement to refresh his recollection was completely harmless. T.R.A.P.

36(b). Likewise, because the content of the statement was read pursuant to Rule

803(5), Tenn. R. Evid., the evidence was properly before the jury. This issue is

without merit. 

ALLEGED THREATS BY DEFENDANT

 George Powell testified during direct examination that the deceased,

Talmadge Agee, had a meeting with Jerry Mathis and the defendant “about them

passing threats on to us . . . .” After an objection, the trial court in a jury-out hearing

determined that the witness should not go into prior incidents. When the witness

was subsequently asked why he had ejected the clip to his gun after firing the two

shots, he stated “. . . since the time that I had heard about some threats . . . .” An

objection was made mid-sentence and sustained, and the jury was given extensive

instructions that the case must be decided on the basis of what happened on the

day in question and not before that day. The defendant contends the trial court

erred in not granting his request for a mistrial. 
7

The decision of whether to grant a mistrial is 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 that decision absent a finding of abuse of

discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams,

929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). Furthermore, we presume that the

jury followed the trial court’s explicit instructions not to consider the inappropriate

comment. State v. Smith, 893 S.W.2d 908, 923 (Tenn. 1994). In light of the limited

nature of the offending testimony and the trial court’s prompt curative instruction,

the trial court did not abuse its discretion in refusing to grant a mistrial. See State v.

Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993).

DEATH OF JUROR’S FATHER

At the conclusion of all the proof, the trial court adjourned after 4:00

p.m. on a Friday afternoon with instructions for the jury to return the following

Tuesday morning. When the jury returned on Tuesday morning, the trial court

learned of the death of one of the juror’s father. The funeral was to be that

afternoon. Upon inquiry by the trial court, the juror stated she would be able to

deliberate as long as she could leave by 1:00 p.m. The trial court advised the juror

that if they were not finished with deliberations by 1:00 p.m., they would stop so that

the juror could attend the funeral. The trial court determined the juror was “perfectly

competent” to continue to sit as a juror. The jury retired for deliberations at 10:50

a.m. and returned with its guilty verdict at noon. 

The decision of whether to declare a mistrial when a juror is informed

of the death of a member of his or her family rests within the sound discretion of the

trial court. See State v. McCray, 614 S.W.2d 90, 93 (Tenn. Crim. App. 1981). In

this case, the trial court questioned the juror as to her ability to continue, and she

responded in the affirmative. The juror was informed that deliberations would

cease at such time as she had to leave for the funeral. We conclude that the trial

court’s discretion was properly exercised in refusing to declare a mistrial. 
8

In consideration of the foregoing and the record as a whole, the

judgment of the trial court is affirmed. 

 

Joseph M. Tipton, Judge

CONCUR:

____________________________

Jerry L. Smith, Judge

____________________________

Joe G. Riley, Judge