# FILED
May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 SESSION

STATE OF TENNESSEE, ) ) No. 01C01-9605-CC-00186 Appellee, ) ) Houston County v. ) ) Honorable Robe rt E. Burch, Judge ) BASIL MATHIS, ) (Attempted First Degree Murder) ) Appellant. )
For the Appellant : For the Appellee : Cliffor d K. McGown , Jr. (trial only) John Knox Walkup 113 North Court Square Attorney General and Repor ter Waverly, TN 37185 and and Daryl J. Brand Jim Sowell (appeal o nly) Assistant Attorney Gener al 118 North Main Street 450 James Robertson Parkwa y Dickson, TN 37055 Nashville, TN 37243-0493 Dan Mitchum Alsobrooks District Attorney General and George C. Sexton Assistant District A

ttorney General Second Floor Humphreys County Courthouse Waverly, TN 37185

OPINION FILED:

AFFIRMED Joseph M. Tipton Judge

O P I N I O N1 In a separate proceeding, Jerry Mathis was convicted o f the murder of Talmadge Agee and the attem pted m urder of Allen Orta go and Georg e Powe ll. 2 Defendant, Basil Mathis, w as convicted by a jur

y in the Houston County Circuit Cour

t of attempted first degree murder, a Class A felony, and sentenced to twenty (20) years in the Tennessee Department of Correction . In this appeal a s of right , he raise s the fol lowing issu es for ou r review:

(1) whether the evi dence was sufficient to sustai n the conviction for attempted first degree murder; (2) whether the trial

court erred by admitti ng evidence of a pre-trial statement by a witness under the reco rded recollection exceptio n 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 mer it relief, and we affirm the judg ment of the trial court.

FACTS

On October 3, 19 92, George Powell, Allen Ortago and T almadge Agee were conferring

along the side of a road in H ouston County. Upon seeing Jerry Mathis and the de fendant approaching in their v ehicle, Powell placed a pistol in his pocket because he had a pr ior altercation with the Mathises. All fiv e men engaged in casual conv ersation beside the road. The defendant picked up a pistol he saw in the back of Agee’ s truck. After he put the pist ol back, Jerry Mathis picked it up and, without provocation, shot and killed Agee. Jerry Mathis shot several more times and wound ed Ortago and Po well as they were fleei ng. 1 After runni ng some distance, Powell fired t wo 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 obs erved the defendant running tow ard the defendant’s car and then saw the defendant come back aroun d the vehicle. Powell heard five more shots. Powell was

not hit by these shots, how ever.3 A neighbor heard eleven o r twelve shots bei ng fired. Some of the shots had a different sound, but it sound ed 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 shooti ng. He stated that the defendant admit ted to “shooting at the ones runni ng off.” The defendant also stated he was kidded by Jerry Mathis “for empt

ying his gun and not h itting anybody.” Both Jerry Mathis and the defendant were laughing about it. Wayne Powell also confirmed that he had seen the defendant with a .38 cali ber revolver on sev eral prior occasions.
Scientific testing for g unshot residue conducted on the defendant revealed that he “could hav e 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, 80 3 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state i s 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 g uilty verdict r emoves the presumption of innocence which the appellant enjoyed at trial and raises a presumption of gui lt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the bur den of overcoming this pres umption of guilt. Id

.

Where sufficiency of the evidence is chall enged, the relevant ques tion for an appellate court is whether, after viewing the evidence in the light most4

favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable dou bt. T.R.A.P. 13(e); Jackson v. Virginia , 443 U.S. 307 (1979); State v. Abr ams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses’ testimony are matters entrusted exclusive ly 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 attempt ed first degree murder of George Powell. Jerry Mathis, after firing several s hots, was heard to yel l, “kill the son of a bitc hes”; the defendant was seen going to hi s car and coming back aroun d the car; and five more shots were then fired. Furthermore, the defendant’s state ments to Wayne Powell acknowled ging his pa rticipat ion in the shooting were also b efore th e jury. Cert ainly, the jury had sufficient evi dence before it to conclude that the defendant acted intentionally, deliber

ately and with premeditation in an attempt to kill George Powell. This issue is without merit.

RECORDED RECOLLEC TION The witness, Wayne Powell, testified on direct examination that he spoke with the defendant shortl y after the shooting. The w itness then stated that during the conversati on the defendant did not say anyth ing 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 stateme nt, Powell said that the defendant admitted to the shooting and had laughed about not bei ng able to hit anyone. After rev iewing this statement,Powell then testified that the defendant said that he had gone to the car to get his gun and shot onc e or twice at the “one running.”

Subsequently, Powell

stated that he could not remember al l the statements he made to the TBI. He further testified that the statement he gav e to5

the TBI would have been cor rect, but that he was unabl e to “remember everythi ng that’s in there, today.” At this point, the prosecutor read to Powell from his pretrial, written, sworn s

tatement in which Powel l said that the defendant had admitted to the shooting and was laug hing about it.

The admissibility of this evidence is controlle d by Rules 612 and 803(5), Tenn. R. Evid. The fir st 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 pas t recollection recorded. Neil P. Cohen et al., Tennessee Law of Evidence , § 612.1, at 401 (3d ed. 1995).

In this case, when Pow ell first testified that the defendant had not admitted to the shooting, he w as immediately shown hi s statement to the TBI. After reading that statement and w ithout 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 Rul e 612, present recollection refreshed. However, a wr

iting can be used for this pu rpose only if a witnes s’ memory requires refreshing. See , Tenn. R. Evid. § 612, Adv isory Commission Comments . At the point Powell was shown the statement, it had not been established that his me mory needed refreshing. Accordin gly, the evidence at the time of its admission did not qualify under Rule 612. However, it became ev ident later in Powell ’s testimony that he had insufficient recollection at trial to testify fully as to what the def endant told him. Thus, the factual foundation needed to re fresh the witness’ memory was ultimately shown, a c

ircumstance that would s till justify the prev

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

Also, Powell’s testi mony reflects that he claimed l ittle recollection at trial regarding w

hat the defendant told him, even w hen 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 reflecte d his6

knowledge at that time. It was at this point that the state read into evidence pertinent portions of the wi tness’ statement to the TBI confirmin g that the defendant had made incriminatory admis sions. The statement itself w as 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 whic h the witness once had know ledge; the witness at trial had an insufficient recol lection 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 wa s completely harmless. T.R.A.P. 36(b). Likewise, because the content of the statemen t 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 DEFENDA NT George Powell testi

fied during direct exami nation that the deceased, Talmadge Agee, had a meeting w ith Jerry Mathis an d 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. W hen the witness was subseq uently ask ed why he ha d ejected the clip to his gun af ter firin g the two shots, he stated “. . . sinc e the time that I had heard about some th reats . . . .” An objectio n was made mid-sent ence and sustaine d, and th e jury was given extensive instructions that the case must be decided on the basis of w hat happened on the day in question and not before that day. The defen dant contends the trial court erred in not granting

his request for a mistri al.7 The decision of whether to gr ant a mistrial is wi

thin the sound discretion of the trial cour t. State v. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This court wi ll not disturb that decis ion 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). Further more, we presume that the jury followed the tr

ial court’s explic

it instructions not to co nsider the inappropriate comment. State v. Smith , 893 S.W.2d 908, 923 (Tenn. 1994). In light of the l imited nature of the offending testimony and the trial court’s prompt cur ative instruction, the trial court did not abus e its discretion in re

fusing to grant a mistri al. See State v. Dick , 872 S.W.2d 938, 94 4 (Tenn. Crim. App. 1993).

DEATH OF JUROR’S FATHER At the conclusion of all the pr oof, the trial court adjourned after 4:00 p.m. on a Friday afternoon w ith instructions for the j ury to return the follow ing 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, th e juror stated she woul d 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 finis hed with deliberations by 1:00 p.m., they woul d stop so that the juror could attend the funeral. The trial court determ ined the juror was “perfectly competent” to continue to sit as a juror. The jury r

etired for deliberations at 1 0:50 a.m. and returned with its guilty verdic

t at noon.

The decision of whether to decl are a mistrial when a j uror 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 cour t questioned the juror as to her ability to conti nue, and she responded in the affirmative. The juror was informed th at deliberations would cease at such time as she had to l eave for the funeral. We conclude that the trial court’s discretion w

as properly exercised in refusing to declar e a mistrial.8 In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipto n, Judge

CONCUR:

____________________________ Jerry L. Smith, Jud ge

____________________________ Joe G. Riley, Judge