# FILED July 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1999

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. ) (FIR ST DEGREE MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL E. SCHOLL JOHN KNOX WALKUP 200 Jefferson Avenue, Suite202 Attorney General& Reporter Memphis, TN 38103 R. STEPHEN JOBE Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashvill e, TN 37243 ELIZA BETH T. RI CE District Attorn ey Ge neral CHRISTOPHER MA RSHBURN Assistant Distri ct Attor ney General 302 M arket Stre et Somervill e, TN 38068

OPINION FILED ________________________ REVERSED AND REMANDE D THOMAS T. WOODALL, J UDGE-2- 

# OPINION

In this case, the Defendant, Corey Lemont Powell, appeals as of right from the judgments of convicti on for fel ony murder and especi ally aggr avated robbery. Indicted and triedfor fel ony murder, premedi tated fi rst degree murder , and espe cially aggravated r obbery, t he jury, on these counts, found him guil ty of felony murder, second degree murder, and especially aggra vated robbe ry. The trial court merged the second degree murder convicti on with the felony murder and Defendant was given alife senten ce. The trial court sen tenced him to serve fifteen (15) years forthe co nviction of esp ecially aggrava ted robb ery, conc urrent to th e sente nce of life imprison ment. Defendant presents nine (9) issues for appe llate review. This cou rt initially affirme d the c onvictio ns. Th e Def enda nt then timely file d a Pe titio n to Rehea r, which was granted. The originalopinion and judgment were vacated. The court ordered the t rial cour t to mak e cert ain find ings o f fact reg arding Defe ndan t’s issue challeng ing adm issibility of his co nfession
. After f urther briefi ng following the trialcourt’s supplemental f indings of fact, t he case was then rear gued. After review of the entire rec ord, bri efs and arguments of counsel, and appl icable l aw, we find thatsuppre ssion of Defe ndant’s confession is r equired, and we t herefore reverse the judgm ents of the trial court an d rema nd this ca se for a ne w trial.

The issues presented by Defendant are as follows: 1) whetherthe trial court er red in de nying D efenda nt’s motio n to suppre ss his state ment; 2) whetherthe tri al court erred in r efusing Defendant

access to the results of a polygr

aph test for use as evi dence;-3- 3) whetherthe trialcourt err ed by refusi ng to suppress ev idence of the mu rder wea pon an d the ba llistics test; 4) whetherthe tri al court er red in denyi ng Defendant’s moti on regarding the stri king of speci fic j urors and motion for a change of venue; 5) whetherthe trial c ourt er red in denying Defendant ’s motion for a mistrial du e to adm ission of ev idence of Defen dant’s arre st; 6) whetherthe tri al cou rt er red in ref using to admit testimony regarding Defe ndan t’s restri cted access to the telephon e during police quest ioning; 7) whetherthe tri al court err ed in overr uling Defendant’s motion for a judg men t of acq uittal; 8) whetherthe tri al court er red byrefusing t o charge lesser

included offenses of

premeditated f irst degr ee murder; and 9) wheth er the trialcourt erred by all owing prosecutorial misco nduc t during the trial.

F ACTS

Bess ie Russ ell, wife of Don Russel l, test ified t hat he was theowner and operator of Russell’ s Grocery located in Hickory Wyth e, a rural are a of Faye tte County. The store had been open since April1947. In May 1994, Don Russell was seventy-f

our (74) years old. Ru ssell and his wife lived ne xt door t o the store, and each morn ing he rose at 5 :00a.m. to open the store. He went to the store t o eat his breakfast and read the paper, then returned to the house wi th the newspaper for her to r ead. The stor

e was open from 5: 00 a. m. un ti l 5: 30 p. m.

On May 27, 1994, Mrs. Russell awoke and di scovered that her husband had n ot yet r

etu rne d wi th t he newspa per . Sh e wal ked to t he s tor e andfou nd hi m-4-

lyi ng on his back i n a pool of bl ood. Mrs. Russel l call ed 911, and t he vict im wa s transported by helicopte r to a hospitalin Memphis where he was pr onounced dead. She noticed that the c igar box was mis sing from th e store and est imated the amount of mon ey in the bo x to be be tween $ 800.00 and $1 200.00
.

Dr. O’Brien Smith testifi ed that he perf ormed the autopsy of

thevi cti m. Dr. Smith reported that the victi m died as a result of a near gun shot

wound to the head, and he remo ved a .2 2 calib er bulle t fragm ent from the ba ck of th e victim ’s brain. From his examinat ion, Dr. Smith determined t hat the gun was between six (6) to t welve (12) inches fr

om the victi m’s head at the t ime it was f ired.

Bill Kelley, Sheriff

of Fayette County, testifi ed thathe l ed the investi gation of the victim’s murder. After arri ving at Russel l’s Grocer y on May 27, 1994, at 6:30 a.m. , She rif f Kelley determined that

a cigar box containing appro ximate ly $1200.00 had been stol en from the s tor e and that t here were no witnessesto the shooting of the vict im. On June 24, 1994, Kelley i nterrogated a potenti a l suspect, Jer ry Coleman, but after a brief inv estigati on, Coleman was eliminated as a su spect. The investi gation, i n Sheriff Kelley’ s words, came to a “dead end.” Two years lat er, in Apr il 1996, Kelley di scovered that the Defendant had told some people withi n the community t hat he was res pons ible for th e victim ’s murder. Also, the Defendant’s ni ne- shot .2 2 calib er revo lver wa s seize d from him by police during the Mid- South Fair. After t he revolver was r ecover ed from the Mem phis Police D epartm ent prop erty room, both the revolver and bu llet fragme nts from the victim’s bra in were s ent for ba llistics testing.-5- Kelley int ervi ewed t he Def endant for the f irst ti me on Ma y 1, 1 996, advising him tha t he was i nvestigat ing the vi ctim’s deat h and that t hey had recovered the De fenda nt’s pistol . After reading Defendant

his constitut ional rights, the Defendant signed a waiver of these rights and did not r equest an atto rney o r his parents to be presen t during the interview. De fendant den ied any involve ment in either the robbery

or murder of the v ictim, but did advi se Kelley that Br yant P owell and Erin Luckett

were invol ved. The Defendant was released fol lowing that inter view. After furthe r investigatio n, the De fe ndant was a gain picked up by the police for ques tioning an d was inc arcerate d on Ma y 3, 1996
. After adv ising Defenda nt of his rights for a second time, Kel leyagain inte rviewed th e Defe ndant, but not unti l May 6, 1996. Defendant again de nied his i nvolvement i n the crime.

On May 7, 1996, Sheriff Kell ey was notif ied that t he Defendant wanted to speak with him. A fter Defen dant wa s advised of his con stituti onal rights and signed a waive r form , he ag ain denie d involv eme nt in the murd er and implica ted his cou sin, “Big John,” from Memp his. On May 8 , 1996, Age nt Scott W alley f rom th e Tenness ee B ureau o f Investigatio n cam e to interview the Defe ndant u pon Sh eriff Kelley ’s request. Sheriff Kel ley verified that the Defendant wasnevermistreated or promised anything in exch ange for his statement. Kelley al so stated t hat he was neverinforme d by eithe r the Defe ndant o r his paren ts that t hey want ed or had retained an attorne y, althou gh Ke lley spo ke with Defe ndan t’s parents sever al times throughout t he investi gation.

A gent Walley testi fied that he advised Defendant of his const itut iona l rights. During the first portion of

the inter

view, Defendant

denied involvement in the-6-

crime. Followinga lunch break, Defendant ret urned to the i ntervi ew a nd gave a statementto A gent

Wall ey i n whi ch h e adm itted rob bin g andsho oti ng t he v ict im. Defendant stated that he entere d Rus sell’s Groc ery at a pprox imate ly 5:30 a.m. on May 27, 1994, with his nine- shot .22 calibe r revolve r in his rig ht front p ocke t. He told the victi m to “give [ him] the money and there w on’t be no [sic] pro blem .” The victim pulled out the gol d cigar box f rom underneath the counter, and then went to the beer cooler to get a si x-pack of Mi ller beer as Defendant requested. While turni ng around with his elbows hal fway up, t he Defen dant becam e frighte ned a nd pu lled ou t his revolver which “acc identally fired.”

W hile the Defendant’s st atement was nottape recorded, Agent Walley took notes and then wrote out a statement i n narrati ve form which Defendant read and signed after init ialingall cor rections. Sheriff Kelley r

eturned to t he ro om and read the statem ent. Wh en De fendan t affirmed th at this was indeed his statem ent, Kelley sign ed the sta temen t as a witne ss.

Ste ve Scott, an agent of the Tennessee Bureau of Investi ga tion , administeredthe ball istics testi ng on the pistol and the bullet fra gme nt. W hile Scott was unable to determine that t he bullet fragm ents were fir ed from the De fenda nt’s pistol due to damage, Scott testifi ed that all four class characteristi cs of the bul let and the pistol were a m atch. These four clas s characteri stics i ncluded the cal iber of the gun and bull et, the di rection of th e barrel t wist, t he number of lands and grooves, and the width of the l ands and grooves. While the Defendant’s weapo n could not be iso lated as th e murde r weapon, it could “cert

ainly” have been the weapon used. Agent Scott also noted t hat the pi stol required trigger pre ssure-7-

“between no rmal a nd heavy” to fire t he weapon, dependent upon whet her the weapon was cocked or uncocked when it was fir ed.

The S tate then re sted its cas e-in-chief.

Tim Adams, a friend of the Defendant ’s, testifi ed that after the victim ’s murder, the Defendant l eft town f or one or two w eeks. When the Defendant returned, he had bot h new ti resand a new

vi nyltopon h is car . J oki ngl y, Adams inquired whetherthe Defendant had “ bumped old Donn off,” but the De fenda nt only laughed in response.

Jesse Jame s Jone s testified th at he was incarcerated in a cellfacing thatof Defendant’ s. Jones made several telephone call s for theDefendant because the telephon e in Defendant’ s cell was not working.
Rodney Johnson testi fied that the Defendant never t old him that he robbed or murd ered the vi ctim. Johnson di d verif y that Defenda nt owned a .22 pistol.

Stevison Ve asey, the De fendant’s stepfa ther, testif ied that Defendant visited his moth er aroun d May 2 7, 1994
. During that visit , Veaseybought new ti res forDefen dant’s ca r. During that same visit , Veasey stated that Defendant ’s natural father put a new vinyl roof on the Defe ndant’s car.-8- M OTION T O S UPPRESS S TATEMENT

Defendant argues that his statement gi ven to the pol ice on his fi fth day of incarcerat ion should have been suppressed as a violat ion of hi s Fourth, Fi fth and Sixth Amendment rights und er the Un ited Sta tes Co nstitutio n. W hen a n acc used is afforded an ev identiar y hearing on t he merits of a motion to suppress, the findi ngs of fact made by t he trialcourt are bi nding upon the ap pellate cou rt unless the evidence containe d in the record p repond erates a gainst the se finding s. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibil ity of

the witnesses, the weight and val ue of the evi dence, and resoluti on of conflicts in the evidence are matters entrusted t

o the tri al judge asthe trier of fact.” Id . Provide d that thegreater weightof the evidence supports t he trialcourt’s findings , then thos e findin gs shall be upheld by theappellate court and t he party prevaili ng in the t rial court is en titled to the strongest legiti mate view of t he evidence and al l reasonabl e inferences whi c h may be drawn fro m that e vidence
. Id . In eval uating the correctness of the trial court’s ruling on Defendant’s pr etrialmotion to suppress, this cour t may consider the proofadduc ed both at the s uppre ssion hearin g and at trial. State v. Henning , 975 S.W .2d 290 (Te nn. 1998).

At the hearing on the m otion to suppress, Sheriff Bil l Kelley testif ied that he had the Defen dant pick ed up fo r questioni ng for the first t ime on May 1, 1996. After the Defendant

denied any i nvolvementin the cr ime and implicated others, he was released and further investi gation occur red. In its supple menta l findings of fa ct, the t rial cour

t determined t hat Defendant was i ncarcerated on May 3, 1996. The recor d reflec

ts, however , that Defendant was not quest ioned again unt il May 6, 1996,-9-

when h e again denied any involvement in t he robbery or murder of the vict im
. Regarding Defendant’s May 6 denials, Sheriff Kelley testifi ed “I k now that he [Defen dant] was blow ing hot air a t me ag ain and I just to ok t he notes and then I locked him back up .” (Emphas is added).

We note the chro nology o f events that Defendant was apprehended on May 1 and released af ter denyi ng involvement in the cr imes. Two days later he was again taken into custod y, but thi s ti me he was inca rcerated for three (3 ) days before being questioned on May 6, when he again denied hi s partici pation in cri minal acts. He was pr omptly “ locked up” agai n. There had been no j udicialdeterminati on of proba ble cause that Defend ant had committed t h e crimes. As set forth above, Defendant confessed on May 8, 1996. No j udicial determinati on of probable cause to arre st Defe ndan t was m ade u ntil after the May 8 confes sion.
First, we will address the Defendant’ s contenti on that hi s confession was obtained in violation of h is Sixth Am endm ent right to c ounse l. T he Sixth Amendment right to c ouns el doe s not a ttach u ntil the ad versari al judi cial process has begun. Michigan v. Jackson , 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1986) (ci tations omitted ) ; State v. Stephenson , 878 S.W.2d 530, 547 (Tenn. 1994). The lo ng-es tabli shed l aw in Tennessee for t he initi ation of t he adversari al judici al process is a t t he t ime of the fil ing of the formal charge, such as an arrest warran t, indictme nt, presentment, or prelimina ry heari ng in cases where a warrant was not obtain ed prior to th e arrest. State v. Mitch ell , 593 S.W.2d 280, 286 (Tenn. 1980), cert
. denied , 449U. S. 845 (198 0); State v. Butler , 795 S.W.2d 680, 685 (Tenn. Crim. App . 1990). It is clear from the re cord that Defendan t had not been-10-

forma lly cha rge d at

theti me he gave his statem ent. The refore D efenda nt’s right to couns el had no t yet attache d, so no v iolation of the Sixth Am endm ent occu rred.

Defend ant urges this court to s uppress his statement as invo lunt ar y based upon denial of

the right

to counsel during police interr ogation pursu ant to the Fifth Ame ndment . If a s uspect requests that counselbe present duri ng policeiniti ated custodialinterr ogation, t hen police must cease questioni ng until counsel for that susp ect is pres ent. Miranda v. Arizona , 384 U.S. 436, 444- 45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) ; Edwar ds v. Ari zona , 451 U.S . 477, 482 , 101 S.C t. 1880, 1883, 6 8 L.Ed.2 d 378 (1 981); State v. Step henson , 878 S.W.2d at 547-48. The Defendant waived his ri ght to counselver bally and/ or in writi ng on each occasion when he was in terrog ated b y the po lice. Th erefor e, his waiver i s suffi cient forthe police to have assumed he did not invokehis ri ght to counselunder the Fifth Ame ndme nt.

The Defendant asserts tha t at t he time he gave hi s statement to the police he had been incarc erated for fi ve ( 5) d aysand that t his amou nt of t ime violated the Fourth Am endm ent righ t to prom pt judic ial dete rmina tion of p robab le cause after a wa rrantless a rrest. The State concedes th at Defendantwas detained fora period of more than fo rty- eight (48) hours, and that therefore, t here was a violat ion of the Fo urth Am endm ent. See Coun ty of Riversid e v. McLau ghlin , 500 U.S. 44, 56, 111 S.Ct. 16 61, 167 0, 114 L .Ed.2d 4 9, 63 (19 91); State v. Huddleston , 924 S.W.2d 666, 671-73 (Tenn. 1996) . In Huddleston , our st ate suprem e court determined that the “fruit of t he poiso nous tre e” analys is is to be ap plied to determine whether a statement obtained in violat ion of the Fourth Amendment must-11-

be suppre ssed. Huddleston , 924 S.W.2d at 674. The quest ion is “whether [t he st ateme nt] ‘was sufficiently an act of free w ill to purge the primary t aint of th e unlawful invasion.’” Brow n v. Illinois , 422 U.S. 590, 598, 95 S.Ct. 2254, 225 9, 45 L.Ed.2d 416 (1975 ) ( quoting Wong Sun v. UnitedStates , 371 U.S . 471, 486 , 83 S.C t. 407, 416, 9 L.Ed.2d 441 (1963)). As stated by t he court in Huddleston , “[u]nder the

‘ fr uit of the poi sonous tree’ analysis , the focu s is on whether the evidence was obtained by exp loitatio n of the Fourth A mend ment illeg ality .” Huddleston , 924 S.W.2d at 674, (emp hasis adde d) ( citing Wong Sun v. United States , 371 U.S. 471, 488, 83 S.Ct. 40 7, 417, 9 L .Ed.2d 4 41 (196 3)).

In Huddleston , the supreme court noted that four(4) factors are to be considered in determin ing whether t he confession was sufficiently an act of free w ill to purge the pri mary taint of the i ncarcerati on of a defendant without a j udic ial determinati on of probable cause. These factors are: 1) the pres ence o r absen ce of Miranda warnings; 2) the tem poral pro ximity of the a rrest and the confe ssion; 3) the presence of intervening circumstances; and 4) the purp ose an d flagran cy of the officia l miscon duct.
Huddleston , 924 S.W.2d at 674-75. The court in Huddleston noted that the fourth factor , the purpose and f lagrancy of the offi cial misconduc t, was of pa rticul ar significanc e in this an alysis. Id . at 676.

In its suppl emental fi ndings of fact, the trial court found that Defendant was administered his Miranda warnings on May 1, May 6, May 7, and May 8. The-12-

record suppo rts this f inding, and this wei ghs against suppr ession of t he confession. Defendant was taken into custody wit hout a warrant hav ing been issued, on May 3, 1996, and five (5) day s later, s till withou t an inte rvenin g ju dicial det ermination of proba ble cause, gave a conf ession whil e incarcerated. The defendant i n Hud dlesto n was held with out a judi cial deter min ation o f proba ble ca use fo r 72 ho urs, wh ile Defendant in this case was he ld 120 ho urs. Huddleston , 924 S. W.2d at 675 . As noted in Huddleston , once a detent ion becomes unlawful , the inc reased passage of ti me make s the Fo urth Am endm ent violation worse. Id . at 675. As stated by the supr eme court, “[o] nce the detention becomes unlaw f u l, the pressure to confess likely increases wi th eac h mom ent of continuing illega l detention.” Id . In Huddleston , the suprem e court held that where the de tention was fo r appro ximate ly 72 hours, the “

temporal prox imity factor” wei ghed in favor of suppressi on of the statem ent. Likewise, in thi s case, where t he Defendant was detai n ed for approxim ately 120 hours, this factor we ighs in favo r of supp ression.

T he trial court, in its supplem ental fin dings , determ ined th at De fenda nt’s parents were allowed t o visit with him pri or to his confession on May 8. This fact was disputed by Defe ndant in th e trial court a nd on appe al. However, under the approp riate standar

ds of review, we a gree w ith the fin ding o f the trial c ourt on this factor. This would w eigh in favo r of denyin g the m otion to suppre ss the sta temen t.

The fourth factor, and t he one which the supr eme court has placed t he most signif icance upon, wei ghs heavily in favor of suppressi on.-13- The Defendant was not questi oned for the first approximate ly 72 hours thathe was incarcer ated. When he was final ly questi oned, he again deni ed involvement in the cr imes. With no additio nal evidenceof proba ble ca use, a nd still no judici al determinat i on of probable cause for t he arrest, the Sherif f “locked [Defen dant] back up” because he “knew tha t [Defendant] wa s blowing hot air . . . again . . . .”

When revi ewing th ese facts, as we are r equired to do in li ght of Huddleston , and cons idering that the “focus ” is on whether t he evid ence was obtained by exploi tation of the Fo urth Ame ndme nt illegality, id . at 674, t he second and fourth factor

s outweigh the two factors w hich favo r admissibi lity of the confession. Therefore, the confessi on given by Defe ndant on May 8, 1996, to Scott Walley an d She riff

Kelley must be suppressed. Accor dingly, the judgments of convic tion are revers ed an d this m atter is re man ded fo r a new trial.

Defendant also argue s on a ppea l that the confe ssion shou ld have been suppresse d as being in vi olation of Rule 5 of t he Tennessee Rules of Cri minal Procedure. Rule 5(a) states that a person arrest

ed without a warrant must be taken without unnecessary del ay bef ore th e neare st appro priate m agistrate. T he State concedes that the detention of the Defen dant viol ated the rul e. However, under Huddleston , the tes t for the v iolation of this statutory rather than constit utional right is the volun tariness o f the confe ssion un der the to tality of t h e circumstances. Huddleston , 924 S.W.2d at 670. Under si milar ci rcumstances as found by the court in Huddleston , we determine t hat the confession in t his case shoul d not be-14-

suppressed sol ely un der Rule 5 of t he Tennessee Rules of Cri minal Procedure, even though it must be suppressed under Fourth Amendment constitutional provi sions.

Although we have determined that this case mustbe r eversed and remanded upon t he is sue regard ing Defend ant’s confession, we wi ll addres s the remain ing issue s prese nted by D efenda nt.

P OLYGRAPH E XAMINATION

Defendant con te nds that he shoul d have been all owed access to the results of his polyg raph examinati on and should have been al lowed to presen t the results as evid ence . At the s uppre ssion hearin g, Age nt W alley tes tif ied t hat the results indicated that Defendant was “decepti ve” as to his i nvolvement i n the crimes committed against t he victi m. Ther efore, D efendant was al lowed access to t he results of th e exam ination.

Well-establi shed law in Tennesseeholds tha t the results of a polygraph examination are no t a dmiss ible as evid ence. State v. Hart , 911 S.W.2d 371, 377 (Tenn. Crim. A pp. 199 5); S tate v. Irick , 762 S.W .2d 121 , 127 (T enn. 19 88), cert
. denied , 489 U .S. 1072 , 109 S.C t. 1357, 1 03 L .Ed.2d 8 25 (198 9); State v. Adkins , 710 S.W .2d 525, 529 (Tenn. Crim . App. 1985 ); Grant v. State , 213 Tenn. 440, 443, 374 S.W.2d 391, 392 (1964). As the State cor rectly notes wit hin its

brief, neither

the offer to take a polyg raph nor the circum stanc es su rroun ding th e exam are ad miss ible as evidenc e. Adkins , 710 S.W.2d at 528-29 ; Grant , 374 S.W.2d at 392. Thi s issue is without m erit.-15- R EVOLVER AND B ALLISTICS T EST R ESULTS
Defendant argues t hat the tri al court err ed in admitt ing a revolver and ballistic test results in to eviden ce. Defe ndant a sserts th at the revolver was inadmissibl e since his priorcriminal record had been expunge d. Furthermore, the Defendant urges this

court that

the ballistics test results were so incon clusive as to be ren dered neithe r releva nt nor p robativ e, but h ighly pre judicia l.

During September 1994 at the Mid-South Fair in Memphis, Tennessee, Defen dant was a rrested for carryi ng a loaded .22 cal iber revolver. After pl eading g uilty to charges of

carryi ng a weapon on recreat ional proper ty, Defendant

was p lac ed on judici al diver sion. Evi dently, Defendant completed his sentence of diversion without furth er inciden t and his re cord wa s expun ged.

Expungement pursu ant to ju dic ial diversi on includes “all recor dation relati ng to the person’s a rrest, indict ment or information, trial, f inding of guilty and dismissal and d ischa rge. . . .” T enn. C ode A nn. § 4 0-35- 313(b ). This statute ’s purpose is to re store the def endant to the status the person occupied prior to such arrest, indictment or i nfor matio n. Def enda 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 expungi ng records of a criminal charge is to place the person back in the positi on he or she occupiedprior to being arrested or charged. State v. Sims , 746 S.W .2d 191 , 199 (T enn. 19 88). While the tri al court did all ow use of the revolver

as admissibl e physical evidence, he refused to all ow admission of any facts surround ing Defend ant’s prior arrest. The expungem ent languag e in our-16-

judi cial div

ers ion statute precl udes use of p roo f of

any arr est , i ndi ctme nt , infor mation, or trial. State v. Dishman , 915 S.W.2d 458, 464 (Tenn. Cr im. App. 1995). Physical evidence is not excluded under this

statutor y section, and this i ssue is without m erit.

Defendant comp lains the b allistic test r esults shoul d have been suppressed as they were “inconclusive” and , although relevan t, their probative value was subs tantially outweigh ed by the dange r of unfair pre judice. Th e decisio n to adm it or exclu de evid ence rests in the so und d iscretio n of the trial court, and th is court will not overturn the trial court’s rulings ab sent a clear s howing of abuse of discret ion. Stat e v. Bigbee , 885 S.W.2d 797, 806 (Tenn. 19 94). While the of ficer who conducted the bal listi cs tests admit ted the test results were not conclusive, he testif ied that the weapo n could not be exc luded as the potenti al murder weapon. The officer

also stated that t he four class characteri stics of the Defendant’ s weapon matched the bullet which kill ed the vict im. The revol ver and the murder weapon had
m atching calibers , same number of land and g rooves, matchi ng land and groov e widths, and thesamedirection of bar rel twists. These test results are rel evant, and the probative value clea rl y outw eighs the potential p rejudici al effec t of the inconclu sive natur e of the res ults.

B ATSON C HALLENGE AND C HANGE OF V ENUE

Defendant argues that the State’s exclus ion of c ertain black jur ors was in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69-17-

(1986). Followingthe conclusi on of voir dire, t he State exerc ised i ts perempt ory challengesagainst four (4) j urors, specifically jurors Rivers, Howel l, Woods and Br yant. De fendant objec ted under Batson that such chal lenges were based upon willf ul and purposeful discri mination by t he State. While the Defendant ar gued that these challe nges resulte d in all blacks b eing exc luded fro m the jur y, the State responded, “[I]t’s been an unfortunate coincidence that most everyb ody that

knows the defendant or hi s family i s African-American, but that’s a sociologi cal fact that the State can’t be p rejudiced by. . . .”

After Defendant objected, the State r esponded to each c hallenge with an individual explanation fo r the perem ptory challenge . Firs t, with re gard to jur or Rivers, the State cited the fact that he had b een throug h the criminal co urts before and worked with ind ividuals similar ly situate d to the Defe ndan t on a d aily basis. The State referenc ed the ch allenge to juror How ell due to her rel ationshi p with the Defendant and his fa mily, and that, in response to questioning, so me of her a nswers “gave her some pause about her j udgment in thi s case.” Jur or Woods was excluded by the State as h e has a son the same age as theDefendant and is frien ds with the Defen dant. Juror Bryan t had tw o fam ily mem bers c onvicte d of felo ny offen ses in Fayette C ounty.

There is a thr ee-step analy sis defi ned in Batson which is u sed to determine whethe r purpos eful discrim ination ha s occurr ed in jury se lection. Batson , 476 U.S. at 96-98 . First, the opponen t of the perem ptory challenge must establish a pri ma facie case of

racial discrimi nation. Second , the one exerci sing the chal lenge must present a race-neutralexplanati on forexercisi ng the chall enge. Third, the tri al-18-

court is to determine w hether the rea sons given a re sufficient or are pretexts for discrimin ation.

In W oods on v. P orter B rown L ime stone Company, Inc. , 916 S.W.2d 896, 904 (Tenn. 1996), our supreme court he ld that in accom plishing the mand ate of Batson , the trial court s hould sta te clearly on the rec ord, ou tside th e jury’s presence, the facts

relied upon for fi nding the prese nce o r abse nce o f a prim a facie showing. If the t rial cour t finds that a pri ma facie showing has been made, then the party seeking to exclude the ju ror must have an oppor tunity to offer neutral and nondiscrim inatory explanati ons for the e xercise of

the chall enge. “Thereafter, the judge must determine, bas ed on all t he evidence, whet her purposefuldiscri mination has been established.” Id . at 904. While the procedure usedby the tr ial cou rt did not explicitly fol low these guidel ines, we must concl ude that the trialjudge determined first that a prima facie ca se of d iscrim in ation was establi shed and, second, that the t rial j udge rejectedDefendant’s obj ection by concluding that there was no purposeful discrimin ation by the State. Id . at 905 . Wh ile the tria l court d id not specifically state withi n the record the reasons for each finding , the rec ord of v oir dire suppo rts the trial c ourt’s ru ling as to Def enda nt’s Batson objecti on. Upon revi ew of the record, we will not set asidethe 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 Defen dant m ade a c onte mpo raneous motion for a change of venue during his

voir di re challe nges, the trialcourt over ruled his motion. Defendant o bjec ted on the basis of the prosecutor’s statement that most every Afri canAmerican in t he potentialjury poolknew the Defendant. Rule 21(a) of the Tennessee Rules of Cri minal Procedure provi des for a change of venue “if it appears-19-

to the cour t that, due to undu e excitemen t against the defen dant in the cou nty where the offense was committed or any othe r cause , a fair trial proba bly could n ot be ha d.” The decision to change venue rests in the sound di scretion of the trial court and will not be overtu rned ab sent a cle ar abus e of discre tion. Rippy v St ate , 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 re verse a d efenda nt’ s con vic tion du e to the denia l of his motion to change venue, the defendant must establish that the juro rs emp aneled to hear his case were pr ejudiced or biased against h im. State v. Burton , 751 S.W.2d 440, 451 (T enn. C rim. App . 1988); State v. Evans , 838 S.W.2d 185, 192 (Tenn. 1992), cert
. denied , 114 S.C t. 740 (19 93). There is no evi dence in the r ecord that undue excitem ent or an y other ca use thre atened his right to a fair t rial in that county. The mere fact thatthere was extensive knowl edge of the cr imes and the defendant is not su fficient to rende r the trial c onstitu tionally unfair. State v. Kyger , 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989) (citation omit ted) . Absent an y proo f by this Def endant that the j urors were prejudiced agai nst him, we f ind this issue t o b e without m erit.

M OTION FOR M ISTRIAL

Defendant argues that the t rial cour t erred i n overrul ing his moti on for a mistrialbased upon the prose cutor’s reference to De fendant’s expunged convict ion during the trial . During pr etrialmotions, t he trial cou rt deter mine d that D efend ant’s prior arrest h ad be en pro perly expunged and, ther efore, the prosecut ion could not “go into the un derlying circ umsta nces o f a ny crimes [the D efendant] wo uld have committed while he had the gun or any charges against

him.” Defendant

claims that-20-

the prosecuti on did present testi mony of and reference these inadmissible matters.

A mistrial is an approp riate remedy w he n a trial cannot con tinue, or a miscarriageof justice wo uld result if it did. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to g rant a mistrial rest s in the sound discre tion of th e trial co urt, and this court wil l not i nterfere with the exercise of that discreti on absent clear abuse appearing on the face of the recor d. State v. Jones , 733 S.W.2d 517, 522 (Tenn . Crim. A pp. 198 7); 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 th e prosecutor el icitedtestimony regarding the pistol taken from th e Defendant, but the prosecutor at no instance ever inquired into the unde rlying circ ums tance s surro undin g the D efend ant’s arrest. As previo usly determ ined, th e testimon y conce rning De fendan t’s posse ssion of a revolver was a dmis sible, a nd the re is no evidence of a “manifest necessit y” by which the trial cou rt shou ld have de clared a m istrial. See Arnold v. State , 563 S.W.2d 792, 794 (Ten n. Crim. App . 1977).

T ESTIMONY OF J ESSE J AMES J ONES

Defendant contends that the t rial cour t erred i n excluding some portions of the testimon y of Jesse Jame s Jone s, a cellm ate of the D efenda nt. Specifically, Defendant asserts that the t rial cour t excluded t

estimonyregard ing the Defe ndan t’s lackof abil ity to use a telephone whi le incarcerat ed. As this i ssue was not speci fically i ncluded wit hin the Defendant’s motion for new tri al, thi s issue is not-21-

prope rly before thi s court and i s, theref ore, waived. Tenn. R. App. P. 3(e); State v. Clinton , 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

J UDGMENT OF A CQUITTAL

Defen dant arg ues tha t the trial court e rred by failing to granta motion fora directedverdict

and judgment of acquittal f ollowing the conclusion of the S tate’s proofand at the end of the tri al. The duty

of the trial judge and the r eviewing court on the determination of a motion f or a judgment of acq uittal is th e same as for a motion for a directe d verdict. State v. Torrey , 880 S.W.2d 710, 71 2 (Te nn. Cri m. App. 1993). This duty is as follows: The rule for

determininga motion for a directed verdictrequires t he trial judge and the revi ewing court on appeal to look at all of the evi dence, to take the strongest

legiti mate view of i t in fav or of the opponen t of the motion, and to allow all reasonable inferences from it in its fav or; to discard all coun tervailin g evide nce, a nd if then, there is any dispute as to any materialdeter mi native ev idence, or any doubt as to the conclusion to be drawn fr om the w hole evide nce, the moti on must be denied. State v. Thompson , 549 S.W .2d 943, 946 (Tenn. 197 7) ( citing Jones v. State , 533 S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).

Defendant was convicted of murder in the pe rpetrat ion of robbery and secon d degree m urder, which the trial court merged as one con viction for f elon y murder. At the time of this offens e, a reckle ss killing of an oth er com mitted in the perpetrat ion of or attempt to perpetr ate any robber

y or burgl ary cons titu ted first degree mu rder. Ten n. Code Ann. § 39-13- 202(a)(2). He was also convi cted of espe cially aggravated robbery. Especiall y aggravated robbery i s the intentional or knowing theft of

prop erty fro m another person accompli shed by a deadly weapo n-22-

and the victim suffers se rious bodi ly inj ury. Tenn. Code Ann. §§ 39-13-401 and -403.

From the record, i t is cl ear that t he evidence i s suffi cient to support the trialcourt’s refu sal to gran t th ese motions. While Defendant focuses upon the element of “prem editatio n” in his brief, this mentalstate wasnot required by these offensesand his argument i s moot. In hi s own statemen t, Defenda nt adm itted to intentio nally using a revolv er to rob the victim of his sto re earn ings. W e note that all evidence admitted at

the tri al, even i f admitted erroneously , can be considered when addressing a Defendant’s c hallenge to the suffic iency of t he evidence to sustain t he convicti on. See Lockhart v. Nelson , 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Longstreet , 619S.W.2d 9 7, 10 0-01 (Te nn. 19 81). While the Defendant claims to have acci den tally fired t he handgun, eviden ce demonstrated thatit would take a signi ficant a mount of pressure to d ischarge the weapon. I n any even t, the reckle ss use o f the wea pon res ulting in the d eath of the victi m wh il e Defendant comm itted a robb ery is sufficien t to constitute conviction s of fe lon y murder a nd espec ially aggravated rob bery.

L ESSER I NCLUDED O FFENSES

W hile we are addressi ng each of the i ssues raised by Defen dant, despite the fact thatwe have reversed t he convi ctions based upon hi s fir

st iss ue, we note th at if the case is r etried, any issue re garding the c harging of l esser incl uded offense s mus t be base d upon the reco rd prese nted in the new trial.-23- Defendant argues that the tri al court erred in refusing to ch arge the jury with the lesse r off enses of premed itated first degree m urder, including volun tary ma nsla ughter

and criminal ly negli gent homicide. Reasoning that there was not ad equate evidence of passion or pr ovocation, the tri al court r efused to cha rge th e jury on these lesser

offenses. The trialcourt charged second degree murder as a lesser offense of premeditated first degree murder and charged reckless homici de as a lesser offen se of felony mu rder.

We note that t he Defendant fai led to i nclude thi s issue in his moti on for a new trial. T ennes see Ru le of App ellate Procedure 3(e) requires t hat issues i n a motion fornew trialbe “specif icall y stated . . . other wise such iss ues will be treated as waived .” W e do h ave the autho rity to ad dress the tria l court’s failur e to charge the jury on approp riate lesser offenses as plain error. Ten n. R. Crim. P. 5 2(b). Howeve r, for the reasons sta ted hereafter, we find no plain error.

The Defen dant wa s convicte d by th e jury of second d egree m urder, felony murder and especial ly aggravated r obbery. The trial cour t merged the offense of second degree m urder i nto the co nviction for m urder in the perpetra tion of a felony. Likewise, even if t he jury had been c harged with voluntar y manslaughter and crimin ally neglig ent ho micid e an d had delivered a guilt y verdict on each of t hose counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convi ctions would have been merged by the trial court into theconvicti on for fel ony murder. The result would have been t he same as Defendant’s cur rent convi ction fo r felony murder. Therefore, any error i n failing to charge these offenses is harmless. Tenn. R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).-24- P ROSECUTORIAL M ISCONDUCT

Defendant asserts in his brief that th e State ’s prosecutor con ducted hims elf inappropriately throu ghout the trial by failing to com ply with discovery, impe rmiss ib ly communicating wit h a witness dur ing tri al recess, and noting Defe ndan t’s expun ged c onvictio n durin g the tria l. Defen dant’s motion for new trial spec ifically asserts t hat the trial court erred “i n allowi ng the State to argue during t he sentencing phase, matter which was outsi de the scope of t he aggrav ating factors presented by the State.” There is no mention in hi s motion for new trialof any communication by the prosecut or with a wi tness duri ng the tri al or of any failure by the State to comply wi th discover y. During the Defendant’ s hearing on t he motion for new trial, his counsel orally requested that

the porti on of his moti on referenci ng the “sentencingphase” of the tri al be struck a s the Defendant r eceived the mi nimum sentence with reg ards to all coun ts. As th e Def enda nt’s rem ainin g asser tions of prosecutori al misconduct were not specifi cally i ncluded wit hin his moti on for new trial , this issue is not

properly

before thi s court and i s, theref ore, waived. Te nn. R. App. P . 3(e); State v. Clinton , 754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).

C ONCLUSION

For the reaso ns sta ted in th is opinion addressing Defendant’ s issue on the motion to suppre ss, the jud gmen ts of con viction fo r felony murd er and espe cially aggravated robbery are reversed. Reversa l of the j udgments also negates the-25-

merger of the s econ d deg ree m urder convic tion into the felony murder convict ion. By return of

a verdict

of guil ty of second degree murder, the jury acqui tted the Defendant of the greater offense of premeditated f irst degr ee murder in that count of the ind ictme nt. Acc ording ly, this case is remanded for a new trialon the charges of one count of felonymurder, one count of second degree murder , and one count of especially aggra vated robbe ry.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOE G. RILEY, JR., Judge