### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

uly 11, 2000

STATE OF TENNESSEE v. REGINALD MERRIWEATHER
Appeal from the Circuit Court for Madison County No. 98-549 John Franklin Murchison, Judge

No. W1999-02050-CCA-R3-CD - Filed March 6, 2001

The defendant appeals his jury convictions of attempted second degree murder, aggravated assault, andespecially aggravated robber y. He raises the following issues: (1) whether the trial judge erred in denying defendant’s request for a mistrial based on a juror ’s response during voir dire; (2) whether the trial court erred

in directing a w

itness to answer questions on cross-examination; (3) whether the evidence was sufficient to support his

convictions; and (4) whether the trial court erre

d in failing to instruct the jury as t

o certain lesser

-included offen

ses. The judgmen

t of the trial cour

t is affirmed in part and revers

ed in part.

T. R. A. P. 3 APPEAL AS OF RIG HT ; Judgment of the C

ircuit Court AF

FIRMED IN PART, REVERSED IN P ART and DISMISSED IN P ART.

C ORNEL IA A. C LARK , S P

. J., delivered the opinion of the court, in which D AVID H. W ELLES , J. and A LAN E. G LENN , J. joined.
J. Colin Morris, for the appellant, Reginald Merriweather.

Paul G. Summers, Attorney General, Mark E. Davidson , Assistant Attorney General, Jerry G. Woodall, District Attorney General, and Donald H. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On April 17, 1998, James Thomas Wyatt was dating a woman na med Elizabeth

Smith, who lived in an apartment on Ridgemont Drive in Madison County. He had used crack cocaine

earlier in the day. According to Wyatt, ar ound 12:30 or 1:00 Miguel Miller and defendant Reg

inald Merri weather

arr ived at the Ridgemont Drive house. He had never met them before. They attempted to sell Mr. Wyatt some crack cocaine. Wyatt ag reed to purchase cocaine, and Miller left to get it.1 The residence was located at 121 Hickory Hollow Road, and had been occup ied for a bout six months by Miguel M iller and the de fendant.

2 On direct examina

tion Wyatt tes

tified t hat he thought Miller left Ridgemont Drive first

, and the defendant

later rode wit h hi m fr om Smi th’ s to the Hick ory H oll ow add

res s. On cross-exam ination he ad mitted that he w as not certain which man lef

t fi rst, and whi ch rode l ater w ith h im.

-2- A few minutes late

r Wyatt and the defenda

nt received a ca

ll to come to another residence 1
to purchase

cocaine. The defendant went with Wyatt to that residence. 2 Wyatt waited in the living

roomwhile the two men went into a bedroom . A sma ll boy also wa s present in the livi

ng room, watching cartoons on television. Wyatt testified that Miguel Miller and the defendant then

gestured to him to come int o a bac k bedroom. Wyatt understood that he was going to be handed cocaine when he arrived in

the bedroom. However, he was instead confronted by Miller, who took a knife andslit Wyatt’s throat. Wyatt asked why Miller had done this, and he responded, “Because I wanted to.” Miller then slashe d him in the s tomach. Wyatt began to fall backward. Defendant Merriweather

pushed him forward

so that he would fall on a mattress instead of on the floor. At that point Mr. Wyat

t lapsed into uncons

ciousness.

The next thing Wyatt remembered was being placed into the back seat of his own truck by Miller andMerriweather. While he was riding down the road in the back of the truck he heard one of the defendants say to the other, “We need to make sure this white m----- f ----- is dead”. The other defendant then slapped him in the head. The victim could not identify which man took which action, because he did not open his

eyes during

this time period. He wanted the defendants to think he was dead. Once ag

ain he lost conscio

usness.
Wyatt next remembered waking up in his truck and finding that he was locked in and had no keys. The truck had be en wedged bet ween some tr ees. His wal let contai ning $700.0 0 was missi ng. Wyatt finally managed to kick a window out of the truck and exit. He found two jackets in the tool box. He wrapped them around his wounds and walked toward the sound of a running lawn mower.
Gregory Allen Jeffries was mowing his lawn when he heard his dogs barking and observed a man he did not know standing in the middle of a field. He approached the man, Mr. Wyatt, and discovered

that his neck was severely cut. Wyatt was very weak and

bloody. Jeffries called for an ambulance, then placed

Wyatt in the back of his own truck and drove him up to the main roa

d to wait for medical personnel to arrive.
Deputy Chad Lowery of the Madison County Sheriff’s Department was di spatched to the Jeffries home in Madison Count y to investigate

a reported stabbing. When Deputy Lowe ry arrived he encountered Mr. Wyatt, who had suffered a severe cut on his neck and was ble edi ng pr ofu sel y. Wyatt was holding an a

rmy jacket

or some article of

clothing to his nec

k to st op the blood flow. Wyatt appeared to b e conscious at that time. Deputy Lowery also noticed another injury to Mr. Wyatt’s chest. He assisted in placing Wyatt in the am

bulance, then dr

ove his car to the h

ospital. Doctors there imm

ediately be

gan to work on Mr

. Wyatt.-3-

Wyatt was hospitalized for eight days. He suffered permanent paraly sis to the right side of his face because of the cuts he sustained.

Sheriff David Woolfork test

ified that he par

ticipated in

the investigation, which eventually led officers to Miguel Miller and the defendant. Woolfork conducted the initial interview of Miguel Miller. Miller gave his written consent for officers to search the Hickory Hollow residence. Miller gavea statement admitti

ng his involvemen

t in the stabbing a

nd robbery . As a resu

l t, Miller was charged with attempted first degree murder, aggravated assault, and esp eci all y aggr avat ed ro bbe ry. Miller eventually

pled guilty

to each of those o

ffenses.
Investigator

Anthony Heavner participated in gathering e vidence from

the crime sceneand the truck. Blood was obser ved in b oth locations. Heavner obtained two knives that were hidden underneath

the mattress in the defendant’s bedroom. He also identified cocaine found in that

room, and photographs taken of the crime scene.

Heavner also interviewed the defendant. The defendant signed a waiver of rig hts form before speaking. His statement was recorded and played for the jury at trial. Defen da nt told Detective Heavner that he first met the victim with Miguel Miller at a house on Ridgemont. Defendant then left andreturned to the H

ickory Hollo

w Road residence

he shared with

his girlfriend and Miller. A short time later Miller returned to the Hickory Hollow residence on

foot. He then go

t a truck, left, and returned wit

h Wyatt.
According to defendant’s statement, Miller and Wyatt went into de fend ant’s bedroom to “mak[e] some transactions”. Defendant paid no attention to them, but remained in the living room, waiting for his young son to come in from school. Miller then called to the defendant to come to the bedroom. When defendant arrived in the bedroom, he found that Wyatt’s throat had been cut and he was bleeding profusely. However, Wy att was still conscious. He was say ing his money already hadbeen taken, and b egging for h is life. Defendant claimed he had no advance knowledge of Miller’s actions.

Defendant

stated t o He avner that Miller then asked for his

help in disposing o

f Wyatt. Defendant

acknowledged that he helped load Wyatt into the

truck, then drove with him to a deserted field and hid the truck in some bushes. During that trip Miller gave de fendant h alfof t he m one y. According to defendant, he then jumped out of the truck and ran to a relative’s trailer.
Miguel Miller

testified for the defendant at trial. He stated that he met Wyatt at Ms. Smith’s house, and that they got involved in doing drugs together. The y smoked a gram of crack cocaine. According to Miller, defendant Merriweather was not present at the Smith residence.

Later Miller and Wyatt rode in Wyatt’s truck back to Miller’s house. Defendant was present there. Wyatt had agreed to buy more crack from

Miller. Miller testified that he originally planned to rob Wyatt, and then decided to cut his throat. He testified that prior to executing it,

he discussed the robbery plan with the

defendant, who tried to stop him. Miller, high on cocaine, would not listen.-4-

He stated that he used two different knives in the stabbing . M iller denied that defendant knew anything about his action s or assist ed him in an y way in the stabbi ng.

Miller t estifi ed that he asked Wyatt for his money while he wa s sitting on the bed immediately

after the stabbing. By this time defendant had returned to the living room, anddid not witness the robbery . Wyatt then pa ssed out. Miller wr

apped him

in a blanket,

carried him outside, andloaded him into the truck. Defendant again did not participate in this process. He was angry a t Miller, and attempted to convince him to take Wyatt to the hospital. Miller refused. Defendant rode withMiller into the countryside to leave the victim and his truck. They left the truck and walked

to the home of Miller’s cousin.
According to Miller, Wyatt had only $100 with him. Miller claimed none of that money was given to the defendant. Instead, Miller gave defendant fifty dollars of his own money f or rent that

was due. The money

was transferred

at the house, before the robbery occurred. Miller a lso testified that defendant Merriweather did not smoke cocaine, although he did drink. Merriweather did not participat e in the crim es in any way. Mill er stated he planned th e robbery from t he beginnin g.

Miller acknowledged

that he had alrea

dy pled gui

lty in this case to atte

mpted first degree murder, especia

lly aggr avated robbery

, and aggrav

ated assault.
During cross-examination Miller’s testimony va ried s ignificantly from both his own testimon y on direct examination and from defendant’s written statement. He agreed that the

s tabbing occurred in defendant’s bedroom rather than Miller’s. He also stated that he obt aine d $200.00, rather than $100.00, from Wyatt. Miller reiterated that, when he told the defendant that he planned to rob Wyatt, defendant tried to talk him out of it.

However, when he was then a ske d if defendant had taken any steps to warn Wy att of the plannedrobbery, Miller

again changed his story. He stated that he did not advise def endant about the robbery in advance. He then became arg umentative, refusing to

answer the quest

ions posed to him, demanding to know whether they had been posed to the defendant. On several occasions the trial judge instr ucted him t o answer. Mi ller changed his testi mony again, sta ting t ha t he told defendant about the robbery in advance, and the defendan t tried to st

op him. Miller denied that defendant’s son was present during the events in question. He also denied there were any d

rugs in the residence. When shownone of the photographs taken by pol ice in defendan

t’s bedroom, he fi

rst admitted cocaine was present in the defend ant’s room. However, h e claimed it was hi

s. Almost imm edi ate ly, however, he re turned to his

position that there was no cocaine in the Hickory Hollow apartment.

The defendant test

ifi ed on his own behalf. Contradicting Miller’s testimony, he acknowledged

first meeting Wyatt at Elizabeth Smith’s house. He admitted drinking three or four beers while he was there, but denied u sing drugs. He said that he and Miller left together and returned to their residence. Miller left and returned to Smith’s house. After ten or fifteen minutes he returned with Wyatt in a gray truck. Wyatt entered the house with Miller.-5-

Defendant

then testified tha

t Miller called him to the b edroom and told him h e planned to rob Wyatt. Defendant claimed he thought Miller was joking, because he was high on cocaine. Defendant

saw his son approaching outside, so he left the bedroom where he understood the other two men would con duct a drug tra nsaction. He firs

t said he spoke to his

son, then stated tha

t h e merely saw his son walking

down the hill

outside. Miller then called to him to come to the bedroom.

Defendant

walked into the bedroom and found that Wyatt’s throat had been cut. That sight

ma de him panic, so he quickly ran outside and sent his son to a friend’s house. Th en he returne d inside to the bedroom. He found Wyatt with blood gushing from his neck, conscious an d saying, “I’ve done gave y

ou allmy money. Just don’t do that no more.” Miller picked Wy att up, wrapped him in a blanket, and indicated he planned to put him in his truck. Defen dan t testified that he continuedto try to stop Miller. He was standing by the truck when Miller threw Wyatt in. Wyatt’s head“flopped out”, throwing blood onto the defendant. Defendant pushed his head back in and got into the truck. Miller then drove off.

Defendant

testified that he continued begging Miller to take Wyatt to the hospital. Miller was “acting crazy”. They actua lly passed the hospital, but Miller would not stop. Miller drove to a field behind his grandpar ents’ home and left Wyatt and the truck. Although he was scared of Miller, defendant followed him on foot to another house.
Concerning the money, d

efendant testifi

ed that Miller ga

ve him $100 for ren

t, just as he did every week. He denied seeing Miller take money from Wy att, or receiving any of Wy att’s money himself.

Defendant

admitted that he did not wa r n Wyatt about the robbery plan because he did not believe Miller was serious. Defendant denied slapping the victim or saying they needed to be sure he was dead . De fend ant ass ert ed t hat bot h Wya tt a nd M ill er ha d te sti fie d in corr ect ly a bout the events in question, probably because both were high on cocaine a t the time. Defendant admitted that Miller often smoked crack cocaine, but was unaware that he sold it. Defendant admitted that he often drank beer and smoked marijuana with Miller.

Defendant

denied that he had participated in any way in the crimes. He admitted he had several prior felony and misdemeanor convictions. He asserted that he had cooperated fully with law enforcement officers.

On cross-examination defendant confi rmed the details of his prior convictio

ns. He also admitted using marijuana, but denied using cocaine.

Defendant

reiterated that

he and Miller left Eliz abeth Smith’s house and returned to their own reside nce togethe r. Miller then went back to Smith’s and returned with Wyatt in Wyatt’s truck. Wyatt sat down in the living

room and Miller we

nt back to defend

ant’s bedroom. Miller then called defen dant back and told him he planned to rob Wyatt. Defendant opposed this plan, t hen left the
roomas Wyatt entered. He did not mention the robbery plan to Wyatt as they passed.When he was-6-

calledback in a few minutes later, Wyatt’s throat had been cut. Defendant then went and told his

son not to enter the house. He denied that his son ever entered the hous

e. He testified th

at Wyatt watched cartoons alone.

Defend ant te stified that he knew Miller kept a knife, but he did not see it prior to the stabbing. He did not warn Wyatt about the impending robbery because he did not

believe it would happen. He vehemently denied being in the bedroom when the stabbing and robbery occ urred. He also denied touching him or helping carry him to the truck. His only contact with Wyatt was to push his head back into the truck.

Defendant

stated that he was in a panic from t he time he first obs

erved the injure

d Wyatt. He had gottenhis life back together after serving several prison terms. He had a job. He knew he needed to get help for Wyatt. That is why he g ot into the truck

with Miller. He admitted that he

never phoned for

help, even after leaving Miller. He denied receiving any of Wyatt’s money, and said the reference to “half the money” meant half of the rent that was due. He continued to assert that he did not stay behind and go for help because he was in shock.

I.

Defendant

first contends that

the trial court erred in denying his motion for a mistrial after

a juror, Mr. Harris, allegedly tainted the entire jury pool with remarks concerning his inability to be impartial. The specific exchange complained of occurred at the ver y be ginning of the assistant district attorney

’s voir dire of the

potential jury

panel:

MR. ALLEN: All right, let me make s ure I have everyo

ne in the right pl ace. Mr. Harris, Mr. Brook and Ms. Cash and Ms

. Rowland. I think I got everybody. Have each of you four been able to hea r all of my statements and que

stions of your fellow juro rs? I assume none

of you know any of the people involv ed in this case. Or do you? Okay, Mr. Harris, you do. JUROR HARRIS: I’ve met him. MR. ALLEN: You have met Mr. Merriweather? JUROR HARRIS: Yeah,through a friend, you know, over at a house, overat somebody else’s house. MR. ALLEN: You met him over at a friend’s house? JUROR HARRIS: Yeah. MR. ALLEN: About how long ago has that been? JUROR HARRIS: I don’t remember. A year or so ago. MR. ALLEN: Was this a close friend of yours whose house you were at

when you met him? JUROR HARRIS: The lady was.-7-

MR. ALLEN: And did you, I guess, have a conversation with Mr

.

Merriweather that night or that day? JUROR HARRIS: No. I ju st knew him through ano ther person he

wa s visiting with, a co nversatio n with hi m. MR. ALLEN: Have you seen or tal ked to him since tha

t one occasion? JUROR HARRIS: No. MR. ALLEN: But you d o know Mr . Merriweather. Have you met any of his family or any of his a ssociates or frie

nds? JUROR HARRIS: I know Mr. Merriweather, but I don’t know an y of hi s family. MR. ALLEN: But you do know the Defendant. JUROR HARRIS: Yeah, I’ve s een him. MR. ALLEN: Do you think that might in som

e way affect your

ability to
ma ke a fair and im

partial de

cision in his

case, the

fa c t that you k now him an d met him? JUROR HARRIS: I don’t know. The way I know him, being the situation it

was when I met him. MR. ALLEN: All right. Something about the situation or the way that

you met him that

you think might make it difficult for you to serve as a fair and impartial juror? JUROR HARRIS: Yes, it was. MR. ALLEN: Without getting into what the details were , do y ou think it might? JUROR HARRIS: It

might, because – you know, like I said, because of the situation, you know, the way I met him and, you know, where the place was. MR. ALLEN: Well, the bottom lin e is whet her or not you can m ake a fairand impartial deci

sion. And the reason we’re a sking you these questions is wheth er or not you think based upon your conta ct with hi m sometime in the past, because of the circumsta

nces of that contac

t, is that going to play a part in that decisio

n? JUROR HARRIS: I don’t know. It may not

, you know. MR. ALLEN: But you’re just not sure. JUROR HARRIS: No, beca use, like I said, the situation, but I can hear the

evidence. MR. ALLEN: Okay. Anybody else know the De fendant or ha

ve an y contact with him before? I believe that’s al

l. THE COURT: Mr. Morris. MR. MORRIS: Mr. Harris, are you saying you can’t be impartial? Is that what I’m hearing? JUROR HARRIS: Well, I’m just saying, you know, I wouldn’t want to, you-8- know,to do nothing to jeopa rdiz e, b ecause like I say, I had met him – THE COURT: Let’s don’t get int o any details about this

. MR. MORRIS: I just want to know if you can be fair and impartial,

that’s all, and obj ective, and look at t he facts in this case i

n particular, r egardless of how you may or may not know Mr. Merriweather or

where you w ere or whatever happened. Can you look at this case o bjectively and

listen to the facts from the

witness stan d, follow the Judge’s instructions,

hold the S tate to its burden of proving t he Defendant

guilty beyond a reasonable doubt, go i n the jury room and deli berate on this case ? Can you do all that? JUROR HARRIS: Oh, I’m not sure I can do that , you know,

hones tly, because – l ike I say, because I k new him. THE COURT: I take it that you understand you can’t g et into details

on the matter, but the

re is something that’s going to give you problems. I kind of can read that into it, right? JUROR HARRIS: Yes, sir. THE COURT: You’re excused.

James C. Volner. MR. MORRIS: Your Honor, can we appr oach? THE COURT: Yes. (There was a conference at t he bench, out of th e hearing of the prospective jurors as follows.) MR. MORRIS: Your Honor, I’ve never faced a situation like thisbefore,

but I think I better m

ake an objection. THE COURT: On what? MR. MORRIS: Orask the Court to considera mistr ial. Mr. Harris has tainted the whole jury pool. THE COURT: Let’s go out in the hal l. (There was a dis cussion off the recor d; and jury selecti

on continued without further objection.)

A mist rial shall be declared in criminal cases only in the event that a manifest nec es sit y requires such action. State v. Millbrooks , 819 S.W.2d 441 (Tenn. Crim. App. 1991). I n other words,

a mistrial is an appr

opriate remedy

only when a t

rial cannot co ntinue, or a miscarriage of justice would result if it d

id

. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to grant a mistrial lies within the sound discretion of the trial court and this court will not interferewith the exercise of that discretion absent clear

abuse appearing on the face of the record. See State v. Hall , 976 S.W. 2d 121, 147 (Tenn. 1998 ). Moreover , the burden of establi shing t h e necessity for mistrial lies with the party seeking it. State v. Williams
, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).-9-

Init ial ly, we note that the defendant has not pr eserved in the record the argument on the motion for

mistrial. It is theappellant’s duty to preserve an a

dequate recor

d for purposes of

appeal. Tenn. R. App. P. 24(b); State v. Bennett, 798 S.W.2d 783, 790 (T enn. Crim. App. 1990

). Failure to do so results in waiver of consideration of the issue on appeal, and a presumption that the trial court ruled correctly. State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).

Second, no objection was ma de by defe

nse counsel to the q

uestions bein

g pos ed by the prosecutor. Defense counsel himself asked a similar series of questions in the presence of the entire jury panel before deciding to present his motion. No request was ever made for individual voir dire. This failure to object also normally results in waiver of the issue. See State v. Little , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992).

Third, at no time during the course of the p rocee dings did defense counsel request any curative instruction to the jury about the possible prejudice that might

have occurred. This failure, too, c onstitutes waiv

er of the issue. Te

nn. R. App. P. 36(a) ; State v. Jones , 733 S.W.2d 517, 522 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

Fourth, the motion for new trial doe s not specifically

address this

issue, asserting only that “defendant

was not tried by a

n impartial jury

”. Since oral arg

ument on the motion is

not preserved in the record, we areunable to determi ne if this issue was

specifically

raised to the tria

l court. This failure also generally results in waiver of the issue. Tenn. R. App. P. 3(e ).

However, a review by this court of the entire exchange reveals no clear prejudice done to the defendant during the quest

ionin g of the juror. The juror admitted that he had previously met the defendant at a friend’s house, and had had a single conversation with him. He expressed uncer

tainty about his ability to be fair and impartial because of the “situation” when they me

t. While defense counsel speculated this was a reference to some improper activity, it might equa lly hav e be en a simple reference to h

aving met in a soc

ial situation and sha

ring mutual frie

nds. Both trial counsel andthe court asked th

e prospective jur

or not torecite any details, and he did not. Absent additional information, it is pure speculation as to what caused his discomfort, and is even more speculative to assume that other members of the potential jury panel would be more likely to assume a negative rationale rather than a positive one.
Generally, errors committed during the selection, summoning and empaneling of

juries do notaffect the validity of a verdict in a criminal case unless prejudice has enured to the accused. See Helton v. State , 195 Tenn. 36, 51, 255 S.W.2d 694, 700, cert. denied , 346 U.S. 816, 74 S.Ct. 28, 98 L.Ed. 343 (1953); State v. Boyd , 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992), per. app. dismissed (Tenn. 1993); State v. Elrod , 721 S.W.2d 820, 822 (Tenn. Crim. App.), per. app. de nied (Tenn. 1986); State v. Wiseman, 643 S.W.2d 354, 359 (Tenn. Crim. App.), per. app. denied (Tenn. 1982). The defendant has failed to substantiate his claim beyond mere speculation. He has not demonstrated that he was prejudiced by any error that was committed during voir dire. Witho u t more, this court must conclude there was no manifest necessity for a mistrial and that the trial court did not abuse its disc

retion by re

fusing to gran

t a mistrial. This issu

e is without merit.-10- II.

Defendant

next contends that

the trial court erred in its instructions to witness Miguel Miller during his testimony before the jury. This issue was not raised in d efendant’s motio

n for a new trial. Therefore, it is waived. Tenn. R. App. P. 3(e). However, defendant asserts that the judge’s remarks constitute plain error and, as such, are subject to review. See Tenn. R. Crim. P. 52(a).
Miguel Miller, the ori ginal co-de fendant in this ca se, was called by

the defense dur

ing its

case in chief. During cross-examination by the assistant district attorney, Miller engaged in a pattern of responding to the prosecutor’s questions with questions of his own. His answers were unresponsive andcontradictory on a number of occasions. On four separate occasions the trial judge askedthe witness to answer questions specifically. The witness continued his unre sponsi ve answers. The last exchang

e, challenged by

defendant in his br

ief, was as follow

s:
Q. You took his wallet? You got a problem there , Mr. Mil ler? A. Do you have a problem? Q. You got how much money out of his pocket? A. I already told you that. Q. Tell me again. I don’t remember. A. Yeah, you remember. THE COURT: He asked how much money. Come on, Mr. Miller. How much money did you get from him? THE WITNESS: He already know that. I ain’t going to answer that again. THE COURT: You’re not? THE WITNESS: He already knows the answer. THE COURT: If

you don’t answer the

se questio ns, I’m going

to tellthose ladies and gentlemen to disregard every statement you’ve made.And if you want me to do that, that’s what I’m going to do, every word that you say. A witness cannot get on the stand, give the testimony they want to and refuse to give it -- all of the testimony. So please – A. What was the questio n again? THE COURT: Please co operate with us, M

r. Miller. I wish

you would. If you don’t, your testimony and you are both going out of here. Q. How much money did you get from Mr. Wyatt? A. $200. Q. Okay. And you say you turned around and give him $50. A. Of my check.

Tenn

. R. Evid. 611(a) pr ovides that “a cou

rt shall exercise

appropriate con

trol over th e presentation of evidence. . .” The propriety, scope, manner, and control of examination of witnesses is entrusted to the sound discretion of the trial court and will not be interfered with absent an abu

se of that discretion. State v. Hutchison , 898 S.W.2d 161, 172 (Tenn. 1994). The defend an t never-11-

objectedto the judge’s statement to the wit ness, never aske

d for the jury to

be excused, never asked for a curative instruction, and did not include this matter in his motion for new trial.

A trial court may admonish a witness suspected of untruthfulness of the significance of lying under oath. State v. Schafer , 973 S.W.2d 269, 278 (Tenn. Crim. App. 1997). However, a trial court may notdeclare its belief the witness is being untruthful and threaten the witness with prosecution for perjury to such a d

egree that the w

itness changes his testimony to the detriment of the defendant. Id. at 278. When the trial court’s actions exceed the bounds of an appr opriate warning, “the defendant’s right to a fair trial is compromised and the outcome of thetrial brought into question”. Id.

The witness in this case clearly evidenced, through his action s, that he did not intend to cooperate with the prosecuto

r’s attempt to cond

uct cross-exami

natio n. He had to be admonished

more than once. The trial judge merely attempted to require him to be more responsive. He did not exceed the bound

s of an appropria

te warning. No ab

use of discretion occurred. There is no plain error. This issue

is without merit.

III.

Defendant

next contends that the evidence is insufficient to sustain his convictions of attemptedsecond degree

mur der, aggr avat ed as sau lt, and esp eci all y aggr avat ed ro bbe ry. When an accused challenges the sufficiency of the convi cting evidence, the standard is whether, after reviewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact co uld have found the essential ele ments of the crime

beyond a reasonable doubt. Jackson v. Virgin ia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, aswell as all factual issues raised by the evidence, are resolved by the trierof fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v. Cabbage
, 571 S.W.2d 832, 835 (Te nn. 1978). A verdi

ct of guilty by the ju

ry, app roved by the trial judge, accredits the testimony of the

state’s witnesse

s and resolves all

conflicts in

the testimony in favor of the state. See State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994).

The defendant was charged with attempt to commit first degree murder. He was convicted of attempt to commit second degree murder. To obtain a conviction for

this offense, the

state must prove that defendant kn

owingly att

empted to k ill the victim. Tenn. Code Ann. §39-12-101 and §39-13-210.

To obtain a conviction for especially ag gravated robbery, the state must prove (1) the defendant perpetrated an

intentional or know

in g theft of property from the person of another by violence or putting the person in f ear; (2) the defenda

nt accomplished th

e theft with a dea

dly weapon; and (3) the victim suffered serious bodily injury. Tenn. C ode Ann. §§39-13-403(a) and 39-13-401.

To obtain a convictio

n for aggravate

d ass ault, the state must prove the defendant (1)3 The indictment o riginally stated that the defendan t attempted to kill the victim with a gun, but the indictment was later amended t

o indicate th

e deadly weapon was a kni fe.

-12- intentionally

or knowingly committ

ed an assault

as defined

in Tenn. Code Ann. §39-13-101 and, (2) caused serious bodily injury to the v ictim or used or disp

layed a deadly

weapon. Tenn. Code Ann. §39-13-102(a).

A person may be con

victed of each o

f these three of

fenses under a c

rimin al responsi

bility theory. A defendant is cr

iminally responsibl

e as a party to an offense if the

offense is committed by the defendant’s own conduct, by the conduct of another for which the defen dant is criminally responsible, or by both. Tenn. Code Ann. §39 -11-401(a). A de

fendant is crimina

lly responsible

for

an offen se committed by the conduct of another if, acting with intent to promote or assist in the commission of the of

fense, or to benefit in the proceeds or results of the offense, the defendant solicits, direc t s, aids, or attempts to aid another person to commit the offense. Tenn. Code Ann. §39-11-402(2).

BothMiguel Miller and the defen dant testif ied that Miller advised defendant in advance about his plan to rob the vi

ctim. The victim tes

tified that t

he two men were to

gether alone in the bedroom before he entere d and that, immediately upon his entry, Miller attacked him with two different knifes, seriously injuring him, and took his money. He testified that t he defendant assisted by directing his body t

o fall in a location

where blood would

not be spilled across the room. Both

men then assisted in pla

cing him in his truck, drivin

g him to a deserted

location, locking h

im in the truck, and leaving him there without assistance. One of the men commented to the other duringthe drive that they needed

to be sure he was dead. Defendant also acknowledged receiving money from Miller shortly after Miller took money from thevic tim. He never warned the victim, called the police, o r sought to get the victim any assistance. The victim was hospitalized for eight days and suffered parti

al paralysis to his f

ace as a result o

f his injuries.

A verdict of guilty accredits th e theory of the state and removes the presumption of innocence. While

the testimony in this case was contradictory, the jury could have concluded, taking all evidence in the light most favorable to the state, that the defendant wa s criminally respo

nsible for the attempted murd

er, aggravate

d assault, and esp

ecially aggravated robbery of the victim. The jury n eeded only to find that the defenda

nt, acting with the i

ntent to promote or

assist th e commission of the offenses, or to benefit in the proceeds of the offense, aided Miller in committing the offenses. Tenn. Code Ann. §39-11-402. The proof is sufficient to support the convictions on all three counts

However, although not raised by the defendant, we find ourselves constr

ained to reverse and dismiss the defendant’s conviction for aggravated assault on the basis of plain error. See Tenn. R. Crim. P. 52(b). The defendant was indicted for attempting to murder the victim by using aknife 3 andfor causing seri

ous bodily injury by u

sing a knife. Thes

e charges aros

e out of a single

attack on a single victim. The

dual convictions th

erefore raise

double jeopardy i

ssues.-13-

The Tennessee Consti

tution pr otects defendan

ts from multiple punis

hments for the same offense. See Tenn. Const. Art. 1, 10; State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996). We must thereforedetermine whether the defendant’s convictions for attempted mur der and aggravated assault are, under the facts of this case, multiple convictions for a single criminal action and thereby constitutionally

infirm. This deter

mination requires a four prong inquiry: whether aggrava ted assault is a lesser included offense of attempted second degree murder under Blockburger v. U.S.
, 284 U .S. 299, 304 (1932); whether the state relied o

n the same evidenc

e to prove both off

enses; whether there were multi

ple victims or discr

eteacts; and a comparison of the purposes of the statutes unde rlyingthe t wo offenses. Id. at 381. “[T]he results of each [prong] must be weighed and considered in relation to each other.” Id.

This Court has already

considered on at least two occasions the viability of convictions for attemptedhomicide and aggravated assault arising out of a single attack on a single victim. In State

v. Hall , 947 S.W.2d 181, 183 (Tenn. Crim. App. 1997), th e Defendant re

peatedly shocked the victim withan electrical cord, apparently in an attempt to electrocute her. He was convicted of attempted seconddegree murder and aggravated assault. Id. at 182. This Court found that aggravated

assault

was not a lesser inclu

ded offense of a

ttempte d second degr ee murder under the Blockburger test. Id. at 184. However, this Court further found that the evidence used to prove each offense was the same; that the offense

was a single atta

ck upon a single v

ictim; and that both

statutes sought to serve the same purpose: “to prevent physical attacks upon persons.” Id. Acco rdi ngly, this Court reversed and dismissed the Defendant's conviction for aggravated assault. Id.

Sim ila rly, this Court addressed convictions for attempted first degree murder and aggra vated assault arising from a s

ingle attack on a

single victim in State v. Adams , 973 S.W.2d 224, 226 (Tenn. Crim. App. 1997). In that case, the defendant shot the victim once: leading this Court to conclude that the same evidenc

e was used to prove

both offenses; t

here was “one discre[te] act and one vict im;” and that, because both statutes were aimed at deterring assaultive conduct, “[t]he evil at which the offenses are directed” was the same. Id. at 229. Acco rdingly, altho ugh the Blockburger test was again failed, this Court reversed and dismissed the defendant's conviction for aggravated assault. Id.

We recognize that

the Defendant's accomplice in th is case stabbed the victim not just once, but tw ice. However, b

oth stabbings took

place at the same

location and within

moments of eac h other. In Hall

we noted that, “w

hile each specif

ic shock was a disc

rete act, each

was part of a sing

le attack upon a single vic

tim: analogous to multiple stabbings or multiple

gunsh ots .” Hall , 9 47 S.W.2d at 184 ( emphasis added). Hence, we find that the two stabbings here do not indicate the commission of separate

offenses. We further recognize that the Defendant's actions in abandoning the wounded and bleeding vic tim in a locked truck in a remote field might have provided an alternative basis for a convictionof attempted second degree murder. However, the Defendant was charged with attempting to commit the murder by use of a knife, not by

secreting and abandoning the victim. The jury convicted the Defendant of the offense with which he was charged, and we are notin a position to dete

rmine his guilt of a

n offense which the jury

had no opportunity

to consider.-14-

The case before us therefore deman ds th e same conclusion that this Court reached in Hall and Adams . Although aggravated assault is not a lesser included offense of attempted seconddegree murder under Blockburger , the remaining three prongs of the Denton test point to a double jeopardy violation. The evidence used to prove both offenses was the same: Miller slashed the victim across the throat and acros s his stomach as the victim was waiting to purchase coc

aine. There wa

s a single victim subjected to a single attack, and the purposes of the s tatutes pro hibiting attempted second degree murder and aggravated assault are the same. According ly, under our supreme

court's decision in Denton , we reverse an

d dismiss the Defen

dant's convictio

n for aggrav

ated assault.

IV.

The defendant

finally contends that the trial court erred by failing to instruct the jury about the possible lesser-included offe nses of cr iminal responsibility for facilitation of a felony and accessory after

the fact. Tenn. Code Ann. §39-11- 403. This issue also

was not raised at t

rial or in the motion for new trial. Therefore, generally it is deemed waived. Tenn. R. App. P. 3(e).
Additionally, defendant in his brief does no t cite an y case law in suppo rt of his argument. His entire argume

nt on this issue is:

IV. WHETHER THE COURT COMMITTED P LAIN E RROR BY NOT INSTRUCTION

(sic) THE JURY OF THE LE SSER INCLUDED OFFENSES OF CRIM IN AL RESPONSIBILITY FOR FACILITATION OF A FELONY AND ACCESSORY AFTER THE FACT.

It is the Defendant

’s position that the

Court committe

d Plain Error by notinstructing the lessor (sic) included offenses of Criminal Responsibility for Facilitation of a Felony and Ac cessory after the Fact. It is the Defendant’s position that

after all of the pr

oof inthis case, both of t hese instructions sh

ould have been submitted to t he jury for their consideration. The Defendant argues that this is Plain Error unde r Rule 52(b) of the

Tennessee Rules of Cr iminal Procedure.

This failure, too, generally acts as a waiver of the issue. Tenn. Crim. App. R. 10(b). However, the defendant argues that this failure is plain error under Rule 52(b), Tenn. R. Crim. P.
A. Accessory After the Fact

Def endantfirst

claims the court should have instructed the jury about the offense of accessory after the fact. “A person is an accessoryafter the fact who, after commission of a felony, withknowledge or rea

sonable ground to

believe that the offender has committed the felony, and with the intent to hinder the

arrest, trial,

conviction or punishment of the offender: (1) harbors or conc eals the offender; (2) provides or aids in providing the offender with any means of avoiding a

rrest, trial,-15-

conviction or punishment; or (3) warns the offender of impending apprehension or disco very. ” Tenn. Code Ann. §39-11-411.

In State v. Hodgkinson , 778 S.W .2d 54 , 63 (Tenn. Crim. App.), per. app. denied (Tenn. 1989), this court held

that accessory after the fact is a separate offense, rather tha n a lesser-included offense of a felony committed by the perpetrator of a crime. See Monts v. State , 214 Tenn. 171, 379 S.W.2d 34, 43 (1964); State v. Hoosier , 631 S.W.2d 474, 476 (Tenn. Crim. App.) per. app. denied (Tenn. 1982). Since the defendant was not charged separately with this offense, the court was under no duty to instruct th

e jury about it. This

assertion is withou

t merit.

B. Facilitation of a

Felony
Trial courts are under a duty to “instruct the jury on all lesser grades or classes of offenses andall lesser-included offenses if the evidence will support a conviction for those offe nses . . . ”, State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). This duty exists even absent a request from the defendant. Allowing consideration of the lesser offenses and the lesser grades if the evidence supports guilt on those offenses, moreevenly balances the rights of the defense and prosecution and

se rves the interest of justice. Id. at 553. The trial ju dge did, over the o

bjection of th

e defendant
, instruct the jury on criminal responsibility for the conduct of another. He was not requested to, and did not, charge f

acilitation of any

of the felonies.

In State v. Lewis , 919 S.W.2d 62 (Ten n. Crim. App. 1995),

this court ruled that “virtually every time one is charged with a felony by way of

criminal responsibility for the conduct of another, facilitation of a felony w ould b e a lesser included offense”. Id. at 67. The panel concluded that “criminal responsibility

for facilitation is a lesser degree than that for criminal responsibility for the crimeitse lf based on the conduct of another”. Id. at 68. In State v. Langford , 994 S.W.2d 12 6 (Tenn. 1999), our Supreme Court a gain touched on the

subject, holding tha

t “a trial court mu

st instruct the jury on all lesser included offenses if theevidence introduced at trial is legally sufficient to support a conviction for the lesser offense”. Id. at 128. This gen er al statement, however, does not end our analys

is.

Tenn. R. Crim. P. 30(b) provides that the parties are to be given an opportunity

to object to (1) the content of jury instructions or (2) the failure to give requested instructions. The f a ilur e to make objections in these instances does not prohibit their being used as grounds in the motion for

new trial. State v. Lynn , 924 S.W.2d 892, 898-99 (Tenn. 1996). However, alleged omissions in the jury charge must be

called to the tria

l judge’s attent

ion at trial or be r

egarded as wa

iv ed. State v

. Haynes , 720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986).

In contrast to

an erroneous instruction or thefailure to give a requested instr

uction, defense counsel cannot sit on an objection to an omitted charge and allege it as a ground in the motionfor

new trial. State v. Deborah G ladish , No. 0 2C01- 9404-CC-00070, McN airy County

(Tenn. Crim. App., Jackson, Nov. 21, 1995), perm. app. denied (Tenn., May 6, 1996).

We, nevertheless, have the authority to address the failure to charg e appropriate lesser4 Of course, had the jury convicted the defendant of criminal responsibility f

or the facilitat

ion of both the attempted

murder and the aggravated assault, only t he conviction relating to the murder would be allowed to stand under the same theory by which we reverse the defendant’s aggravated assault conviction.

-16- offense s a s plain error. Te nn. R. Crim. P. 52(b).

Where there is ev

idence sufficie

nt to support a conviction of a lesser included offense, the trial court must instruct the jury on the lesser offe nse. See State v. Bolden , 979 S.W.2d 587, 593 (Tenn. 1998). The trial court’s duty in this reg a rd is

man dat ory. Id. In this case, the evidence was sufficient to support convictions of facilitation of each of the charged felonies. The trial court therefore erred in fa iling to give this instruction.

However, while we find that the trial court committed error in its failure to charge criminal responsibility

for the facilita

tion of the felonie

s, we further find that the error was harmless. In State

v. Williams , 977 S.W.2d 101, 105 (T enn. 1998), our su

preme court concluded that when a trial court fails to give a required instruction on a lesser included offense, reversal is necessary only where the

error “affirmatively appears to have affected the result of the

trial on the merits,

or in other words, reversal is required if the error more probably than not affecte d the judg ment to the defendant’s prejudice.”

Here, the trial judge instructed the jury on attempted first degree murde r and the lesser includedoffense of attempted second degree murder;aggravated assault; and especially aggravated robbery and the lesser included offenses of aggravated robbery and robbery. The jury c

onvicted the defendant of attempted second deg ree murder, aggravated assault, and esp eci all y aggr avat ed ro bbe ry. Even though th

e trial j udge should have charged the jury conc erning the defendant’s criminal responsibility

for the facilita

tion of each of the

se felonies, 4 we c ertainl y cannot say that the trial court’s error affi rmativel y appears to have affected the result of the trial on the merits. In other

wor ds, we ca nno t sa y tha t th e ju ry more probably than not would have found the defendant g uilty of criminal responsibility for the facilitation of any of the cha rged offenses if the jury

had been given that option. Therefore, under Williams , we conc lud e that the error is harmless and reversal of the defendant’s convictions for a ttempted second de

gree murder a

nd especially

aggravated

robbery is not required.
Accordingly, for the reasons set fort h above, we reverse and dismiss the defendant’s conviction for aggravated assault. In all

other respects, the judgment of the trial court is affirmed.

____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE