### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 26, 200 1 Session
STATE OF TENNESSEE v. DE METRIUS HOLMES
Direct Appeal from the Criminal Court for K nox County No. 67734 Richard R. Baumgartner, Judge

No. E2000-02263-CCA-R3-CD

A Knox County jury

convicted the defendant of agg ravated robbery, a

nd the trial court sentenced him as a Range I

offender to eleven y

ears incarceration. The def endant now appeals and raises the followi ng is sues: (1) whether the trial court erred by not granting a mistrial when a detective improper ly testifie d that the

Defend ant was “ well know n for home invasions ,” (2) whether t

he state failedto disclo se fin gerprint evidence in a timely fashion, and (3) whether sufficient evidenc e supported the defendant ’s con viction fo r agg ravate d robber

y. F inding th at the tri al court

erred i n denying the motion to declare a mistrial, we reverse the judgment of the trial court and remand for a new trial. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court Reve rsed.

J AMES C URWOOD W ITT , J R ., J., deliver ed the opinion of the

court, in which J OSEPH M. T IPTON , J., joined. R OBER T W. W EDEMEYER , J., filed a dissenting opinion.

Keith E. H aas, Sevierville , Tennes see, for the Appellant, De

metrius H olmes.

Pa ul G. Su mm er s, At to rn ey G en er al an d R ep or te r; El iz ab et h B . M ar ne y, A ss is ta nt At to rn ey General ; Randall E. Nichols, Distri ct Att orney Ge neral; and G. Scott Green, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

The defendant, Demetrius Holmes, was charg ed with the aggravated robbe ry of Sam Love. Prior to trial, the trial court granted the defendant’s motion in limine and instr ucted the state to ref rain from mentioning or using in evidence any prior bad acts that the defendant may have commi tted and any c onvictions that the defendant obtained prior to the charge in this case. S e e Tenn. R. Evid. 404(a), (b). The defenda nt also filed a pretrial motion to dismiss in which he alleged that the state failed to disclose exculpatory e vidence in a

timely manner. The tria

l court de nied this motion.-2- The victim, Sam Love, testified at trial that on July 28, 1998 at around 1:00or 1:30 p.m., a black male came to his apartment door. The inner door was open, but

the gla ss storm door
was closed. The victim’s visiting friend, Kathy Williams, asked Loveto go to the door because she didnot recognize the man standing outside the door. The man a t the door asked for directions, and wh en Love opened the door slig htly, the man “snatche d the door open” and pulled out a silver

coloredgun. Love g

rabbed the intruder and strugg led with him. After the intruder y elled for help, a second person, who had been outside until this po int, took the gun, a nd both men

made L ove lie face-down

on the floor. One of the men held the gun to his head and de man ded m oney, alt hough Love was unsure which man told him to do so. Love gave th e men app

roximately

$52. After the
men left, Love

got up as soon as he heard the door close and saw the two men heading ea st in a black Jeep. Th e n ex t d ay, in a photo lineup at the police station, Love identified the def endant as the man who knocked on his door and robbed him.

Kathy Williams testified that she was at Love’s apartme nt on the a

fternoo n of July 28, 1998. When there was a knock at the doo

r, she tol d Love

that someo ne was there tosee him. At the police station on the following day , she identified the defendant as the man who was at L ove’s door. Williams testified that as Love was talking with the de

fendant at the doo

r, the defendant

held
a silver-looking gun. Williams ye lled for the man not to hurt Love and then ran out the back door. While outside, Wil

liams saw

a black Je ep Chero

kee with t

he drive r’s si de dooropen. Willia ms testified that she saw the defendant and another man come out of Love’s apa rtment, get into the Jeep, and drive away

.

The day afte

r the robbery , James Quick o f the Knoxville Police Department was dispatchedto Blount C ounty to locate the defe ndant. Quick found the defendant driving a black Jeep Cherokee. Quick searched the vehic le and found a Lorcin .380 ha ndgun under the driver’s seat. Terry Clower s , a detective in the Major Crimes Unit of the Knoxville Police Departm ent, testified that he investigated the robbery and inter view ed the defendant on July 29, 1998. The defendant said that he could not

have co mmitted the

robbery because he was “hiding ou

t” witha girl named “Misty ” at the Comfort Inn in Strawberry Plains. In the beginning of the interview, the defe

ndant sta ted that h is Jeep had

been stol en; however, the defenda nt later t old Clowers that he ha

d loaned t he vehic le and his gun to Mik e Tumblin. Accord

ing to pol ice rec ords, the car was reported stolen at 4:45 p.m. on the day of the robbery . Clowers stated that he let Love and Wi lliams see

the defe ndant in the police

station, a nd they both ident

ified him a s the ma

n tha t robbed Love.

Gerald

Smith, a tec

hnician i n the Investigative Support Unit of the Knoxville Police Departm ent, testified that none of

the fingerprints obtained from L ove’s storm door belonged to the defenda nt. Daniel Crenshaw, Senior Evidence Technician f or the Knoxville Po lice Dep artment, testified that none of the pr ints found matched those of the defendant or Mike Tumblin. Crenshaw also testified that Love and Williams refused to be fing erprinted.-3- Th e state an d the def

ense stipulated th at Misty Moore re

nted a hot

el room in Strawberry

Plains from July 27, 1998 until July 29, 1998 and that Moore would have testified that
on July 28, 1998, she went to work sometime between 9:00 and 11:00 in the morning and retur ned that evening around 8:00. Moore also would have testified that the defendant wa s in the room when she left that morning and when she returned tha t evening.

Based on th e e vi de nc e a s s um ma ri ze d a bo ve , t he ju ry convicte d the defendant of ag gr av at ed ro bb er y.
1. Denial of Motion for Mistrial

The defenda

nt’s firs tissue pertains to the trial court’s denial of a motion for mistrial after Detective Clowers, a state’s witness, testified that the d ef endant ha d a reput ation for home invasion c

rimes.

In order to

understa nd this issue, som

e backg round inf ormation i s helpful. Prior to jury selectio n, on the f

irst day of trial, the tria

l court he ard arg

ument on se

veral de fense mo tions, including “a standard motion in limine about prior bad acts and/or convictions that Mr. Holmes may have.” The trial court instructed the state , “Appro ach the b ench be fore y ou raise any prior ba d acts. Get permission, Mr. G ree n. The rule requires that.” The recor d indicates that Detective Terry Clow ers was presen t in t he cou rt roo m when the tr ial co urt ma de thi s ruli ng.

Later, during cross-examination of Detective Clowers, defe nse cou nsel as ked Clowers, “Why did y

ou put a BOLO out on Kamikas Cates?” Clowers responded, “Kamikas Cates is well know n for home

invasions, just as Meechi is.” “Meechi” is a nickname for the defe ndant that
was used numerous times during the trial. The defense moved f or a mistrial, a

lleging that this comment by Detec tive Clowers violated the trial court’s ruling on the motion in limine pertaining to prior bad acts. The trial court ruled that the statement did not

refer to a specific prior bad act but
was an expression of the officer’s opinion of the defendant. The trialcourt did not declare a mistrial butinstructed the jury that De tective Clowers’ comment was to be disregarded as “unsubstantiated opinion.” The defendant arg ues that Detective Clowers’ comment was so prejudicial to the defendant that the curativ e instruc tion faile d to ensur e that the defenda nt would receiv e a fair

trial.

In order to

resolve th is is sue we must first determine whether the evidence of the defendant’s reputation for committing home invasion crimes w as admissi ble, and i f not, whe

ther its injection into the evidentia

ry arena necessita

ted a mistr

ial. Tennessee law provides that evidence of a person’s character or

a trait of character is not admissi

ble for th e purpose of provin g actio n in confo rmity with the charact

er or tra it on a particular occasion. Tenn. R. Evid. 404(a). Evidence of other crimes, wrongs, or prior

bad actsis notadmissible to prove the character of a per son in order to show act io n in conformity with the character trait. Tenn. R. Evid. 404(b). Because prior bad acts may be admissible for other purposes and Tennessee Rule of Evidence 404(b) requir es a hearing outside the jury ’s presence, the trial-4-

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

When Detecti ve Clower s informe d the jury that th e defendant had a reputation for burglarizing homes or

robbing the occupants, he injected inadmissible evidence into the tr

ial. This evidence was particularly damaging because it informed the jury that the defendant had a reputation for committing crimes similar to the offense on trial. State v. Rickman , 876 S.W.2d 824, 828 (Tenn. 1994) (The use of evidence of prior c rimes similar

to the offense on trial is particularly hazar dous because it carries with it the risk that the jury will convict the defe ndant bas ed upon hi s propens ity to commit the

crime, r ather th an upon the streng th of the state’s evidence.). Prohibiting the use of his sort of evidence is at thevery hea rt of Rule 404(b). See, e. g., State v. Moore , 6 S.W.3d 235, 237 (Tenn. 1999). Moreover, the state offers no rationale that a “material issue exists other than conduct conform i ng with a cha

racter trait” th at would ju stify

the use of

the infor mation pur suant t o Rul e 404(b)(2), and we discern no such issue. See generally State v. McC ary , 922 S .W. 2d 511, 514 (Tenn. 1996) (evidence of a criminal defenda nt's character may

become a dmissible when it log

ically tends to prove material issues which have been divided into three categories: (1) the use of " motive and common scheme or plan" to establish identity , (2) to es tablish the defenda nt's inte nt in committing the offe

nse on tri al, and ( 3) to "r ebut a cl aim of mistake or accide nt if asse rted as a defense"); State v. Luellen , 867 S.W.2d 736, 7 40 (Tenn . Crim. App . 1992) (“ Only in an exceptional
case will another crime, wrong, or bad ac t be relevant to an issue other than the acc used's character.”). Furthermore, filtering the information via cha racterizing it as the officer’s opinion does not sanitize the otherwis e inadmiss ible information and is, therefore, unavailing. The bottom line is that th e inform ation has no legitimate probative value and was extremely prejudicial. Had the defendant the oppor

tunity to obtain a

pre-ad mission Rule

404(b)( 1) hear

ing, the trial cou rt would have been constrained to exclude the evidence.

Having determine d that the evidence off ered by D etective Clowers was inadmissable,
we therefore consider whether the tria l court erred in deny

ing the defenda

nt’s motion

for a mist rial. The granting or denial of a mistrial is a matter within the sound discretion of the trial court. State
v. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This co urt wi ll not disturb such a decision absent a

finding of an abu se of discretion. State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996) . "The purpose for declaring a mistrial is to correct damage done to the judicial processwhen some event has occurre d which prec ludes an im partial verd ict." Id. A trial court should grant a mistrial on

ly when it is of "manifest necessity ." Id. ; Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977).

Alth ough Tennessee courts do not apply any exacting

standard for

determining when
a mistrial is necessary a

fter a witness has injected improper testimony, w e have often considered (1) whether the improp er testimon y resulted fr om questioning by the state, r ather than having been a gratuitous declaration, (2) the relative strength or wea kness of the state’s proof, and (3) whether the1 The se fac tors are n on-e xclu siv e and may not be pertinent i n every case. Will iam Dotson , slip op . at 9; see S tate

v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993) (deter minat ion o f prop riety of m istrial is not sub ject to m echa nistic determination and should be made on the facts of each i ndividual case).
-5- trial court promptly g ave a curative instruction. 1 See State v. William Dotson , No. 03C01 -9803-CC00105, slip op. at 9 (Tenn. Crim. App., Knoxville, June 4, 1999). That analytical frame work is helpful in the case at bar.

The prosecu

tion was not at fault

in eliciting the ev

idence i n this case, as De tective Clowers made his improper declaration during cross-e xamination by the

defense. However, as a law enforcement officer testify ing for the prosecution, Detective Clowers is an a gent of the state. The record reflects that he was in the courtroom when the judg e ruled that the prosecut or m ust obtain permission before intro ducin g bad act e vidence about the defendant. Through his spontane ous declaration, Detective Clowers circumvented the court’s ruling as well as the rules of evidenc e.
The streng th of the state’s case was not grea t, particularly a s compared with the magnitude of this er

ror. The defenda nt’s tria l st ra te gy was that he was not the offender. The soundnes s of the state’s case rested upon credibility of the victim and h is female friend. The defendant challenged their identifications of him. The absence of the defendant’s f ingerprints on the victim’s door arguably

belies Love’s and Williams’ identifications of the defendant as the offender. Thus, the state’s case is n ot so over whelming as to ren der inef

fectua l the eg regiou s violation

of Rule 404(b). See State v. Mo ore , 6 S.W.3d 2 35, 239 (Tenn. 1999) (“the line between harmless and prejudicial error isin d irect proportion to the degree . . . by which proof exceeds the standard required to convict”) (citation omitted). In our view, the evidentiary e

rror may well have

been the deciding fa ct or fo r t he ju ry, allowing them to conclude that “because he did it once, more than likely he did it ag ain .” State v. R oberts , 703 S.W.2d 146, 147 (Tenn. 1986) (emphasis in original).

Fi na ll y, we consi der whe ther the evidenti ary

error w as a

bate d by the judge ’s cautionary

instruction. The judge declined to give the instruction contempora ne ou sl y t o the objection to the tes t imony but waited until the conclusion of the cross- examination and redirect examination of the witness (which inci d entally closed the state ’s proof in the case). Compare WilliamDotson , slip op. a t 11-12 (m

anifest n ecessity for mistrial existed because jury was not given curative instruction regarding improper evidence u ntil the following day) with State v . Hall , 976 S.W.2d 121, 147-48 (Tenn. 1998) (appendix) (improper evidence of defendant’s prior crime did not require granting of mistrial becau se trial co urt immediately ga ve a curative instruction). More impor ta ntly, the instruction given was not curative. While instructing the jury to disreg ard the remark about the de fendan t havi ng a reputat i on for hom

e invasio ns, the tr

ial cour t premise d its directive upon the remark being “Office Clowers’ unsubstantiated opinion.” A reasonable juror may well have concluded that had the opinion been substantiated -- or that if it were in fact based upon substantiated fact s -- the information it imparted to the jury would be justiciable. T he trial court failedto indica

te disapproval of the information, except in the form in which it was delivered. The jury was not informed of the impermissible danger of propensity evidenc e. It was not told that the remark was inadmissib le evide

nce and that its inadmissibility formed the basis for the requir ement-6-

that they disreg ard the remark. This particular instruction failed to aba te the prejudicial impact of the testimony.

When the fore going factor s a re con sidered, the prejudicial effect of the improper
ev idence is palpable. We conclude that the opportunity for an impartial verdict was lost, thereby creating manifest necessity f or a mistrial. See Williams , 929 S.W.2d at 388. The trial cou rt should have granted the

defendant’s motion for a mistrial. See, e.g., Sta te v. Blankenship , 214 Tenn. 355, 410 S.W.2d 159 (1966 ) (trial court should have granted mistrial after sta te’s witness testified that defenda nts had at fi

rst plead ed guilt y bu t later w ithdrew t

h eir pleas); State v. David Johnson , No. W1998-0 0687-CCA- R3 -CD, slip op. at 10-15 (T enn. Crim. App., Jack son, Mar. 14, 2001) (in cont ext of defendant’s double jeopardy challen ge, ap

pellate c ourt held

that tria l court ha d proper ly granted mistrial after prosecutor’s improper questioning of witness re sulted in testimony that the defendant “just go t out of jai l” and “a lway s goes a

round rob bing pe ople”). Accord

ingly , we must revers e the c onviction and remand the case for a new tria l in which the improper, inflammatory evidence of the defendant’s reputa tion for committing home invasion crimes is not injected. 2. Exculpatory Evidence.

The defendant argues that the state failed to disclose fingerprint evidence in atimely fashion. Pursuant to Brady v. Maryland , 373 U.S. 8 3 (1963), defense counsel requested

the resu lts of “any scie ntific tests or expe riments” performed by or known to the state and “[a]ll information of whatever form, source or nature w hich tends to exculpate the defendant.” However, the state did notprovide the results of fingerprint analy ses conducted on Love’s storm door until the we ek before trial.

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

1. The def

endant mu st have r

equeste d the info

rmation ( unless the

evidenc e is obviously excu lpa tory, in which case the state is bound to release the information whether requested or not); 2. The state must have suppressed the information; 3. The information must have been favorable to the ac cused; and 4. The inf

ormation m

ust have b een mate

rial.

State v. E dgin , 902 S.W.2d 387, 389 (Tenn. 1995). However, a delaye d disclosure of exculpatory information, as opposed to a complete failure to disclose, may not be a Brady violation unless the delay causes prejudice. State v. Joan Elizabeth Hall , No. 01C01-9710-CC-00503 (Tenn. Crim. App., Nashville, Jan. 28, 1999). In cases of delayed disclosure , the inquiry is whether the de lay preve nted the defense from

effectively

preparing for and

presenting the defendant’s case

. State v. Caughron , 855 S.W.2d 526, 548 (Ten n. 1993); see United

States v, Bagley , 473 U.S. 667, 682, 105 S. Ct. 3375, 3384 (1985) (failure to respond to Brady request may impair a dversary process because d ef

ense-7-

“might abandon lines of in depende nt investig ation, defenses, or trial s trateg ies that it otherwis e would have pursued”).

In this case, the defendant failed to show that he was pre judiced by the dela

y. The information was provided to him the week before trial, and he wa s able to use it at trial. Defens e counsel thoroug

hly cross -exa

mined Detective Clowers at trial and established that none of the fingerp r ints taken from the door matched those of the defenda nt. We find no error in the Brady claim. At any rate , the disclosure was made well in advance of the retrial that we have now ordere d on remand. 3. Sufficiency of the Evidence.

The defendant argues that insuf ficient e vidence was pre sented a

t trial to convict h im of aggravated robbe

ry. I n particular, he claims that the only direc t evi dence regarding the identification of the perpetrator was the testimony of Sam Love an d Kathy Williams, and he contends that their statements were contradictory

.

When an accused chal len ges the sufficiency of the evidence, an appellate court’s standardof review is whether, after consider ing the evide nce in t he light most favorable to the prosecu tion, any rationa l trier of fact could have f

ound the e ssential e

lements of the cr

ime beyond
a reasona ble doubt. Tenn. R. App. P. 13(e) ; Jacks on v. Virg inia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to finding s of guil

t basedupon dire ct evi dence, circumstantial evidence, or a c ombination of both direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence, this court should not re-weigh or reevaluat e the evidence. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this cou r t substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs , 995 S.W.2d 10 2, 105 (Te nn. 1999) ; Liakas v. S

tate , 286 S.W.2d 856, 8 59 (Tenn. 1956). Questions concerning the credibility of the witnesses, the weight and value of the evide nce, as w ell as all factual issues raised by the evidence are resolved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must affo rd the Stat e of Tennessee the strongest leg itimate view of the evidence containedin the record, as well as all reasonable inferences w hich may be dra

wn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Beca use a ver dict o f guilt removes the presumption of innocence and r aise s a presumption of guilt, the convicted defendant bear s the burden of showing that the evidence was le gally insuff icient to sustain a guilty ver dict. Id.

Even though issues of cred ibility were ra ised at tr ial, the e vidence was clea rly sufficient to support the defendant’s co nvicti on for ag grava ted robbe ry . Both L

ove and Williams identified the defendant in a photo lineup and in court as the man who robbed L ove. Love testified that when the robbers left his apartment, he looked outside and saw the men drive away

in a black Jeep. Williams, who was already outside whe n the robbers fled, testified that she also saw two men-8-

come from L ove’s ap artment a

nd get in to a black Jeep Cher

okee. L ove and Williams also

both testified that

the man who knocked on the door had a silver-colored g un. When the defendant was found by police, he wa s driving a black Jeep Cherokee, and in it police found a silver-colored g un similar to the one described by Love and Williams.

The jury obviously

accredited the testimony

of the state’s witnesses. Although there is some discrepancy

in the witnesses' descriptions of the defe ndant, it iswithin the jury's provinc e to determine the cre dibility of the wit nesses a nd to resolve the factual issues raised by the evidence. State v. Williams , 920 S.W.2d 247, 254 (Tenn. Crim. App. 1995).

Becau se the trial

court shouldhave declared a mistrial, the judgment of the trial court is rever sed, and

the case is remand

ed for a new tria l.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE