### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. REGGIE RA MONT JONES Direct Appeal from the Criminal Court for Haywood County

No. 3071 William B. Acree, Jr., Judge

No. W1999-00898-CCA-R3-CD - Decided August 18, 2000

The defendant was found

guilty of aggravated robbery, theft over $10,000 and felonious escape. The trial court merged the theft conviction into the aggravated robbery conviction. Defendant received a ten-year sentence for aggravated robbery and a consecutive one -year sentence for felonious escape. The defendant raise

s the followin

g issues for revie

w: (1) whether th

e defendant's pr

osecution in HaywoodCounty for aggrav ated robbery, f

ollowing an acquit

ta l for the same offense in federal court, violated double je

opardy; (2) whet

her the trial cou

rt erred in failing to grant a new trial when it was discovered that a juror had a prior felony conviction; and (3) whether the defendant wa s improperly

convicted of

both aggravated robbery and the lesser-included offense of theft. Upon a review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed.
R ILEY , J., delivered the opinion of the court, in which T IPTON and W ILLIAM S , JJ., joined. David W. Camp, Jac

kson, Tennessee

, for the appella

nt, Reggie Ramont Jon

es. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Clayburn L. Peeples, Distri ct Attorney Gene

ral; a nd T heodore H. Neumann, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
FACTS

On December 22, 19

97, Carlton Sh

aw and Alex Jones, defendant’s brother, entered the Vol unteer

Bank in Brownsville, Tennessee. Witnesses testified that the men were wearing l on g trench coats, masks, hats and gloves. A teller at th e bank testified that Jones reached around a customer and pointed a

gun at her and

demanded money. After Shaw and Jones were given money, they fled the bank

and ran across the parking lot near Church Street. Agent Adams of the Tennessee Bureau of Investigation f

ound two coats, sev

eral hats, a pink stocking and pieces of a dolla

r bill in-2-

the alley near the bank. The bank manager testified that the total amount stolen was $14, 292.
Another teller testified that

a strange man, later identified as Carlton Shaw, entered the bank earlier in the day and was “looking around.” Shaw asked her where he could get a hair cut and then exited the bank. Following an extens ive investigation, the authorities interrogated the defendant. The defendant told F.B.I. Agent Lewoczko that he received a call from his brother, Alex Jones, on the day of the robbery. He stated his brother asked him to pick up Shaw and him on Church Street. The defendant stated that

when he arrived at Church Street, neither his brother nor Shaw was there. He then received a ca

ll on his cell phone, and his brother told him to come to Shaw’s residence. He said that when he picked the two men up at Shaw’s house, they informed him they had just robbed the Volunteer Bank and had worn women’s clothing, which they discarded in the alley near the bank. The defendant

stated that he drove the men to Jackson and rented a room at the Ramada Inn. A night clerk at the Ramada Inn identified a receipt indicating the defendant rented the room. The defendant told Agent Lewoczko he received $500 that eveni ng, and th at he later rec eived $490 from his brother. At trial, however, the defendant denied giving much o f th e information contained in the alleged statement.
The most damning testimon y came from Carlton Shaw, who testified that the defendant and defendant’s brother plann ed the ro bbery. He stated his job was to go in and check the bank out before the robbery and then rob the ba nk with Alex Jones, who would be armed. He further stated it was the defendant who suggested the two dress in women’s clothing, and that the clothing he and Alex Jones used belonge

d to the defendant’s deceased mother. He testified that the defendant took him to the bank

so that he could “c

heck it out.” Afterwards, he and Alex Jones robbed the bank, ran to Church Street, an

d hid until the defendant picked them up. Shaw testified that the defendant then drove them to Jackson; defen dant rented a hote

l room at the Ramada

Inn; and the three

men split the money from the robbery.
Defendant

was first indicted on federal bank robbery charges and was acquitted after a trial. Shortlythereafter, th

e defendant was

arrested on th

e sub ject state charges. While at the police station, the defendant fled and escaped custody. He was apprehended approximately fifteen minutes later.
The jury found the defendant guilty of aggravated robbery, theft over $10,000 and felonious escape. He received a ten-year sentence for aggravated robbery and a consecutive one-year sentence for felonious escape. The trial court merged the theft con viction into the aggravated robbery conviction.
I. DOUBLE JEOPARDY
The defendan t first argues that his p rosecution for aggravated robbery, following his acquittal in federal court for bank robbery, violated t he principles of double jeopardy. He contends the evidence presented at both trials was virtually the same. Therefore, he argues the state prosecution-3-

was a “sham,” and the dual sovereignty doctrine does not apply.
We first note that we do not have the record of the federal prosecution before us. Neither the federal indictment nor a transcript of the federal proceeding is in the record. Several

state witnesses stated that they testified in the federal prosecution where defendant was acquitted. Without a proper record, however, we are unable to make any meaningful determination as to the evidence presented at the federal trial. The failure to present an adequate record preclude s relief. State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 199 3); State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).
Neverth eless, even if we could make that determination, we find the dual soverei gnt y doctrine is applicable to the state prosecution. The long-standing doctrine regarding prosecution by dual sovereignties is expressed in United States v. Wheeler , 435 U.S. 313, 98 S Ct. 1079, 55 L.Ed.2d 303 (1978). “[A] fe

deral prosecuti

on does not bar a su

bsequent state

prosecution of the

sameperson for the same acts, and a state prosecution does not bar a federal one . . . [P]rosecutions under the laws of separate sovereigns do not . . . subject [the defendant] fo r the same offence to be tw ice put in jeopardy.” Id . at 317. Tennesse e courts specifically uphold and adhere to this doctrine. See, e.g., Lavon v. State , 586 S.W.2d 112,113- 14 (Tenn. 1979); Statev. Holmes , 995 S.W.2d 135, 139 (Tenn. Crim. App. 1998).
The defendant cites Bartkus v. Illinois , 359 U. S.12 1, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), contending that where a state prosecution is influenced and controlled by the federal authorities, the tr ial does not represe

nt an action by a se

parate and distin

ct sovereign; the

refore, it is

barred b y double jeopardy. He claims that the cooperation between the Federal Bureau of Investigation and state law enforcement authorities indicates the state prosecution was a “sham and a cover for [the ] federal prosecution.” Id. at 124.
Defendant

has notestablished that the state prosecution was a sham or a cover for the federal prosecution. The fact that simil ar testimony was gi

ven at both

trials and the arrest occurred only a few days after the f

ederal acquitta

l is not determinativ

e of the double jeo

pardy issue. This

issue has no merit. II. JUROR DISQUALIFI CATION
D efendant

contends one of the jurors who served in the case was a convicted felon and , therefore, notqualified to sit as a juror. See Tenn. Code Ann. § 22-1-102(a)(1). Defendant seeks a new trial based upon this alleged error. We conclud e defendant is no t entitled to relief

on this issue. A. Factual Backgro und Subsequent

to trial, defense counsel lear ne d that one of the jurors had a prior felony conviction. Evidence adduc ed at the hearing

on the motion for ne

w trial indic ated that th

e juror completed the appropriate juror questionnaire upon being summoned for jury service in Haywood County. The juror indicated on the questionnaire that he had a 1983 conviction for joyriding.-4-

Joyriding was a felony at that time. See Tenn. Code Ann. § 55-5-104. However, the juror was never advised that he was disqualified from jury service

and was ultimately

chosen on the pane

l. There is no indication that the juror misled the court as to his qualifications, nor is there any indicationthat the juror falsely answered or was even asked any questions during voir dire concer n ing prior convictions. B. Analysis
Chall enges to juror qualifications generally fall into two categories; namely, pr opte r defectum and propter affectum

. Partin v. Henderson , 686 S.W.2d 587, 589 ( Tenn. App. 1984). Objections based upon general statutory disqual ification s are considered propter defectum and generally must be challenged prior to the return of the jury verdict. State v. Akins , 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). On the other hand, objections based upon bias and partiality toward a party are class

ified as propter affectum and may be made after th e return of the ve

rdict. Durham v. State , 182 Tenn. 577, 582, 188 S.W.2d 555, 559 (1945); State v. Furlough , 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990). In the case at bar, the objection based upon the statutory disqualification of a prior felony is considered in the category of propter defectum

. Although propter defectum challenges are generally considered waiv

ed if not raised pr

ior to the verdict, there are ex ceptions. Waiver does not occur if bias is shown to exist, or if the juror answered falsely. State v. Dick , 872 S.W.2d 938, 946 (Tenn. Crim. App. 1993).
A similar scenario was presented in State v. Joseph D. Bishop , CCA No. 01C01-9309-CR00333, Davidson County (Tenn. Crim. App. filed September 1, 1994, at Nashville), perm. to app. denied (Tenn. 1995). There a convicted felon served onthe jury; however, this was not known or raised unti l after the verd ict. Finding no bias or

false answers g

iven by the juror, t

his c our t concluded the failure to raise the issue prior to the verdict precluded any relief.
We distinguish the case at bar fro m State v. Bondurant , 4 S.W.3d 662 (Tenn. 1999), and State v. Lynn , 924 S.W.2d 892 (Tenn. 1996). These two cases involved flagrant, unreasonable and unnecessary deviations from the statutory procedures relat ing to jury selectio

n. Bondurant , 4 S.W.3d at 668-69; Lynn , 924 S.W.2d at 898. Such deviations are not present in the case at bar; thus, there is no presumption of prejudice to the judicial process.
Under the gener al rule, the failure of the defendant to challenge this juror prior to the jury ve rdict waives the right to challenge the juror thereafter. Furthermore, neither exception to the general rule applies. There is absolutely no showing or any indication that the juror was biased or partial. Furthermore, there is absolutely no indication that the juror answered any qu

estions falsely withregard to the pri

or conviction. For

these reasons, th

e defendant is no

t entitled to

relief on this issue. III. THEFT CHARGE
The defendant argues that theft of property over $10 ,000 is a lesser-included offense of aggravated robbery; thus, he can not be convicted of both offenses.-5-

The record revea

ls the trial court pro perly merged the defendant’s conviction for theft of property over $10 ,0 00 with his conviction for aggravated robbery. See State v. William Jason McMahan , C.C.A. 03C01-9707-CR-00262, Knox County (Tenn. Crim. App. filed March 31, 1999, at Knoxville). The judgment of the trial court only reflects convictions for aggravated robbery and escape. Furthermore, the sentencing hearing reveals the defendant was on

ly sentenced for

these two offenses.
IV. CONCLUSION
In summary, we conclude (1) there has been no double jeopardy violation; (2) def endant is notentitled to relief based upon juror d i squalification; and (3) the trial court properly merged the theft conviction into the aggravat ed robbery conviction. Thus, t he judgment of the t

rial court is affirmed.