### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 6, 2001 Session STATE OF TENNESSEE v. JASPER EVERETT STEW ART Direct Appeal from the Circuit Court for Tipton County

No. 3794 Joseph H. Walker, Judge

No. W2000-01752-CCA-R3-CD - Filed January 4, 2002

A Tipton County jury convicted the defendant of first degree felony murde r, especially aggravated robbery, and theft under $500. The trial court sentenced the de fendant to concurrent

sentences of life with the possibility of parole for first degree felony murder, 20 yea rs for especially aggravated robbery, and 11 mon

ths and 29 d ays for t

heft. In this appe al, the de

fendant contends : (1) the trial court errone ously admitted his tape-recorded telephone calls from the jail a nd items se

ized fr om his residence; (2) the s tatefailed to turn over all taperecordings of his telephone conversations pursuant to his discovery request; (3) the t ri al court erroneously permitted a state witness to respond to an “open-ended” question in narrative form; and (4) the trial court err oneously neglected to instruct the jury concerning the definition of specific intent. We aff irm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the cour t, in which G ARY R. W ADE , P.J., and T HOM AS T. W OODALL , J., joined.
F. Glen Sisson (at trial) and K. Jayaraman (at trial and on appe al), Memphis, Tennes see, for the appellant, Jasper Everett Stewart. Paul G. Summers, Attorne y General and Reporter; J. Ross Dyer, Assistant Attorney Gener al; and Elizabeth T. Rice, District Attorney General, for the a ppellee, State of Tennessee.

OPINION FACTS Although the defendant does not challenge the sufficienc y of the evidence, we give the following recitation of facts to place the issue s in proper per spective. On March 22, 1999, the defendant e nt ered Lewis Smith’s small grocery store near closing time. The def endant informed Smith that someo ne was o n the hood of a t ruck in th e parkin g lot. Afte

r closing the store , Smith proceeded

outside armed with a pistol and carrying a box of groceries. He

did not see the individual-2-

the defenda

nt descr ibed. Smith

placed t he pist ol on the seat of his vehicle while he loaded the groceries. The defendant grabbe d the gun and fled. Sgt. Jerry Dyson responded to a call that evening and saw the body of the deceas ed victim, a cab driver, on a road near the Tipton County Airport. The vic tim had been shot in the face. Dyson observed broken glass, a pistol, andthe victim's wallet on the scene. The victim's wallet contained no cash, and the cab wa s not at the scene. The victim's cab with a broken driver’s window was found abandoned in a fi eld near the airp ort th e following day. When John Roger Hall, a Tipton County Public Works employee, was returning from lunch that day, he saw the defendant walking down the road towards the airport approximately 3/4 mile from the ca b. The defendant gave a statement to officers. The defendant admitted he had r idden in the victim’s c ab appro ximately o ne month pr ior, but c laimed he

did not see

the victim

on the nightof his death. The defendant explained he had visited fr iends wh o lived near

the airport, but when officers contacted those individuals, they did not corroborate the de fendant's claim of alibi. The defendant's parents authorized a sea rch of the residence, where the defend ant also resided, and executed a written consent form. The defendant also verbally conse nted to a search of his room and executed a written consent to searc h form. The defendant's mot h er tende red tenn is shoes and a bloody pair of underwear to office rs saying the defendant wore them earlier in the da y. Officers also found a bloody corduroy jacket and a pair of blue jea ns in the bathroom. The defendant stated he found the cab with the window already broken, and he “just got in it and started driving it.” The defendant was then placed under arrest. Captain Timothy Min

ner was supervis or of the

Tipton Coun

ty Jail, and he was in charge of operating the equipment used to record inmate phone calls. He testified the defendant was warned his phone ca

lls would be

record ed. A por

tion of a phone ca

ll made by the defen dant to a f amily member was played to the jury. In it, the defendant conceded, “I did do it, but it wa s an acc ident. I was trying to rob the guy.” The defendant testified hehad a drug prob lem which

he suppor

ted by thefts and dr

ug sales. He said on March 22 nd he ingested crack cocaine, crystal methamphetamine, LSD, marijuana, and alcohol. The defendant conceded he took Smith’s pistol so he could exchange it for crack. The defendant said he took the gun to a crack house, but the drug dealers ref used to trade for the stolen gun

because the defendant was already indebted to them. He later got a cab, which was driven by the victim. He said he subsequently asked the victim to let him out near the airport, but the victim saw the defendant’s gun and grabbed for it. He said they struggled for the weapon, and it discharged, shooting the victim in the head. The defendant removed the victim from the c ab, placed the stolen gun near him, and took his money and cab. The defendant testified he had no intent to either shoot or rob the victim. The jury convicted the defendant of felony murder, especially aggravated r obbery, and theft of the pistol.-3- I. SEIZED ITEMS The defendant contends his reco rded ph one conversations and the items seized from the residence should have been suppressed. The issue concerning the phone conversation s is waived since the defendant has failed to submit argument, make appropriate reference s to the re cord, or cite any authority. Tenn. Crim. App. R. 10(b); State v. Schaller , 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); State v. Turner , 919 S.W.2 d 346, 358 (Tenn. Cri m . App . 1995); see also Tenn. R. A

pp. P. 27(a)(7) and (g). The defendant has properly perfected appellate review concer ning the items seized from his residence, but we find the seizure wa s lawful. A. Standard of Review The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unless the evidence contained in t he re cord preponderates against them. State v. Ross , 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fa ct, i s a ble to assess the credibi lity of the witnesses, determine theweight and value to be afforded the evidenc e andresolve any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The application of the law to the facts found by the trial court are questions of law that this court r eviews de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). B. Suppressio n Hearing Testimony
At the suppression hearing, the state offered the testimony of Capt. John Fletcher , Lt. Ronnie Coleman, Investigator Scottie Delashmit, and Lt. Tim Minner. Their testimony e stablishe d Capt. Fle tcher a rriv ed at the defendant’s residence at approximately5:00 p.m. on March 23 rd . The def endant vo luntarily

agreed to be transported to the justice center where he answer ed questions. During questioning, the de fendant asserted several alibis, but when officers contacted the p roffered a libi witnesses, they refused to corroborate the defendant’s statements. The defendant requested to be transporte d home, and h is re quest was honored.
Lt. Coleman testified he and Investigator Delashmit entered the reside nce, told the defenda nt’ s parents they were investigating a murder, and requested pe rmission to search. When the defendant’s parents inquired why, Lt. Co leman told

them “the

ir son’s a libi to his wh

ereabo uts

. . . wasn’t adding up.” The defendant’s pare nts agreed to the search and exec uted a written consent form. Additiona

lly, the de

fendant submit ted to a search of his bedroom and executed a written consent form. The defendant’s mother then told officers that some items had been washed, and she obtained a pair

of tennis shoes and blue jeans from the laundry room. The defe ndant’s mother

also handedthem a pa

ir of bloo dy under

wear ob tained f

rom t he bathroom

. I nvestiga

tor Scottie

Delashmit corroborated Coleman’s testimony.-4-

The defendant’s mother testified officers arrived at approximate ly 5:00 p.m. on March 23 rd and asked to speak

withthe defendant. They informed her “they we re checking on some incident,” butthey did no t tell her

they wer e investig ating a murder. The officers asked the def endant if he would come with them to the station, to which he agreed. She said the officers returned an hour later withthe defe

ndant in the back of the patrol car. They inquired if they c ould conduct a search of the residence, to which she agreed and executed a written consent form. She testified she was not informed officers were

looking for evidence concerning a murder, and if she had bee n informed, she would not have granted them permission to search. On cross-exa mina tion, she c onceded she tendered to the officers bloody underwear and told of

ficers t he defe ndant had washed s ome items. C. Analysis
A well-settled exception to the warrant requireme nt is a search conducted p ursuant t o consent. State v. Bartram , 925 S.W .2d 227, 230 (Tenn. 1996). The determination of whether a consent to searchwas voluntarily given is a question of fact to be determined from the totality of the circumst ances. State v. McCrary , 45 S.W.3d 36, 43 (Tenn. Crim. App. 2000). The trial court entered detailed written f indings, concluding the con sent give n by the de

fendant and his parents was voluntar ily and knowingly given without deception or coercion. Th e evidence does n ot preponderate against this finding. This issue is without merit.

II. TAPE REC ORDINGS The defendant contends thestat e violated Tenn. R. Crim. P. 16 by failing to provide the defendant with copie s of all histape-r ecorde d telepho ne conve

rsations pur suant to his discovery request. We are unable to find a discover y violation. Tenn. R. Cr

im. P. 16(a

)(1)(A ) provide s: Upon request of a defendant the State shall perm it the defendant to inspect and copy or photograp

h: any relevant wr

itten or r ecorde d stateme

nts ma de by the defendant, or copies thereof, within the possession, custody or control of the State, the existence of which is known, or by the exe rcis e of due d

iligence may beco me known, to the district attorney general . . . . The defenda

nt conten ds the sta

te provid ed him with

only two tapes containing his recorded conversations, and the state possessed additional tapes. In furtherance of his position, he cites the testimony o f Captain

Minner a s follows: Question: [D]o you know . . . how many conversations you tape recorded, do

you know? Answer: I think I sa id approx imately si x or seve

n. I cann ot exact

ly reca ll. Question: And did you pro vide those six or seven tape recordings to the counsel for the s tate, to th

e Distric t Attorne

y Gener al?-5-

Answer: I believe the District Attorney had accessto the tap es. I don’t r eally know. I think I turned them over to Captain Fletcher. Question: Six tapes, are you saying? Answer: No, no. Several conversations were on two tapes, I be lieve. During a bench conference, the defendant argued “the witness has stated tha t he rec orded six different conversations, and

there are only two tapes which I remember to have received . . . .” The state informed the court tha

t the def ense was provided with a copy of all tape recordings, which the trial court implicitly found.
B ased upon the r

ecord be fore us, we are

unable to

disturb the

ruling of the trial court. Captain Minner testified six or seven conversations were recorded o n two tape s. The prosecuting attorney stated all tapes were provided to defense c ounsel. Although the defendant alleges there were recorded conversations not provided to him, we f

ind no authority in the

record to support

his position. This issue is without merit.

III. NARRATIVE TESTIMONY During the

testimony o f the med

ical exa miner, Dr . O’Bria

n C. Smith, the

state inqu

ired: Next, would you please describe to the ju ry the conduct of your autopsy and tell them about the gunshot wounds, t his nea r gunshot wound, where it entered, w here i t left the body, whether you recovered the bulle t? I think i

t would be easier, instead

of my asking questions , just to let you go ahead and tell them what you know about this. After a respon se by Dr. Smith cove ring appr oximately 55 lines in

the record, the defendant lodged the following

objectio n: “Your

Honor, a t this point I would object, Your Honor. The question [sic] is not responsive.” The trial court overruled the objection. Defendant now c ontends the question was improper because it was an “open- ended” question calling for a narrative re sponse. Tenn. R. Evid. 611 (a) pro vides, “[ t]he cou rt shall e xer cise appropriate control over the presentation of evidence and conduct of the tria l when necessary to avoid abuse by counsel.” We recogni ze that [t]he problem with these expansive queri es is that they allow the

witness to bring in much irrelevant infor mat ion and do not give opposing counsel any hint that the witness may be entering forbidden territory. Courts differ

markedl y in their r

eceptivity to these

questions

. Some al low them and others do not. Under Rule 611(a), howe ver ,-6- judges should allow counsel to present evidence and conduct the trial unt il counsel abuses its responsibility. This means that coun se l should be permitted to eli cit narr ative que stions that

do not unduly waste time or do not encou rage th e jury to hear ina dmissible evidence. Neil P. Cohen, et al., Tennessee Law of Evidence § 6.11[8] (4 th ed. 2000).
A condition

preced ent t o appel late review of this alleged error is “a timely objection . . . stating the specific ground.” Tenn. R. Evid. 103(a)(1). The de fendant’s objection at trial was that the answ er was unr esponsive, which the trial court overruled. On appea l, the defendant now contends the state

asked a compound question that invoked an improper narrative response. Since an appella

nt cannot change theories from the trial court to the appe llate court, this issue could be considered

waived. State v. Dooley , 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000) . Never theless, we will address it.
The propriety, scope, manner and control of the exa minat ion of wi tnesses are within the sound discreti on of the t

rial cou rt. State v. H arris , 839 S.W.2d 54, 72 (Tenn. 1992). Here, we find no abuse of

discreti on by the tr

ial cour t. The na rrative response by the exp ert witne ss w as no t a waste of time, was relevant, and did not contain inadmissible evidence. This issue lac ks merit.

IV. JURY INSTRUCTIONS The defendant contends the trial co urt erred by failing to define

the “spe cific int

ent” requirement

for felo ny murder ; namely, the spec ific inte nt to c ommit the underlying felony of robbery. The state contends the trial court fully and fairly stated the law. We agree with the state. A. Jury Charge The rele vant port ion of the jury instr uction is a s follows: Any person w

ho commits a

first degree murder is guilty of a crime.
For

you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the e xistence of the following essentia l element s: (1) that the defendant unlawfully killed the alleged vi ctim; an d (2) that the killing was committed in perpetration of or th e attempt to perpe trate the alleged robbery ; that is, that the killing was-7- closely connected to the alleged robber y a nd was not a separate, distinct, and independent event; and (3) that the d

efenda nt intende d to commit

the alleged

robbery. “Intentionally” means that a person acts intentionall y with respect to the nature of the conduct or the result of the conduct

when the person’s conscious objective or desire is to engage in the conduct or cause the result. Immediately thereafter, the trial court instructed the jury a s to the elements of robbery. B. Analysis The jury charge was based upon pattern jury instructions. See T.P.I.-CR IM. 7.03(b) (5 th ed. 2000). Ho w ever, pattern jury instructions are merely patterns or suggestions and have not been officia lly approved by an appellate court or the gene ral assembly. State v. Hodges , 944 S.W.2d 346, 354 (Tenn. 1997). Reliance upon an erroneous patter n jury instruction does not alleviate error. Our supreme court has recently a ddre ssed the issue of the necessity of special jury instructi ons. It stated

that “[t] he prope

r functio n of a spe cial instr uction is to

supply an omission or correct a mistake made in the general charge, to pre sent a material question not treated in the general charge, or to limit, extend, eliminate, or more accura tely def ine a pro position a lready s ubmitted to the jury.” State v. Cozart , 54 S.W.3d 242, 245 (Tenn. 2001). We will reverse the denial of suc h a charge “only if the jury was unfairly instructed on the legal issues or was misled regarding the applica ble law.” Id . Denial o f a spec ial requ est is err or only if the trial court’s charge

does not f

ully and fairly st

ate the applicable law. State v. Forbes , 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). If the instru ctions fu lly a nd fairly state the law, any special request for fur ther instr uctions sh ould be in writing. See Tenn. R. Cr im. P. 30(a); Lackey v. State , 578 S.W.2d 101, 108 (Tenn. Crim. App. 1978).
In this case we conclude use of the pattern jury instruction was proper. After the jury charge, the defenda

nt orally r

equeste d a speci a l jury instruction on the “[d]efinition of specific intent as opposed to general intent.” A written request was never sub mitted to the trial court, nor has the defendant set forth a proposed jury instr

uction in h

is brief in this court. We find no inaccuracy in the pattern jury charge. It advised the jury the defendant must have “intended to commit the alleged robbery.” It further defined the elements of robbery. There w as n o reason for any additional instructions.

CONCLUSION Based upon our examination of the record, we af firm the judgments of the trial court.-8- ___________________________________ JOE G. RILEY, JUDGE