# FILED
January 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1995 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9406-CR-00207

) ) Davidson County v. ) ) Hon. J. Randall W yatt, Jr., Judge ) RICKY HILL KRANTZ, ) (First Degree Mur der and Aggravated Ass ault) ) Appellant. )

For the Appellant : For the Appellee : Karl Dean Charles W. Burson District Public Defender Attorney General of Tennessee and and Jeffrey A. DeVasher Christina S. Shevalier Michele S. Hall Assistant Attorney Gener al of Tennessee Sheila Jones 450 James Robertson Parkwa y Assistant Public Defenders Nashville, TN 37243-0493 Stahlman Bldg. 211 Union Street Victor S. Johnson, III Nashville, TN 37201-5066 District Attorney General (ON APPEAL) and Katrin Novak Mill er David M. Siegel Nicholas Bailey Jeff Powell Assistant District Attorneys General Assistant Public Defenders 102 Metro Courthouse Stahlman Bldg. Nashville, TN 37201 211 Union Street Nashville, TN 37201-5066 (AT TRIAL)

OPINION FILED:_______________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I ON
The defendant, Ricky Hill Krantz, appeals as of rig ht from his conviction by a jury in the Da

vidson County Cri minal Court for felony murder and aggravated assault, a Class C Fel ony. The defendant was sentenced t o life imprisonment for the felony murder convicti on and as a Range II, multipl e offender to seven years in the custody of the Department of Corr ection for the aggravat

ed assault conviction. The trial court ordered the defendant’s sentenc es to be served consecuti vely. The defendant contends that:

(1) the ev idence is insufficient to suppor t the first degree murder conviction; (2) the trial court erred by not dis missing the indictment due to the state’s failure to preser ve a blood sample taken from the defendant on the evening of the offense; (3) the trial court erred b ynot dismissing the indi ctment upon grounds of fundamental fairness becau se the defendant should not have been retried after a mistrial upon a theory that was not relied upon by the state in the first tria l; and (4) the trial court erred by all ow ing the state to use a peremptory challenge in a discriminatory manner

in violation of the Sixth and Fourteen th A mendments to the United States Constitution and in violation of Artic le I, Secti on 9 of the Tennessee Constitution. We conclude that the evidence is sufficient and that the trial court did not err as the defendant claims. We affirm the trial court’s judg ment of conviction.

The defendant was tried for the first degree murder of Dan Newl and and for the attempted first degree murder of Gary Dean Harris. The evidence related to the events that occurred duri ng the early morning hours of February 1, 1993, w hen the defendant and Jack Speakman got into an al tercation at the Next Door Tavern.
Gary Dean Harris, the victim of the aggrav ated assault and an acquaint ance of the def endant, testifie d that on January 31 , 1993, S uperbowl S unday,3

he visited

Big O’s Tav

ern at approx

imately 3: 00 p.m. wher e he drank bee r, ate some food, and watched some of the football game. He stated that he saw the defendant at the tavern.

Mr. Harris said that he then left the first tavern a nd went to the Next Door Tavern. He stated that the defendant arrived at some po int in the evening. He said that he spoke to the defendant, and he did not believe that the defendant was intoxicated. Accordin g to Mr. Harris, the defendant did not have difficulty walking and his speech was not slur red. Mr. Harris te

stified that he later saw the defendant and Kevin Williams

arm wrest ling acro

ss the room. He said that he had seen Mr. Williams but not the defendant arm wrestle at the Next Door Tavern on earlier occasions. Mr. Harris testified that he the n saw the defendant and Mr. Williams fighti ng on the floor. Mr. Harris said that

he did not know how or why the fight start

ed.

Mr. Harris testified that he and Dan Newland helped break up the fight. He said that after the fight w as broken up, the defendant left the tav ern. He stated that a while later, he w

as walking away

from the tavern's front door w hen he felt a piece of wood strike him in the b ack. Mr. Harris t

estified that he looked behind him and saw the door of the tavern open with someone standing in the doorw ay with a gun. He

said he saw Mr. Williams kick the door closed, heard a gunshot, and f elt the gunshot hit him in the back. Mr. Harris

testified that he then lost consc iousness and did not remember anything until he w

oke up in the hospital.
Jack Speakman testified that he had kn own the defendant for several years. Mr. Speakman sai d that on January 31, 1993, at appr oximately 10:30 or 11:00 p.m., he and the defendant were shooti ng pool at the Next Door Tavern when the defendant wanted to arm wrest le. Mr. Speakman stated that he told the defendant that he did not want to arm w restle but that he knew s omeone who would. He int roduced4

the defendant to Kevin Williams, a friend of Mr. Speakman’s, and the defendant and Mr. Williams agreed to arm wr estle. Mr. Speakman testified that he and another man who he did not know bet money on the first match, which Mr. Williams won. Mr. Speakman stated that the defendant and Mr. Williams then agreed to a second match.

Mr. Speakman testified that before the second match actually star ted, the defendant grabbed Mr. Williams' hand, slapped it down on the bar, and picked up the money. Mr. Speakman said that as the defendant got up to leave, he put the defendant in a neck hold and threw hi m to the ground. He stated that Mr. Williams then grabbed the money from the defendant while th e defendant was on the floor. Mr . Speakman testified that he was pulled off of the de fendant by his wife and others.

Mr. Speakman testified that the defendant got up and walked out of the tavern. He said that the defendant was angry w hen he left. He stated that Keith Walker followed the defe ndant out of the tavern to talk to the defend ant. Mr. Speakman testified that he also w ent outside the tavern after appr oximately fifteen to twenty seconds. He s

aid that he saw the defendant get into his truck. Mr. Speakman stated that the defendant was speaki ng to Mr. Walker through the truck window when the defendant yelled at Speakman, "I'l l be back to kill you,you S.O.B." He said that he also heard the defendant state that he was going to go home to get a gun and kill everybody in the ta

vern. Mr. Speakman testi fied that he heard the defendant start the truck engine, and he said that he told the defenda nt that he would not be at the tavern before he walked back insid e and told his wife that it was time to leave, and the two of them left. He said that they did not drive in the direction the defend ant went along Old Clarksville Pike to get home but rather took another direction to pick up his motorcycle at a friend’s house.5 Mr. Speakman also testified that the defe ndant did not have trouble walking or being

coordinated as he was pl aying pool. He stated that the defendant was capable of hitting the ball. He said that the defend ant did not have any trouble speaking and his speech w as not slurred. Mr. Spea kman testified that he did not believe the defendant was dr unk. On cross-examinati on, Mr. Speakman admitted that he also yelled at the defendant w hile outside the tavern. Mr. Speakman conceded that he had been drinking since the start of the football game and esti mated that he had drunk seven or eight beers. He also testified that he did not believe that the d efendant was more intoxicated than Mr. Newland or M r. Harris.

Kevin Williams testified that he ha d known the defendant for several years before the night of the shooting, and he said tha t he and the defendant had arm wrestled on previo us occasions. He stated that there was nothing ex

traordinary about the first ar

m wrestli ng match unti l the defendant accused him of cheating. Mr. Williams testified that he offered to wrestle the def endant again, but before he could get in position, the defendant grabbed his hand, slammed it on the bar, gr abbed the money that was bet on the match, and w alked towards the door. Mr. Williams stated that he then saw Jack Speakman w restle the defendant to the floor, caus ing the money the defendant was holding to fall t o the floor. He said someone pick ed up the money and handed it to him. Mr. Williams testified that the defendant left the tavern after he got up off the floor.

Mr. Willi ams test ified th at about five to ten minutes after

the defen dant left the tavern, he saw Mr. Speakman also walk outsi de. Mr. Williams said that shortly after the defendant left, Keith Walter said something to hi m that made him feel that he should leave and go home, although he decided to stay at the bar. He said that approximately thirt

y to forty minutes after the defendant left the tavern, he saw the tavern door fly open, a por tion of a long gun come in, and D an Newland falling to th e6

floor after a shot was fired. Mr. Williams testified that he then went to the door, pushed the door closed, and attempted to g rab the portion of the gun barr el sticking through

the door. He said tha t the gun was wrestled f rom his grasp and a shot was fired thro ugh the door, missing Williams but stri king Dean Harris i n the back. He stated that he then told his wife to go out the back door and he quickly followed her out. Mr. Williams said that he and his wife went to Mr. Speakman's house. Mr. W illiams testified that he could not identify the shooter becaus e he only saw the shooter 's arms and a portion of the gun.

Mr. William s testified th at the defen dant did not ha ve any trouble walking, talking or moving around as they were arm wrestling. He also stated the defendant’s speech was not slurred.On cross-examination, Mr. Williams conceded that on the night of the offense, he had been drinking for several hours w

hile at a Super Bowl par ty and also at th e tavern. H e approxima ted that he had

drunk nine beers. Mr. Williams stated that he did not believ e that he was intoxic

ated. He testified that no one w as “falling down drunk,”

including the defendant.
Martha Bryant, an employ ee of the Next Door Tavern, testified that she lived next door to th e tavern and that she was at the tavern on the night of the shooting, although she was not sch eduled to work that nig ht. She said that as she w as helping an employee clean tables, she saw the defendant and Kevin Williams arm w restling. Ms. Bryant testified that she did not pay much attention to the arm wrestling match until she saw Jack Speakman and the de fendant on the floor surrounded by s everal people. She said that she did not see any one strike or hit the defendant. Ms. Bryant stated that she heard the defendant, on his way out of the tavern, say that he was going to go get a gun and kill every

one. She said that the defendant appeared mad an d upset but that she did not notice any inj uries sustained by the defendant.Ms. Bryant testified that she7

did not take the defendant’s threat s eriously, although s he went home immediately after the defendant l eft the taver n at approxi mately 10:3 0 p.m.
Ms. Bryant testified tha t she returned to the taver n at approximately 11:15 p.m. She stated that she was da ncing with Dan New land when she saw a g un barrel through the door, heard two gunshots and then saw Mr. Newland and Dean Harris fall to the floor. She said that she w as scared and told every body to get down. Ms . Bryant stated that she then checked on Mr. Newland and Mr. Harris and called 911. Ms. Bryant testified she then saw the defendant holding “a long- barred gun . . ., like a shotgun.” She also did not see Beverly Hunter, the defendant’s cousin, at th e tavern that night.
Ms. Bryant testified that she believed that the defendant had bee n drinking, but she said that the defendant was able to w alk and that his speech wa s not slurred. In Ms. Bry

ant’s opinion, the defendant did not at any time during the nig ht of the offens e act in a way to make h er believe that he was not aware of his s urroundings or not able to understand wh at was happening. On cr oss-examination, Ms. Br yant conceded that she was not paying attention to everything that was going on because there was a big crow

d at the tavern that night

.
Rita Williams, Kevin Williams' wife, testi fied that at the time of the shooting, she had known th e defendant for five or six y ears. She said that she w ent to the Next Door Tavern w ith her husband on the night of the shooting, and she stated that while at the taver

n, she briefly spoke to the d efendant. Ms. Williams stated that the defendant’s speech was not slurred and that he did not h ave any trouble talking. Ms. Williams testified that she was not dri nking on the night of the offense.8 Ms. Williams testified that she was sitting two tables away from the defendant and her husband when the arm w restling match took plac e. She said that she was not paying much attention to the match but that she recalled see ing Jack Speakman throw the defendant to the floor and tell him to let go of the money. She stated that both she and Pam, Mr. S peakman's wife, tried to cal m Mr. Speakman so he would release the defendant. M s. Williams testified that after Mr. Speakman let go of the defendant, the defendant left the tavern. She said that she did not notice any blood or bruises on the defendant’s face. S he also stated that she did not hear the defendant say anything as he l eft.

Ms. Williams testified that approximat ely forty-five minute

s after the defendant left, she saw the door to the tavern open and the defendant standing with a shotgun. She said that she then heard a shot and saw Dan Ne wland fall to the floor. She stated tha

t she dropped

to the floor a nd then heard a second shot . Ms. Williams recalled seeing someone els e fall to the floor. She testified th at she then went out the back door where she met her husband. Ms. Williams stated that she and her husband then drove to Mr. Sp eakman's hou se and told him about the shoo ting.

Ms. Williams testified that she saw the defendant drinking beer and playing pool that night. In her opinion, the defendant did not ap pear to have trouble standing up or playing

pool. On cross-examin ation, Ms. Williams stated that she saw blood on the defendant’s face when he retu rned to the tavern with the gun. She also testified that the defendant was frie nds with both of the vict ims. She said that the defendant opened the door and fired the shot, and she stated that the defendant was looking at Mr. New

land when he shot the gun.

Keith Walker testified that he had known the d efendant for several years. He said that he was at the Next Door Tavern on J anuary 31, 1993, when the defendant9

and Mr. Williams were arm wr estling. Mr. Walker stated that he w as shooting pool and not paying attention to the arm wrestling. H e said that he heard a commotion, tur ned around, and saw Jack Speakman o n top of the defendant. He testified that he s aw several people surroundi ng the pair, and he said that Mr. Speakman had to be pulled off of the defendan t. Mr. Walker stated that the def endant walked outside the tavern and stated that he was goi ng to get a gun and come back to the tavern.

Mr. Walker testified that he followed the defendant to try to calm the defendant. He said that Mr. Speakman fo llowed him out of the tavern, keeping a little distance behind him. He testi fied that he spoke to the defendant outside th e tavern, and the defendant stated a cou ple of times t hat he was going to get his gun and come back and kill Mr. Speakman and Mr. Williams. Mr. Walker said that the defendant then got inside his truck but continued to talk to him thr ough the window. H e recalled that the defendant and Mr. Speakman exchang ed words before the defendant drov e away in his truck. Mr. Walker also t estified that the defendant did not appear t o have any trouble talking, wa lking, or drivi ng his truck away from the tavern. He said th at the defendant lived approximatel y three miles away

.

Mr. Walker testified that after the defendant drov e away, he went ins ide the tavern and told Mr. Williams of the th reat the defendant had made. Mr. W alker said that although he tried to convince him to leave, Mr. Williams sta yed at the tavern. Mr. Walker said that approximately twenty to thirty minutes later, he heard a gunsho t while he was sitting at a po

ol table. He stated that he then saw the defendant standing in the doorway with a s hotgun. He said that the defendant had blood dripping down one s ide of his face. Mr. Walker testified that the defendant then fired a second shot. He stated that he went out the back door and around the building to look fo r the defendant. He said that he saw the defendant near an outside corner of the taver n and that he tried to calm the defend ant. Mr. Walker testified tha t the defendant pointed the s hotgun at hi m,10

but when the defendant's attention w as disturbed by someone else , he grabbed the shotgun from the defendant. Mr. Walker stated that the gun was a single- shot shotgun and a single live sh ell was in the chamber.

On cross-examination, M r. Walker testified that after he took the shotg un away from the defendant, the defendant told him that there was no reaso n for him to be treated the way he had been t reated in the tavern. Mr. Walker said that he interpreted the defendant’s statement as meaning that the defendant should not have been embarrassed in that manner.

Herschell Jackson, a patr on of the Next Door Tavern, testified that he was an acquaintance of the defendan t but that he also knew Kevin Williams and Jack Speakman very well. He said that he observed the defendant and Mr. W illiams arm wrestling from the other end of the bar. He said that he then saw several people walking towards

the door yelling at each other. He said that the defendant then left the bar.

Mr. Jackson testified that after about an hour, he heard what sounded like someone kicking the door open and then a gunshot. He said tha t he looked towards the door and saw the defendant standi ng there with a shotg un. Mr. Jackson stated that he moved toward the door and tried to close it, but the defendant fired at least one more shot through the door. H e testified that after the shooting stopped, he saw Keith Walker come through the back door of the taver n with a shotgun.
Deputy Sheriff Roy Bris coe testified that he responded to a 911 call at 12:32 a.m. regarding an accident involving the defendant’s truck on the Old Clarksville Highway approx

imately seven-tenths o

f a mile from the Next Door Tav ern. He said that it appeared that the defendant’s truck had run off the road, hit a barn, and t urned end-11

over-end, landing in the yard of a residence. He stated that he did not observe any skid marks. Deputy Brisc

oe stated that the driver of the truck was not at the s cene and there were no eyewitnesses to the accident. Deputy Briscoe testified that while investigating the accident scene, he overhear d a radio call to Metro Police to respond to a shooting at the Next Door Tavern. He said that h e later received informati on that the defendant had been arrested in relati on to the shooting, and he stated that he then asked Metro Police to draw a blood sample from the defendant. Deputy Briscoe testified that he believed that the defendant was driving under the influence of an intoxicant because there w ere numerous alcoholic bev erage containers inside and outside the defendant’s truck.

Michael Hooper, an emergen cy medical technician, testified that at 12:47 a.m., he and his partner responded to a call regarding

a shooting at the Next Door Tavern. He said that as he was driving the ambulance down Clarksv ille Highway looking for the tavern, he saw the defendant stagger ing in the middle of the highway. He stated that when he asked the defendant what was wr ong, the defendant said that he had wrecked his truck. He stated that the defendant had cuts and blood on his face. Mr. Hooper testified that he then saw another person appr oaching them, and by the time they put the defendant in the back of the ambulance the other person had r eached the ambulance and told them about the shooti ng. Mr. Hooper said that they then went to the tavern.
On cross-examination, M r. Hooper explained that when he first saw the defendant, the defendant was having a lot of difficulty walki ng and was not walk ing in a straight line. He tes

tified that the defendant's injuries were consistent with those that would result from an automobil e accident. After review ing photographs of the defendant’s wrecked truck, Mr. Hooper said that he w ould have expected the defendant to have been killed or se verely injured and would not have expect ed him to be able to12

get up and walk around. He also testified that the defendant appear ed confused and had a loss of equilibrium, a lthough he did not know w hether the defendant was suffering from shock. He stated that he believed that the defendant “could certainly understand” what the medical personnel were sayi ng to the defendant. Mr. Hooper explained that the the defendant’s d ifficulty in walking and talking could have been caused by injuries sus

tained in the wreck or

by being struck dur

ing a fight. He said that he was unsure whether the defendant had experienced a loss of consciousness. Mr. Hooper believed that the defendant was intoxicated.

Officer William McCall of the Metro Poli ce Department testified that he respond ed to a cal l at 12:51 a.m and t hat he was the first office r to arrive a t the Next Door Tavern after the shooting . He said that he found the defendant in the back of the ambulance. He stated that the medic al personnel were try

ing to administer treatment to the defendant, but the defendant was refusing treatment. Officer McCall ex plained that the defendant tried to get up and leav e on two different occasions. He stated that the defendant told him that he had been in a fig ht. Officer McCall testifie d that the defendant did not slur his speech b ut rather the defendant appeared coherent and seemed to understand his questions. He said that the def endant smelled like alcohol, although he did not believ e the defendant was drunk. Officer M cCall also identified the single-action shotgun

that Herschell Jackson gave to him during hi s investigation at the tavern.

Officer Christine Woods of the Metro Police Department was the second officer to arrive at the Ne xt Door Tavern after the s hooting. She said that w hen she asked the defendant whether he had shot anyone on two occasions , the defendant responded each time by telli ng her that he had been invol ved in a wreck. She interpreted the defendant’s stateme nts as an indication that he did not want to talk about the shooting. She testifie d that in her opinion, the defendant w as intoxicated but13

not disorientated or confused. She said that the defendant seemed to understan d what was happening around him. Officer Woods conceded that she described the defendant as being very int

oxicated in her report.
Officer Thomas Simpkins of the Metro Pol ice Department identified evidence found at the tavern. He said that he found two spent shotgun shells and one live shell outside the

tavern, and he found two shotg un shell waddings in side the tavern.

Detective David Miller of the Me tro Police Departme nt assist ed Detect ive Al Gray in the inv

estigation. He testified that on the night of the murder, he i nterviewed the defendant at the hospital. Detect ive Miller said that the defendant appeared to have been drinking, but that during the intervi ew, the defendant did not slur hi s speech, appeared coherent, and seemed capable of under standing what was going on around him. He said that the defendant gav e specific answers to hi s questions. He testified that the defendant told him during the interview that he had be en in a fight after an arm wrestling match and th at he was trying to get away when he wrecked his truck

. Detective Miller

said that he requested that a blood sample be drawn from the defendant after receiving a request from Deputy Briscoe for purpo ses of Briscoe’s investigation of the defendant for dr iving under the influence

.
Detective Alfred Gray , III, of the Metro Police De partment testified that he interviewed the defendant at approximately 4:00 a.m., three to th ree and a half hours after the shooting. He said that the defendant appeared to understand w hen he read him his constitutional ri ghts. He also said that the defendant did not appear to be intoxicated. He said that he learned during his investigation that the defendant had obtained the shotgun from his home. Detective Gray testi fied that he investigated th e14

loss of the defendant’s blood sample but w as not able to determine what happened to the sample.

Dr. Edmund Rutherford, the trauma s urgeon that treated Gary Dean Harris, testified that a s hotgun wound can be life thre atening if made at close rang e, even if the shotgun pellets traveled through a door. He also testified that desp ite Mr. Harris' blood alcohol content being .286 the night of the shooting, he f ound that Harris was alert and coherent. He said that the degree of impai rment for a specific blood alcohol content would be greater for persons who did not chronically use alcohol.

Dr. Julia Goodin, the Dav idson County Medical E xaminer, testified that Dan Newland receiv

ed one shotgun wound injur y to the left arm and upper chest and that the wou nds resulte d in his deat h. She testified that the s hotgun was fired from a distance of between eight to twenty feet. Dr. Goodi n also testified that Dan New land had a blood alcohol content of .31.

The defendant's first witness w as Beverly Hunter,the defendant's cousin. She testified that she, the defendant, Gar y Dean Harris, and one other person were at the VFW drinking the afternoon before the shooting . She testified that she believ ed that the defendant was drunk becaus e he spilled his drink at the VFW. She said that after two or three hours of dr inking they went t

o another bar for about an hour. She said that they then went to the Next Door Taver n. Ms. Hunter testified that she was using the pay telephone on the outside wall near the Next Door Tavern door when she saw the defendant leave the tav ern followed by Jack S peakman and another person. On cross-examination, s he testified that she did not notic e any arguing or y

elling between the defendant and anyone els e. Ms. Hunter conceded that s he drank a lot that night. She described the defendant as bein g drunk, but not “falling down drunk.”1 The defe nda nt co nce des that th e evid enc e is su fficie nt to s upp ort his aggr avate d ass ault convicti on. 15 She said that the defendant was coherent, was able to carry on a conversation, and did not stumble or fall.

The defendant's second witness was W illiam King, owner of the house where the defendant wrecked his truck. He testified that he noticed a sm all truck in his yard on the night of the offense. He said that he looked for an injur ed driver, found none, and

went i nside to

call th e sheri ff.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is not sufficient to support his conviction for felony murder. 1 He asserts that the evi dence, at most, can only suppor t a conviction for voluntar

y manslaughter. The defendant arg ues that there was no evidence to establish del iberation or premeditation as required for the underly ing felony of attempted first degree murder. Rather, the de fendant argues that the evidence instead showed that the kil ling was committed in a state of passion produced by adequate provocation becaus e he was intoxicated, had been involved in a fig ht, and had been involved in an automobile accident. The state respo nds that the evidence is sufficient. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.16

1978). Under this standard, the state is entitled to the strongest legitimate v iew of the evidence and all reasonabl e inferences which may be drawn from it. Cabbage , 571 S.W.2d at 835. That is, the testimony favorin g the state is accredit ed and all conflicts are resolved in favor

of the state's theory. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett , 560 S.W.2d 627, 63 0 (Tenn. 1978).

In the light most favorabl e to the state, the evidence s hows that the defendant was arm wrestli ng with Kevin Williams w hen he became angry and accuse d Williams of cheating after the defendant lost the firs t match. The defendant then slammed Williams’ hand on the table, grabbed the money which was bet on the match, and started to walk aw

ay. Jack Speakman then gr abbed the defendant, and they fell to the floor. Once Speakman released the defendant, the defendant walked out of the tavern, threatening to g et a gun and return to kil l everyone in the bar. After walking out of the tavern, the defendant told Keith Walker a couple of times that he was going to get a gun and kill Speakman and Williams. Speakman yelled at the defendant, and the defendant cursed and yelled at Speak man that he would be back to ki ll him. The defendant then drove home and got his shotgun, but he wrecked his truck as he returned to the tavern. The defendant then got out of his truck, tak ing his shotgun and walking approxi mately seven-tenths of a mil e to the tavern.

When the defendant returned to the tavern about twe nty to thirty minutes after initially leav

ing, the defendant kicked open the t avern door and fired once int o the tavern, shooting and ki lling Dan Newland.The defendant then removed the empty shell, placed another liv e shell in the chamber, and fired a second time through the tavern door. From this evidence, the jury w

as entitled to conclude that the defendant recklessly kill ed Newland while ac ting with premeditati on and deliberation in attempting to kill Williams, carrying out his actions with a cool purpose. See T.C.A. § 39-13- 201(b)(1)-(2) (1991). We believe that this evidence establishe s beyond a reasonable17

doubt that the defendant recklessly killed Dan Newland during the attempted murder of Williams. See T.C.A. § 39-13-202(a)(2) (1991).

II. FAILURE TO PRESERVE EXCULPATORY EVIDENCE The defendant contends that the trial cour t erred by denying

his motion to dismiss the indictment because the state failed to preserv e a blood sample taken from him on the evening of the shooti ng. The defendant asserts that the st ate’s suppression of the evidence violated his due process rights under Brady v. Maryl and , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) . He argues that he wa s precluded from offering scientific evidence that w ould have most likely

established that he was i ntoxicated at the time of the offense. The defendant concedes that the pr oof does not show that the state deliberately destr oyed the blood sample. How ever, he argues that g ood or bad faith on the part of the state is irrelevant under Brady because the blood sample constitutes exculpatory evidence in that it would be relevant to negate the culpable mental state required for the underlying felony of firs t degree murder, a specific intent crime. See T.C.A. § 39-11-503(a). The defendant c omplains that had the defendant had access to the blood sample at t rial, the jury w ould have returned a ver dict of voluntary manslaught

er or, at most, second degr ee murder.
In response, the state contends that the trial court proper ly denied the defendant’s motion to dismiss. It argues that the de fendant has failed to establish either that the evidence w as exculpatory or that the state acted in bad faith, citing Arizona v. Young blood , 488 U.S. 55, 57-58, 109 S. Ct. 333, 337 (1988). The state concedes that evidence of the defendant’ s intoxication woul d have been relevant to negate the specific intent re quired for the charges of fir st degree premeditated and deliberate murder and aggr avated assault and for attempted fir st degree murder, the underlying felony for the felony murder charge. H owever, the state ass erts that the evidence is not excul patory because the blood sampl e would have, at best, s hown that18

the defendant’s blood alcohol level was above the legal limit, and such evidence would not have negated the requi site culpable mental state r equired for the specific int ent crimes for which the defendant w as charged because proof of intox ication alone is not a defense to a specific intent crime.The state argues that prov ing the blood alcohol lev el of the defendant at the time of the killing would not be sufficient to neg ate the requisite specific intent absent evi dence that the defendant’s intoxic ation deprived him of the mental capacity to form the specific intent required for th e offenses charged.

Before trial, the defendant filed a motion to dismiss the indictment for the failure to preserve materi al evidence. At a hearing on the defendant’s motion, Detective Miller

from the Metro Police Department testified that on February 1, 1993, Deputy Briscoe asked tha t Miller have a blood sample drawn from the defendant. Detective Miller

said that drawing bl ood was not normally don e in homicide cases but that Deputy Briscoe needed a blood sample for his investigation of the defendant for driving under the influence with respect to the truck accident. After he rec eived the blood sample from the hospital, Det ective Miller sai d that he gave the sample to Detective Gray w

ho was in charge of inv estigating the shooting . Detective Gray testified that he did not remember r eceiving the blood sampl e from Detective Miller but that he remembered finding the blood s ample in the homicide section r efrigerator and taking it down to the pr operty room in July 1993.
Officer Joy Moore of the Metr o Police Department Property Room testified as to the handling of blood samples . She testified that according to her records a blood alcohol kit containing the defendant's blood sample was del ivered to the property room on July 14, 1993, by Det ective Gray. She sa id that her records show that the blood sample was logged i n, and she stated that the normal pr ocedure would be to place the sample in the cooler until i t could be transported to the T.B. I. Crime Laboratory. O fficer19

Moore testified that her rec ords show that she trans ported the defendant's blood sample to the T.B.I. lab on July 27, 1993, and gave it to M ildred Krice at the cri me lab.

Mildred Kr ice, an evi dence te chnician at the T. B.I. Crim e Labora tory, testified that her records s how that the lab never r eceived the defendant's blood sample. She said that samples are delivered in a sealed box with an evidence submittal form inside the sealed box. She stated that when she receives a blood sample, she open s the seal ed box, veri fies tha t the bloo d sample is identif ied as sho wn on the evidence submittal form, e nters the data into the computer, and finally attaches a T.B.I. Crime Laboratory label to the sample. She said that if the form is missing or the sample identification does not match the form information her procedure i s to notify the delivering agency

so that they can correc t it.
Terry Fields of the T.B.I. F orensic Division testified that blood alcohol analysis is general ly conducted in approx imately one week from its arrival at the lab. He said that blood samples that have been through the proper chain of custody requirements may be tested and render accurate results quite a long time, possibly years, after the blood sample i s taken. He stated that informal studies have shown that accurate results are achi eved even when testi ng a blood sample that has been openedthree or four times approximately four to six months after testing. On crossexamination, Mr. Fiel ds conceded that a person’s int oxication level al one does not determine whether he or she is able to function or think c learly or is able t

o form the intent required to commit murder.

At the conclusion of the hearing on the defendant’s motion to dismiss the indictment, the trial cour t denied the motion. The trial c ourt ruled that the state did not act in bad faith but rather the st ate’s loss of the blood sample w as a result of carelessness.20 In Brady , the United States Supreme Cour t held that the prosecution has a compelling duty to furni sh the accused any evide nce that is favorable to the ac cused and material to his guilt or punishment. 373 U.S. at 87, 83 S. Ct. at 1196-97; see also State v. Marshall , 845 S.W.2d 228, 232 (Tenn. Crim. App. 1992). The Cour t ruled that good faith or bad faith on the part of the state is irrelevant when the state fails to disclose to the defendant materiall y exculpatory ev

idence. Brady , 373 U.S. at 87, 83 S. Ct. at 1196-97. Evidence i s material “only if ther e is a reasonable probabili ty that, had the evide nce been disclose d to the d efense , the resu lt of the proceed ing would ha ve been different.” United States v. Bagle y , 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). The Supreme Court further stated that the

touchstone of materiality is a “reasonable probabilit y” of a different result, and theadjective is important . The question is not whether th e defen dant woul d more lik ely than n ot have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly show n when the Government’s evidentiarysuppression “undermin es confidence in the outcome of the trial.” Kyles v. Whitley , 514 U.S. 419, 434, 115 S. Ct. 1555, 1566 (1995) (citation s omitted);
see also State v. Edgin , 902 S.W.2d 387, 390-91 (Tenn. 1995).

Initially, we note that the blood sample does not constitute mate rially exculpatory evidence under Brady . Rather, the evidence mer ely “could have been subjected to tests, the results of which might have exonerated the defe ndant.” See Youngblood , 488 U.S. 51, 57, 109 S. Ct. at 3 37. The defendant’s argument that he was prevented from present ing “scientific evi dence that would have, in all likelihood , established that he was . . . intoxicated at the ti me of the offense” essentially concede s th at th e exc ul pa

to ry na tu re of th e b lo od sa mp le

is un kn ow n. (E mp ha si s a dd ed ). We believe that the blood sample falls within the class of “potentially excul patory evidence” as set forth in Youngblood

. See id

.2 We note that the majorit y of the states that

have considered Youngblood in relation to the ir state con stitutions ha ve rejec ted the m ajority opinion. See , e.g ., State v. Morales , 657 A.2d 585, 594- 95 (Conn. 1995) (l isti ng states and not ing that only Arizona and Cali fornia had, at that time, agreed with Youngblood ). 21

In Youngblood , the Supreme Court held that the failure of the prosecution to preserve evidence which is potentially useful to the defendant may constitute a denial of due process of law, i f the defendant can show bad faith on the par t of the police. 488 U.S. at 58, 109 S. Ct. at 337. In a concurring opinion, Justice Stevens questi oned such a broad stateme nt rega rding b ad faith, indica

ting th at even

if a defendant cannot prove bad faith, there may be cases in which the loss or destruction of evidence is so criti cal as to make further prosecuti on fundamentally unfair. 488 U.S. at 61, 109 S. Ct. at 339. In a dis senting opinion authored by Justice Blackmun, three members of the Court stated that rel iance upon a good faith/bad faith standar d as dispositive was i nappropriate and opted to focus the in quiry on the material ity of the evidence, i

ts potential

to exculpa

te, and the ex

istence of oth er evidenc e on the same point of contention. 488 U.S. at 67- 70, 109 S. Ct. 343-43.
This court has followed the maj ority opinion in Youngblood

. State v. Eldridge , 951 S.W.2d 775, 778 (Tenn. Crim. App. 1997); State v. Jefferson , 938 S.W.2d 1, 16 (Tenn. Crim. App. 1996); Robert Lloyd Wiggins v. Stat e , No. 03C01-9605- CC-00191, McMinn County , slip op. at 31 (Tenn. Cri m. App. Mar. 20, 1997), app . denied (Tenn. Sept. 29, 1997); State v. Jerry Douglas Franklin , No. 01C01-9510-CR00348, Davidson County, slip op. at 8 (Tenn. Crim. Ap p. Feb. 28, 1997), app . denied (Tenn. Nov. 17, 1997); but see Stave v. Marvi n K. Ferguson , No. 03C01-9406-CR00235, Washington County (Tenn. Crim. App. July 17, 1997), applic

. filed (Tenn. Aug. 3, 1997) (in separate opinion s, majority of panel indic ate that Youngblood majority opinion does not meet all due process concerns under the state constitution). 2 Under Youngblood , the defendant is not entitled to r elief. He concedes that the rec ord does not reflect that the state deliber ately destroyed the bl ood sample, and we believ e that the record supports the tri al court’s conclusion that the state acted carelessl y, and not22

in bad faith. Thus, we conclude that the state’s failure to preserve the blood sample did not violate the defendant’s due pr ocess rights.

III. VINDICTIVE PROSEC UTION The defendant contends that his felony murd er conviction should be set aside because the convicti on was obtained in vio lation of his due process ri ghts by retrying him under a theory of first degree murder that was not asserted in his first trial that resulted in a mistri al. He argues that retr ial upon the same facts presented in the first trial but under a different legal theory was patently and fundamentally unfair

. Though he concedes that a retrial itself does not violate traditiona l notions of fairness,
see Arizona v. Washington , 434 U.S. 497, 505, 98 S. Ct. 824, 830 (1978), the defendant argues that it was fundamentally unfair for the state to benefit from the defendant having successfully defended himse lf in the first trial. The defendant also asserts that his felony mur der conviction must be set aside because the trial cour t in the first trial properly

determined that the state had not suffici ently proven an element essential to the defendant’s conv iction for felony murder on r etrial as evidenced by

the trial court’s refusal t

o instruct the jury on

transferred intent. The state r esponds that the trial court properly denied the defendant’s motion to dismiss be cause the defendant’s due process rights w

ere not violated. The state a rgues that not only w as it permitted to retry the defendant for first deg ree murder, but it was a lso allowed to rely upon a different theory upon retrial.

The defendant was first indicted on April 27, 1993. A three-count indictment charged the defendant w ith the first degree premeditated and deliberate murder of Danny Newland, the attempted first degree premeditated and deliberate murder of Gary Harris,and the aggravated ass ault of Gary Harris. A trial was conducted, resulting in a mistrial. A second indi ctment was obtained on December 7, 1993, purporting to charg e the defendant in separate counts w ith first degree23

premeditated and deliberate murder and felony murder during the perpetration or attempted perpetration of assault w ith intent to commit murder. The third count of the indictment charged the defendant w ith attempted first degree murder of Harris.

Before trial, the defendant filed a motion to dismiss the felony murder count of the indictment because it violated his due process rights. A hearing was held on the motion. At the hearing, Billy Harrell, the foreperson of the defendant’s first tr ial that resulted in a mistri al, testified that the jurors could not decide between sec ond degree murder and voluntar y manslaughter. He sai d that ten of the jurors voted for second degree murder, one v oted for voluntary manslaug hter, and one was undecided.
At the conclusion of the hearing , the defendant argued that a dismis sal was required because the trial court had ruled at the first trial that ther e was insufficient evidence to instruct on t ransferred intent and thus it w ould be unfair to require the defendant to defend against f elony murder in the perpetration of an attempted first degree murder on retrial . After hearing argument by counsel, the trial court stated that it recalled that there was not much disagreement at the first trial that the evidence d id not support transferred intent because Speakman was not present in the tavern when the shooting to ok place. The tr ial court held th at its earlier deci sion denying a transferred intent instruct ion had no bearing on the tri al court’s decision regarding felony murder, stating that transferred intent applied to intentional killings but not to felony murder. Ultimately, the trial court denied the defendant’s motion, ruling that the defendant’s due process rights were not violated and the state was not foreclosed from pursuing a felony murder theory on retrial. H owever, the trial court dismissed the felony murder count, holding that it was defective because assault with intent to commit murder is not listed as an underlying felony for felo ny murder.24 The defendant was indicted again on January 14, 1994. The indictment alleged in separate counts (1) first degree premeditated and delibe rate murder, (2) first degree felony murder duri ng the perpetration of an attempted fir st degree murder, (3) attempted first degree premeditat ed and deliberate murder, and (4) aggravated assault. The defendant was tried and conv icted of the offenses of felony murder and ag gravated assault.
In support of his argument, the defendant relies upon State v. Carter , 890 S.W.2d 449 (Tenn. Crim. App. 1994). In Carter , this court held that fundamental fairness bars the state from asser ting on retrial agg ravating factors not r elied upon by the state at the first trial

. Id . at 454. However, the Tennessee Supreme Court held to the contrary in State v. Harris , 919 S.W.2d 323, 330 (Tenn. 1996) (“the State is free, at resentencing to introduce proof of any aggravating circumstance which is otherwise legally valid. ”).

The defendant cites North Carolina v. Pearce , 395 U.S. 711, 89 S. Ct. at 2972 (1977), in support of his ar gument. In Pearce , the United States Supreme Court concluded that the defendant’s due proc ess rights were v

iolated when the gover nment retried the defendant for charges that had been successfully appeal ed and the trial court imposed greater sent ences without provi ding reasons for the enhancement. Id . at 726, 89 S. Ct. at 2081. The Court s tated that a trial court must set forth its reasons for imposing a more severe sentence to insure that vindictiveness does not deter a defendant from exercising his right to appeal. Id . at 725-26, 89 S. Ct. at 2080-81.The defendant also likens his case t o United States v. Lee , 435 F. Supp. 974 (E.D. Tenn. 1976). In Lee , a federal district court held that the defendan t’s due process rights were violated by being r

etried for greater felony charges when the defendant had successfully appealed misdemeanor convictions relating to the same criminal conduct and the government had not show n either that it was i mpossible to proceed on the25

more serious charges at the first trial or that the government did not learn of the new evidence through no fault of it s own. Id . at 978-79. Although the defendant c oncedes that felony murder is not a g reater charge, he argu es that the reasoning in Lee applies nonetheless. We disagree.

In this case, the defendant was not subjected to a greater s entence on retrial nor was he c

harged with a great

er offense. Our criminal code pr ohibits the offense of first degree murder, althoug h it lists several means by which the offense may be committed. See T.C.A. § 39-13-202 (1991). R egardless of which theor y is relied upon by the state, the offense committed by the defendant is the same, first degr ee murder. See State v. Hurley , 876 S.W.2d 57, 59-60 (Tenn. 1993). Thus, the fact that the state changed its theory of how the defendant committed the offense does not indicate any vindic

tiveness or retaliat ion for the defendant’s exercis e of constitutional or statutory rights, particularly w hen the state notified him by the i ndictment as to the change.
As for the defendant’s claim that impl icit in the trial cour t’s refusal to instruct on transferred int ent in the first trial is

that the trial court found that the state failed t o prove tha t the def endant i ntended to kill som eone oth er than Ne wland, we disagree. We note that the record on appeal do es not include a transcri pt of the proceedings that took place at the first trial. It i s the duty of the appealing par ty to prepare a fair, accurate and compl ete record on appeal to enable meani ngful appellate review. T.R .A.P. 24 (b). W hen nece ssary part s of the r ecord are not inclu ded, we presume that the trial court ’s ruling was c

orrect. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

In any event, the defendant is n ot entitled to relief. The recor d before us does not reflect that the defendant was acquitted of the charges of fir st degree murder.3 The re cord inc ludes on ly the transcr ibed portion of the voir dire of Kenn eth Gre gory, a prospe ctive juror. T he defe ndant did not requ est that the entire voir dire procee dings be transcrib ed. 26 To the contrary, the evi dence shows that the first t rial resulted in a mist rial. Also, we do not believe that the trial court intended that its rul ing on the state’s requ est for an instruction on transferred i ntent be considered an acquit tal or a determination that the state had failed to establish the elements of the offense of first degree premedit ated and deliberate murder. Therefore, w e hold that retrying the defendant upon a felony murder theory of first degr ee murder was not fundamentally unfair and did not violate the defendant’s due process rights.

IV. BATSONCLAIM Finally, the defendant contends that his constitutional r ights were viol ated when the state exerci sed a peremptory challeng e against the only black potential juror questioned during voi r dire. He argues that he established a prima facie cas e of racial discrimination and that the s tate failed to prove a raci ally-neutral reason for challenging the juror. The state counters that the defendant failed to establish a prima facie case of racial discrimination because striking the only black person questioned on voir dire is not sufficient to raise the inference of purposeful discrimination. The state also contends that it did provi de a race-neutral reason for the challenge.

The record 3 reflects that Kenneth Gregor y, a prospective ju ror, was questioned during voi r dire regarding h is occupation, marital sta tus, whether he knew anyone who had been a victim of crime or who had a problem with alcohol at work. Mr. Gregory stated that he had seen how alcohol affects a person’s men tal state and how it can cause a person to do something that he would not have ex pected. He said that he could be fair and follow the trial court’s instructions. After the voir dire of the jury, Mr. Gregory was ex

cused by the trial cour

t upon the state’s challenge . A hearing was then conducted in the trial cour t’s chambers, and the defendant objected to the removal of Mr. Gregory:27 [DEFENSE COUNSEL]: I would make a Batson Motion concerning t he juror the State ha s struck, K enneth G regory. I don't feel that

t here was any basis for striking this juror. He is an African American male. I don't feel that there is any basis to exc use him. He is single,and has worked ten year s fo r Kroger's and that sort of thing. I don't believe that he g ave any answers to requir e that the State strike him. He is the only black seated on the Jury at this time. COURT: [Prosecutor], do y ou care to respond to that? PROSECUTOR: Well, Judge, I understand that, first of all, that the defendant is whi te. I don't think that the State striking one black male makes this a basis for a Batson Motion. At the time Mr. Gre gory was excused, Mr. Dotson, a whi te male was also excuse d. On the b asis of t hat, I do n't belie ve that he can raise a Batson issue. I don't believ e that excusing one black juror shows a pattern. The reason I challeng ed Mr. Gregory was because I felt like h e was making faces at some of the questions we w

ere asking. Ther

e was j ust something about his bodylanguage that made me feel very uncomfortable. I just felt like he was n ot taking thi s serious ly. I just got a feeli ng about h im, and that's the reason I challenged him, not because he is black. COURT: [Defense Counsel], I will note that Mr. Gregory is not th e only black juror on this panel of prospective jurors that are here. I will a

ccept [the prosecutor's] r espo nse as to why hechallenged this juror. You chal lenged a white juror. I do n't believe there was any racial basis for his excusing this juror, so I will

overrule you objection.
In Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712 (1 986), the United States Supreme Court held that a state’s use of pe remptory challenges to intentionally exclude jurors of the defendant’s race violates the defendant’s Fourteenth Amendment right to equal protection. The Court upheld this pr inciple in Powers v. Ohio , 499 U.S. 400, 111 S. Ct. 1364 (1991), but el iminated the requirement that the defendant and the potential juror share the s ame race. The Court held that ra ce was “irrelev

ant to a defendant’s standing to object to the discriminatory use of peremptory challenges.” Id

. at 416, 111 S. Ct. at 1373.

A defendant seeking to raise a Batson claim has the initial bur den of making a prima facie showing of purposeful discrimination against a prospective juror. Batson 476 U.S. at 93-94, 106 S. Ct. at 1721; State v. Ellison , 841 S.W.2d 824, 82628

(Tenn. 1992). Our supreme court recently reiterated the guidelines set forth in Batson for making out a prima facie case of purposeful discriminati on:

Defendant “may make out a prima facie case by showing that t he totality of the releva nt facts gives rise t o an inferenc e o f discriminatory purpose.” This showing may include proof of systematic exclusion, substantial underrepresentation on t h e venire, or the selection methods and results sole ly in the presentcase. As tothe purposeful requirement, defendan t is entitled to rely on the nature of the per emptory challenge --

that it permits “‘those to discr iminate who are of a mind to discriminate.’” In the end, defendant must es tablish that a co nsideration of all the relevant circumstances raises a n inference of purposeful discriminati on. Woodson v. Porter Brown Limestone Co., Inc. , 916 S.W.2d 896, 902-03 (Tenn. 1996) (citations omitted). Standi ng alone, the fact that the state c hallenged the only potenti al black juror on the panel does not establish a prima facie showing of purposeful discrimination. State v. B rown , 915 S.W.2d 3, 8 (Ten n. Crim. App. 1995).

Once the defendant establishes a prima facie showing of purposeful discrimination, the burden s hifts to the state to articulat e a racially-neutral

reason for the challenge. Batson , 476 U.S. at 97, 106 S. Ct. at 1723. The state’s explanation “mu st be based on more than stereotypi cal assumptions, but it need not rise to the level required to justify the exercise of a challenge for cause.“ State v. Ellison841 S.W.2d 824, 826 (Tenn. 1992); Batson , 476 U.S. at 97, 106 S. Ct. at 17 23.
In ruling on an objection to the discriminatory use of a peremptory challenge, the trial co urt is obligated to articulate specific reasons for each of its factual findings. Woodson , 916 S.W.2d at 906. First, the court should explain why the objecting party has or

has not established a prima facie showing of purposeful discrimination. Then, if the defendant h as made a prima facie showing, the court must determine whether the state gave a race-neutral ex planation for the challenge and whether it finds, based on the totality of the circumstanc es, that the challenge w as the result of purposeful discrimi nation. Id . “The tri al court’ s factua l findin gs are impe rative29

in this context. On appeal, the trial court’s findings are to be accorded great defe rence and not set aside unless clearly erroneous.” Id

.

In this case, the trial c

ourt did not explicitl

y state whether the defendant made a prima facie showing of discrimin ation. Ba sed on th e scant re cord bef ore us, we cannot tell whether the defendant met this initial burden . When faced with a similarly cryptic record in Woodson , our supreme court concluded that the trial court had found that the objecting party made a prima facie showing of purposeful disc rimination. The court reasoned that if the objecti ng party had not made a prima facie showing, then the trial court would not

have required an ex

planation for the challenge.
In any event, the trial

court in this case concl uded that the state did not challenge the prospectiv e juror based on his race. The court accredited the pros ecuting attorney’s respo nse that he cha llenged the juror based on the ju ror’s body language and based on the prosecuting attorney’s perception that the juror was not taking voir dire seriously. Based on the record before us, we cannot say that this finding is clearly
erroneous.
In consideration of the foregoing and the record as a whole , we affirm the trial court's judgment

of conviction for first deg ree murder and for aggrav ated assault.

______________________________ Joseph M. Tipto n, Judge30

CONCUR:

__________________________ David G. Hayes, Judge

__________________________ Jerry Scott, Speci al Judge