### FILED June 4, 1999 Cecil Crowson, Jr. Appe llate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE FEBRUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CC-00105 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. WILLIA M DOTSON, ) JUDGE ) Appe llant. ) (Direct Appeal - Att

empted Second ) Degree Murder and Aggravated ) Robbery)

FOR THE APPELL

ANT : FOR THE APPELLEE : JOE COSTNER JOHN KNOX WALKUP 315 High Street Attorney Generaland Reporter Maryvill e, TN 37804 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493 MIKE FLYN N Distri ct Attorney General EDWARD P. BAI LEY, J R. KI RK AN DREWS Assistant Distri ct Attorneys 363 Court Street Maryvill e, TN 37804
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

# OPINION

On Febr uary 2 0, 1990, Appell ant Willi am Dotson was indicte d by the BlountCoun ty Grand Jury for attempted fi rst degree murder , aggravatedassau lt, and aggrava t ed robbery . After a jury trial on Nove mber 19 –22, 1996 , the jury acquittedAppellant of attempted first degree murder, but failed to reach a verdict
on the charge of

aggravated robber

y, the charge of aggravate d assault, and on all lesser incl ud ed offenses of attempted fi rst degree murder and aggravated robbery. Appellant was s ubsequently t ried for attempted second degree murder and aggra vated robbe ry on J uly 15 –17, 1 997. O n July 17, 1997, Appell ant was convicted of attemp te d second d egre e murd er an d agg rav ate d rob bery . On February 23, 1998, the trial cou rt sentenced A ppellant as a R ange I stand ard offender to consecutive terms of twelve year s for each convi ctio n. Appellant challengeshis convict ions, rai sing thefol lowing issue: w hether the trial court erred when it refused to grant a mist rial after a witness for the Sta te testified that Appellant

had been arreste d for a federal paro le violation. After a review of t he record , we re verse the jud gme nt of the trial cou rt and re man d for a n ew tria l.

FACTS

Steven Bartlet

t testified that

he was working as a g as attendant at the Smoky View Mark et in Blo unt C ounty on De cem ber 31 , 1989 . At app roxim ately 11:00 p.m., Bart lett was chec king the gas pumps when a dark-colored 1979 Cama ro pulled i nto the pa rking lot . When two men wearing ski masks and-3-

carrying guns got out of the Camaro and went into t he store, Bartlet t hid behi nd
a gas p ump . While he wa s beh ind the pum p, Bar tlett cou ld see that t he driver of the Cam aro ha d rem ain ed in the vehicle. Bartlett identified the driver as Larry Goodwin. The two men stayed in t he store for approximately five to ten minutes before gett ing back in t he Camaro.

Kari Irwin testi fied that she was working at t he Smoky View Market on December 31, 1989, when she heard a customer scream. I rwin then l ooked up and saw one man pointing a gun at her and saw another man with a gun standi ng next to a pay phon e by th e doo r. The m an wh o was pointin g a gu n at Irw in ordered herto open the ca sh register. Irwin ope ned the registe r, and the armed
man tookthe money from the r egister and took a bag that had m oney in it. Irwin testi fied that even t hough both of t he armed men were wearing ski masks, she could tell that the man poi nting thegun at her was Caucasian and had blue eyes. When the two men left , Irwin called t he owner of the store and the police. Irwin could no t identify the m an wh o pointed a gun a t her.
Depu ty Jer ry Or r of theBlount County Sher iff’ s Department test ified t hat
on the evening of

December 31, 1989, he received a report that ther

e had been
an armed robbery at

the Smo ky View M arket. Orr also recei ved informati on that
a 1970 ’s mo del da rk-colo red C ama ro wa s in v olved in the ro bbery . Shor tly thereafter, Orr saw a vehicl e that matched t he descript ion he had been give n. Orr then noti fied some other police of

ficers t hat he had seen the vehicle and he began pursuit. When Orr turned on the bl ue lights of his pol ice vehicl e, the fr ont-4-

passengerof the Ca maro c limbed th ro ugh the w indow, sat on top of the door, and fired t hree shots at Orr. Orr testifi ed that theman who shot at him had the
same amou nt of baldn ess as A ppellant.

Orr testified that as he continue d the p ursuit of the Camaro, he and the frontpassenger of the Camaro exchanged gunfire. Shortly thereaf ter, seve ra l otherpolice officer

s joined t he chase. Orr testifi ed that at one point i n the chase, his car coll ided with t he Camaro, and he w as able to s ee that the driver of the Cama ro was Richard Burchfi eld. Orr s ubsequently l ost sight of the Camaro, but he even tually saw that the Camaro had been driven into a lake and some other police officers ha d taken Good win into cu stody. O rr testif ied that h e had seen that Go odwin w as the pa sseng er in the ba ck seat o f the Cam aro.

Officer Ron Boruff of t he Alcoa, Tennessee Police Department te stifi ed that he partici pated in t he pursuit of the Camaro on December 31, 1989. When O rr left the chase, Boruff

continued t he pursuit. The front pass enger ofthe Cam aro fired three sh ots at Bo ruff. Boruf f contin ued p ursuit u ntil the Cam aro drov e into
a shallow lak

e. The driver

and the front

passenger got out

of the Camaro and ran away, but Goodwin fel l as he attempted to run and he was apprehended by Boruff an d anoth er officer.

Sandra Norto n testifie d that G oodw in, Bur chfield , and A ppella nt we re all at her house on December 31, 1989. The th ree men arrived at Norton’s house at approximatel y 6:00 or 6:3 0 p.m. and they l eft approxi mat ely on e hour later.-5-

Norton was not sure whetherthe thre e me n all left in the same vehicl e, but she knew that at leas t one of the m drov e awa y in a dark Cam aro.

Richard Burchf ield testif ied that h e had been drinki ng heavily al l day on December 31, 1989. Burchf ield testifi ed that al though he had pled gui lty to the robbery of the Smoky View Market andto aggravated assault, he could not remember going into the market and he coul d not rememberwho had entered the market wit h hi m. Burchfiel d testified that h e had been drivi ng the Camaro when it went into the lake, b ut he c ould n ot rem emb er wh o else was in the ca r with h im when it went into th e lake. H e assu med th at Goo dwin an d Appe llant were with him becau se that is w hat he h ad bee n told. Bur chfi eld could no t remember whetherhe had fired any s hots during the policechase, but he di d not thin k that he had. Burchfield also testified t hat he turned himself in to the police the next day.
Larry Goodwin testi fied that he met Appellant

and Burchfield at t he place where Burchfiel d was livi ng on December 31, 1989. Later that evening, t he three
men went to the Smoky View Market . Goodwin test ified t ha t he d rove the Cama ro to the market , Burchfi eld sat i n the front passenger seat, and Appellant sat in the bac k seat. W h en the y reached the store, Goodwin stayed in the car while Appellant and Burchfiel d went in. When the t wo men came out of the marke t, Burch field go t in the front passenger seat and Appellant got in t he back. Good win then drove a way.-6- Goo dwin testified that s hortly af ter he dr ove away from the Smoky View Marke t, Burch field told him to stop th e veh icle. Bu rchfield got in the driv er’s seat, Goodw in got in the b ack sea t, and Ap pellant go t in the front p assen ger sea t. When a police vehi cle began pursui t, Appell ant leaned out of the fr ont passenger windo w and began shooting at the poli ce vehicle wi th a rif le and then wit h a pistol.

Goo dwin testified that after he was caught , he had ini tially lied to the police about the events sur rounding the rob bery a nd su bseq uent c hase . Goo dwin also testif ied that he had given several different acc ounts of the ev ents. How ever, Good win testified that he w as telling the truth at trial.
Depu ty Marsha ll Ronal d Donel son of the Un ite d States De par tment of Justice testified that

he arrested Appel lant in Greenvill e, South Caroli na, on Ap ril 24, 1995. W hen the prosec utor aske d Don elson w hy he h ad arres ted App ellant, Donelson responded, “Mr. Dotson was arr ested on thebasis o f a fede ral paro le violat ion warrant.”

Defense counsel t hen requested a bench conference during which he objected to Donelson’s statement, requested a curati ve instru ction, a nd moved for a m istrial. Th e tria l court to ld defense counselit would cons ider the motion for a mist rial and the court gave the prosecutor specifi c instruc tions about how to questi on Donelson. After a series of questi ons, the prosec utor asked Donelson whether Appell ant was arrested on a fugit ive warrant from Tennessee forflight to avoid pr

osecution for the charges at i ssue in thi s case. Donelson t hen stated, “That’s another reason, yes, si r.” Def ense counsel then requested-7-

anotherbench conference during which he again m oved for a mistrial because Donelson had “just reinforced what he sa id earlier.” The trial court stated th at it
wou ld cons ider the matte r later, an d the p rosec utor co ntinue d with D onels on’s directexamination. At the beginn ing of tri al the next day, thetrialcourt instructed the jury as foll ows: Yesterday, you heard test imony, one of t he last witnesses, a Deputy U.S. Mars hall, Ron Donelson. You’r e instruc

ted to dis regard the statement by Mr. Donelson that theDefen dant, M r. Dotson , was arre sted in S outh Carolinaon fede ral proce ss, and y ou sha ll not consid er that p art ofhis testimon y for any p urpose at all. Although the reco rd is not en tirely clear, t his ins tructi on was apparently g iven approx imately e ighteen hours a fter Done lson’s testim ony.

ANA LYSIS
Appellant

contends that the t rial cour t should have gr

anted his request for
a mistrialafter Donel son testi fied that Appell ant had been arrested for a federal parole violat ion. Speci fically, Appellant contends that

he wa s prejudi ced by Don elson ’s testimony becaus e it i nformed the jur y thatAppe lla nt had been convicted of some unknown federalcrime in t he past and created the impressi on thatAppe ll ant had violated his feder al parole by committing t he offenses for which he was charged in t his case. Appellant a lso contendsthat when Donelson testif ied that the Tennessee fugiti ve warrant was “another r eason” that Appel lant had been arrested, this rei nforced the testimony about t he federal par ole viol ation and also created the impressi on that Appell ant was facingother charges besides those in this case
. Appellant place s great em phasis on the fact that the trial court1 We note that Appel lant does not contend that

the prosecutor

intent ionally elicited the objec tiona ble te stim ony from Don elso n or a cted impr ope rly in a ny ot her m ann er in c onn ectio n with this testimony. In fact , defense counsel expressly sta

ted duringthe heari ng on Appellant ’s motion f

or a new trial that the pro secuto r had ne ver acte d impro perly in reg ard to Do nelson’s testimon y. -8- failedto give a curativeins tructi on until approximatel y eighteen hour s after Donelson’s improper testimony. 1

The decision of wheth er to grant a mist rial i s within t he sound discret ion of the trial court. State v. McKinney , 929 S.W .2d 404, 405 (Tenn. Crim . App. 1996 ). This Court willnot dist urb that deci sion absent a f inding of an abuse of disc retion. State v. Adkins , 786 S.W .2d 642 , 644 (Te nn. 199 0). “Gen erally, a mistrialwill be declared in a cri minal case only when ther e is a ‘manifest necessity’requiri ng such action by the trial judge .” State v. Millbr ooks , 819 S.W.2d 441, 443 ( Tenn. Cri m. App. 1991). “The purpose for declari ng a mistrial i s to c orrect damage done to the j udicialprocess when some event has occur red which precludes an impartialverdict.” State v . Wi ll iams , 929 S .W.2d 385, 388 (Tenn. Crim. App. 1996). In determini ng whet her the re is a “manifest necessity”

for a mist rial, “‘no abstractformula shoul d be mechanically applied and al l circ umstances should be taken into account.’” State v. Mou nce , 859 S.W.2d 319, 322 ( Tenn. 1993) (citation omitted).

There is no ques tion tha t Don elson ’s testim ony a bout A ppella nt’s federal parole violat ion was im prope r. This te stimo ny ob vious ly had no relevance to any issue in the case and w as clea rly preju dicial. D onels on’s testimony i nformed the jury that Appell ant had previ ously been convi cted of a federal cri me and created the impression th at Appellant ha d violated his fede ra l parole by committ ing the2 We note that t hese three fact ors are by no means the onl y factors whi ch are relevant to a determination of whether the trial court properly refused to grant a mi strial nor is it necessary to e xamine these facto rs in every unique case. Rather,these are th ree factor s which are oft

en examined in cases such as this one,and we conclude that they are especi ally i mportant i n this case. -9- offensesfor wh ich he was c harge d in this case . In add ition, Do nelso n’s subsequent testimony t hat the Tennessee fugit ive warrant was “another reason” thatAppellant

was arr ested se rved to emp hasiz e the te stimo ny ab out Ap pellan t’s federal parole vi olation. Of course, even though Donelson’s testimony about Appe llant’s federa l parole violatio n was clearly inadm issible a nd wa s clear ly prejud icial, a mistrial was only requi red if the err or created a “manifest necessit y” for a mistria l.

We have exam ined n ume rous c ases in which th e failure to g rant a mistrial has been upheld on appeal. While Tennessee Courts do not apply any rigid test when examining the f ailure to grant a mist rial after a witness has given improper t estimony, there are cer tain fac tors that are often co nsidered: ( 1) whether the impro per te stimony was eli cited by t he State or whethe r it was a spont aneous declarati on by the witnes s, (2) wheth er the case aga inst thedefendant was strong or weak, and (3) whetherthe trialcourt gave a pr ompt curative instruc

tion. 2 See, e.g. , State v. Hall , 976 S.W.2d 121, 147–48 (Tenn. 1998) (holdi ng that impropertestimony about de fe ndant’s prior cri me did not create a manifest
neces sity for a mistrialbecause trial court gave an immediate curative instruction); State v. Ma this , 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997) (holding that improper testimony

did not cre ate a m anifest ne cessity for a mist rial because trial court ga ve a pro mpt cu rative instru ction); State v. Hall , 947 S.W.2d 181, 184 (Tenn. Cri m. App. 1997) (hol ding that improper test imony about-10-

defen dant’s prior i ncarcerati on did not cr eate a manifest

necessity f

or a mistrial because trialcourt gave a promp t curative ins truction); State v. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996) (holding t hat improper testimony about defen dant’s prior crime did not cr eate a manifest necessity for a mistrial because the e vi dence of defend ant’s guilt w as ove rwhelm ing); William s , 929 S.W.2d at 388 (holding t hat improper testimony about defendant’s pri or bad acts di d no t create a manifest necessity for a mistrial because trial court ga ve an im media te curative instruction ); State v. Dick , 872 S.W.2d 938, 944 ( Tenn. Crim. App. 1993) (holding that improper testimony di d not create a ma nifest necessity for a mistrial because the evidence against the defendant was str ong and the trial court gave an imme diate cura tive instructio n); Millbrooks , 81 9 S.W.2d at 443 (hol ding that impropertestimony di d not create a manifest necess ity for a mistri al because trial court gave a promp t curative ins truction); State v. Davi d T. Jones , No. 01C01- 9710-CC-00445, 199 8 WL917810, at*2 (Tenn. Cri m. App., Nashvil le, Dec. 21, 1998) (holding that improper testimony di d not create a manifest necess ity for
a mistrialbecause the test imony was wholly unsol icited , there was overwhelming evidence of guilt, and th e trial court g ave an imme diate cura tive instructio n); State
v. Bill Sandel , No. 03C01- 9606- CC-002 37, 1 998 WL 28 260, at * 3 (Ten n. Cr i m. App., Knoxvill e, Jan. 26, 1998) (holdi ng t hat improper testimony about defend ant’s prior c riminal ac ts did not cre ate a m anifest ne cessity for a mist rial because the testi mony was spontaneous and nonresponsive and t he trialcourt gave a proper curat ive inst ruction) ; State v. Grover Livesay , No . 03C0 1-951 0-CC00298, 1996 WL 578499, at *3–4 (Tenn. Crim. App., Knoxv ille, Oct 9, 1996) (holding that improper testimony di d not create a ma nifest necessity for a mistrial-11-

because the testi mony was unresponsive and th e trial court gave an imm ediate curative instruction).
Initially, we note that contrary to the State’s assert ions, th e prosecutor in this case is not ent irely bl ameless for Donels on ’s improp er statem ents. W e agree with the State tha t there is nothing in the re cord w hich indi cates that the prosecutor

intentiona lly elicited Do nelson ’s statem ent that A ppel lant had been arrested for a feder al parole v iolation. In fact, it appears from the record that the prose cut or did not expect Donelson to refer to the federal parol e violat ion. Howe ver, Donelson’s res ponse was hardly unforesee abl e. Inde ed, it is
reaso nable to assume that when a Uni ted States deput y marshall who has arrested a person because of a federal parole vi olation is asked why he arr ested thatperson, the deputy marshallwould likely respond that he arrested t he person fora federa l parole vio lation. The prosec uto r shou ld hav e fores een th at his question about why Appellant was arrested invited exactly the kind of r esponse that Donelson gave.
Second, we note that t he evidence of Appel lant’s guilt was far from overwhelming. Although severa l witnesses testified that o ne of the masked men who comm itted the arm ed r obbery and subsequently fled t he police i n the Cama ro had physical characteri stics t hat were general ly consistent with those of Appe llant, Goodwin was the only wit ness who ever posit ively i dentifi ed Appellant
as one o f the pe rpetra tors of th e crim es at iss ue in th is case . Furthe r, Goo dwin expre ssly adm itted tha t he ha d bee n untru thful in s evera l o f the statements he-12-

had given the police i n regard to the armed robbery and subsequent police chase. Goodwin testified that in his i niti al inter

view with t he police, he had lied about sever al asp ects o f the rob bery a nd ca r chas e and had a lso with held informati on about his t wo accomplices. Goodwin al so testi fied that he subs eque ntly gave the po lice as m any d ifferent s tories a bout th e eve nts in question as h e po ssibly coul d. Goodwin test ified t hat in addi tion to lying to t he police, he ha d also lied to o ther pe ople abou t the ev ents a t issue in this case. In addition, Good win testi fi ed t hat his cri mi nal re cord c onsis ted of a pprox imate ly twenty-s even fe lony con victions.
Third, we no te that th e trial co urt did not give a curativeinstruct ion unti l the day after Donel son had testi fied, and although t he record is not entir

ely clear , the instruct ion was apparently not given unt il approx imately ei ghteen hours after the improp er testimo ny. We agree with the State that there is no per s e rule that a curative instruc tion m ust be given imm ediate ly in order to b e effective
. Howev er, as indicated by the author ities cited a bov e, the vast majorit y of cases in which Tennessee Cour ts hav e uph eld a tria l court’s failure to grant a mistria l in situati ons similar

to the one i n this case have based thatdetermination at least partly on the fact tha t a cura tive in structi on w as given immediately or at least sho rtly after t he improper test imony. We conclude that in thi s case, the tria l court’s f ailu re to give a promp t curative ins truction afte r Done lson referr ed to Appe llant’s federa l parole violatio n and subs eque ntly r einforced t hat testi mony was especiall y prejudi cial. The general rul e is that the jury is presumed to follow the trial cou rt’s instruction not to con sider the im proper te stimon y. See Math is ,3 The reco rd ind icate s tha t after objec ting to Don elso n’s re feren ce to App ellant ’s fed eral p arole violat ion, def

ense counsel stat

ed that he bel ieved the t rial co urt should “instruct the Jury t o disregard what [Donelson] just said.” The prosecutor then stated, “Yeah, I think you better.”

4 The record indi cates that for the char ge of attempted second degree murder,seven jurors vo ted for guil ty and five jurors vot

ed for not g uilt

y. For the char

ge of aggravated robbery, ni ne jurors vot ed for guilty and th ree jurors voted for n ot guilty. -13- 969 S.W.2d at 422. Howev er, be cause the trial court did not give the curat ive instruct ion until the day after Donelson made the imprope r statements, the jury had a minim um of a pproxim ately eigh teen ho urs durin g which they we re free to consider

the fact that

Appellant had been arrested for a feder al parole v iolati on. It is clear

that Donelson’ s improper testimony created the need for a prompt curative instruction in order to p revent u nfair prejud ice to Ap pellant, an d in fact, the prosec utor exp ressly ag reed w ith defense counsel t hat Donelson’s i mproper testimony required a prompt c urative i nstructi on. 3

We conclude that

in thi s case, Donelson’ s imprope r test imony about Appe llant’s federal par ole viol ation cr eated a “manifest necessit y” for a mistrial because the tri al court’ s fail ure to givea curative instruc tion until appro xima tely eighteen hours after

the improper testimony precl uded an imparti al verdic t. It has not escaped our notice that the j ury in Appellant’ s first trialwas unable to reach
a verdict on the charges for attempted s econd degree murder, aggr avated robbery, and all l esser incl uded offenses. 4 While we do not have the transc ript of th e first t rial bef

ore us, we presume that Donelson did not

testif y about Appe llant’s fede ral parol e violation in th e first trial. If Done lson did n ot testify about Appe llant’s fe deral p arole v iolation in the f irst trial, the n App ellant’s argument that he was unfairly prejudi ced by the improper testimony

in the second trialis strengthenedeven more . If Done lson d id give the im prope r testim ony in-14-

the first tria l, the pro secu tor’s failu re to pre vent th is error from h appe ning a gain in the second t rial i s inexcusable.
Accordingly, the jud gme nt of the trial cou rt is RE VER SED and th is case is REM AND ED fo r a new trial.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PR ESIDI NG JUDGE

___________________________________ L. T. LAFFER TY, S ENIOR J UDGE