FILED

June 4, 1999

Cecil Crowson, Jr.

Appe llate Court

Clerk

IN THE COURT OF CRIMINAL 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.

WILLIAM DOTSON, ) JUDGE

)

Appellant. ) (Direct Appeal - Attempted Second 

) Degree Murder and Aggravated 

) Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

JOE COSTNER JOHN KNOX WALKUP

315 High Street Attorney General and Reporter

Maryville, TN 37804

TODD R. KELLEY

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE FLYNN

District Attorney General

EDWARD P. BAILEY, JR.

KIRK ANDREWS

Assistant District Attorneys

363 Court Street

Maryville, TN 37804

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
-2-

OPINION

On February 20, 1990, Appellant William Dotson was indicted by the

Blount County Grand Jury for attempted first degree murder, aggravated assault,

and aggravated robbery. After a jury trial on November 19–22, 1996, the jury

acquitted Appellant of attempted first degree murder, but failed to reach a verdict

on the charge of aggravated robbery, the charge of aggravated assault, and on

all lesser included offenses of attempted first degree murder and aggravated

robbery. Appellant was subsequently tried for attempted second degree murder

and aggravated robbery on July 15–17, 1997. On July 17, 1997, Appellant was

convicted of attempted second degree murder and aggravated robbery. On

February 23, 1998, the trial court sentenced Appellant as a Range I standard

offender to consecutive terms of twelve years for each conviction. Appellant

challenges his convictions, raising the following issue: whether the trial court

erred when it refused to grant a mistrial after a witness for the State testified that

Appellant had been arrested for a federal parole violation. After a review of the

record, we reverse the judgment of the trial court and remand for a new trial.

FACTS

Steven Bartlett testified that he was working as a gas attendant at the

Smoky View Market in Blount County on December 31, 1989. At approximately

11:00 p.m., Bartlett was checking the gas pumps when a dark-colored 1979

Camaro pulled into the parking lot. When two men wearing ski masks and
-3-

carrying guns got out of the Camaro and went into the store, Bartlett hid behind

a gas pump. While he was behind the pump, Bartlett could see that the driver of

the Camaro had remained in the vehicle. Bartlett identified the driver as Larry

Goodwin. The two men stayed in the store for approximately five to ten minutes

before getting back in the Camaro.

Kari Irwin testified that she was working at the Smoky View Market on

December 31, 1989, when she heard a customer scream. Irwin then looked up

and saw one man pointing a gun at her and saw another man with a gun standing

next to a pay phone by the door. The m an who was pointing a gun at Irwin

ordered her to open the cash register. Irwin opened the register, and the armed

man took the money from the register and took a bag that had money in it. Irwin

testified that even though both of the armed men were wearing ski masks, she

could tell that the man pointing the gun at her was Caucasian and had blue eyes.

When the two men left, Irwin called the owner of the store and the police. Irwin

could not identify the m an who pointed a gun at her. 

Deputy Jerry Orr of the Blount County Sheriff’s Department testified that

on the evening of December 31, 1989, he received a report that there had been

an armed robbery at the Smoky View Market. Orr also received information that

a 1970’s model dark-colored Camaro was involved in the robbery. Shortly

thereafter, Orr saw a vehicle that matched the description he had been given.

Orr then notified some other police officers that he had seen the vehicle and he

began pursuit. When Orr turned on the blue lights of his police vehicle, the front
-4-

passenger of the Camaro climbed through the window, sat on top of the door,

and fired three shots at Orr. Orr testified that the man who shot at him had the

same amount of baldness as Appellant. 

Orr testified that as he continued the pursuit of the Camaro, he and the

front passenger of the Camaro exchanged gunfire. Shortly thereafter, several

other police officers joined the chase. Orr testified that at one point in the chase,

his car collided with the Camaro, and he was able to see that the driver of the

Camaro was Richard Burchfield. Orr subsequently lost sight of the Camaro, but

he eventually saw that the Camaro had been driven into a lake and some other

police officers had taken Goodwin into custody. Orr testified that he had seen

that Goodwin was the passenger in the back seat of the Cam aro. 

Officer Ron Boruff of the Alcoa, Tennessee Police Department testified that

he participated in the pursuit of the Camaro on December 31, 1989. When Orr

left the chase, Boruff continued the pursuit. The front passenger of the Camaro

fired three shots at Boruff. Boruff continued pursuit until the Cam aro drove into

a shallow lake. The driver and the front passenger got out of the Camaro and ran

away, but Goodwin fell as he attempted to run and he was apprehended by

Boruff and another officer. 

Sandra Norton testified that Goodwin, Burchfield, and Appellant were all

at her house on December 31, 1989. The three men arrived at Norton’s house

at approximately 6:00 or 6:30 p.m. and they left approximately one hour later.
-5-

Norton was not sure whether the three men all left in the same vehicle, but she

knew that at least one of them drove away in a dark Camaro. 

Richard Burchfield testified that he had been drinking heavily all day on

December 31, 1989. Burchfield testified that although he had pled guilty to the

robbery of the Smoky View Market and to aggravated assault, he could not

remember going into the market and he could not remember who had entered the

market with him. Burchfield testified that he had been driving the Camaro when

it went into the lake, but he could not remember who else was in the car with him

when it went into the lake. He assumed that Goodwin and Appellant were with

him because that is what he had been told. Burchfield could not remember

whether he had fired any shots during the police chase, but he did not think that

he had. Burchfield also testified that he turned himself in to the police the next

day. 

Larry Goodwin testified that he met Appellant and Burchfield at the place

where Burchfield was living on December 31, 1989. Later that evening, the three

men went to the Smoky View Market. Goodwin testified that he drove the

Camaro to the market, Burchfield sat in the front passenger seat, and Appellant

sat in the back seat. When they reached the store, Goodwin stayed in the car

while Appellant and Burchfield went in. When the two men came out of the

market, Burchfield got in the front passenger seat and Appellant got in the back.

Goodwin then drove away. 
-6-

Goodwin testified that shortly after he drove away from the Smoky View

Market, Burchfield told him to stop the vehicle. Burchfield got in the driver’s seat,

Goodwin got in the back seat, and Appellant got in the front passenger seat.

When a police vehicle began pursuit, Appellant leaned out of the front passenger

window and began shooting at the police vehicle with a rifle and then with a

pistol. 

Goodwin testified that after he was caught, he had initially lied to the police

about the events surrounding the robbery and subsequent chase. Goodwin also

testified that he had given several different accounts of the events. However,

Goodwin testified that he was telling the truth at trial. 

Deputy Marshall Ronald Donelson of the United States Department of

Justice testified that he arrested Appellant in Greenville, South Carolina, on April

24, 1995. When the prosecutor asked Donelson why he had arrested Appellant,

Donelson responded, “Mr. Dotson was arrested on the basis of a federal parole

violation warrant.” Defense counsel then requested a bench conference during

which he objected to Donelson’s statement, requested a curative instruction, and

moved for a mistrial. The trial court told defense counsel it would consider the

motion for a mistrial and the court gave the prosecutor specific instructions about

how to question Donelson. After a series of questions, the prosecutor asked

Donelson whether Appellant was arrested on a fugitive warrant from Tennessee

for flight to avoid prosecution for the charges at issue in this case. Donelson then

stated, “That’s another reason, yes, sir.” Defense counsel then requested
-7-

another bench conference during which he again moved for a mistrial because

Donelson had “just reinforced what he said earlier.” The trial court stated that it

would consider the matter later, and the prosecutor continued with Donelson’s

direct examination. At the beginning of trial the next day, the trial court instructed

the jury as follows:

Yesterday, you heard testimony, one of the last witnesses, a Deputy U.S.

Marshall, Ron Donelson. You’re instructed to disregard the statement by

Mr. Donelson that the Defendant, Mr. Dotson, was arrested in South

Carolina on federal process, and you shall not consider that part of his

testimony for any purpose at all. 

Although the record is not entirely clear, this instruction was apparently given

approximately eighteen hours after Donelson’s testim ony. 

ANALYSIS

Appellant contends that the trial court should have granted his request for

a mistrial after Donelson testified that Appellant had been arrested for a federal

parole violation. Specifically, Appellant contends that he was prejudiced by

Donelson’s testimony because it informed the jury that Appellant had been

convicted of some unknown federal crime in the past and created the impression

that Appellant had violated his federal parole by committing the offenses for

which he was charged in this case. Appellant also contends that when Donelson

testified that the Tennessee fugitive warrant was “another reason” that Appellant

had been arrested, this reinforced the testimony about the federal parole violation

and also created the impression that Appellant was facing other charges besides

those in this case. Appellant places great emphasis on the fact that the trial court
1We note that Appellant does not contend that the prosecutor intentionally elicited the

objec tionable testimony from Don elson or a cted improperly in a ny other m anner in c onnectio n with this

testimony. In fact, defense counsel expressly stated during the hearing on Appellant’s motion for 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-

failed to give a curative instruction until approximately eighteen hours after

Donelson’s improper testimony.1

The decision of whether to grant a mistrial is within the sound discretion of

the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996).

This Court will not disturb that decision absent a finding of an abuse of discretion.

State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). “Generally, a mistrial will be

declared in a criminal case only when there is a ‘manifest necessity’ requiring

such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn.

Crim. App. 1991). “The purpose for declaring a mistrial is to correct damage

done to the judicial process when some event has occurred which precludes an

impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.

1996). In determining whether there is a “manifest necessity” for a mistrial, “‘no

abstract formula should be mechanically applied and all circumstances should be

taken into account.’” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993)

(citation omitted).

There is no question that Donelson’s testimony about Appellant’s federal

parole violation was im proper. This testimony obviously had no relevance to any

issue in the case and was clearly prejudicial. Donelson’s testimony informed the

jury that Appellant had previously been convicted of a federal crime and created

the impression that Appellant had violated his federal parole by committing the
2We note that these three factors are by no means the only factors which are relevant to a

determination of whether the trial court properly refused to grant a mistrial nor is it necessary to examine

these factors in every unique case. Rather, these are three factors which are often examined in cases

such as this one, and we conclude that they are especially important in this case.

-9-

offenses for which he was charged in this case. In addition, Donelson’s

subsequent testimony that the Tennessee fugitive warrant was “another reason”

that Appellant was arrested served to emphasize the testimony about Appellant’s

federal parole violation. Of course, even though Donelson’s testimony about

Appellant’s federal parole violation was clearly inadmissible and was clearly

prejudicial, a mistrial was only required if the error created a “manifest necessity”

for a mistrial. 

We have examined numerous cases in which the failure to grant a mistrial

has been upheld on appeal. While Tennessee Courts do not apply any rigid test

when examining the failure to grant a mistrial after a witness has given improper

testimony, there are certain factors that are often considered: (1) whether the

improper testimony was elicited by the State or whether it was a spontaneous

declaration by the witness, (2) whether the case against the defendant was

strong or weak, and (3) whether the trial court gave a prompt curative instruction.2

See, e.g., State v. Hall, 976 S.W.2d 121, 147–48 (Tenn. 1998) (holding that

improper testimony about defendant’s prior crime did not create a manifest

necessity for a mistrial because trial court gave an immediate curative

instruction); State v. Mathis, 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997)

(holding that improper testimony did not create a manifest necessity for a mistrial

because trial court gave a prompt curative instruction); State v. Hall, 947 S.W.2d

181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about
-10-

defendant’s prior incarceration did not create a manifest necessity for a mistrial

because trial court gave a prompt curative instruction); State v. McKinney, 929

S.W.2d 404, 405 (Tenn. Crim. App. 1996) (holding that improper testimony about

defendant’s prior crime did not create a manifest necessity for a mistrial because

the evidence of defendant’s guilt was overwhelming); William s, 929 S.W.2d at

388 (holding that improper testimony about defendant’s prior bad acts did not

create a manifest necessity for a mistrial because trial court gave an immediate

curative instruction); State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993)

(holding that improper testimony did not create a manifest necessity for a mistrial

because the evidence against the defendant was strong and the trial court gave

an immediate curative instruction); Millbrooks, 819 S.W.2d at 443 (holding that

improper testimony did not create a manifest necessity for a mistrial because trial

court gave a prompt curative instruction); State v. David T. Jones, No. 01C01-

9710-CC-00445, 1998 WL 917810, at *2 (Tenn. Crim. App., Nashville, Dec. 21,

1998) (holding that improper testimony did not create a manifest necessity for

a mistrial because the testimony was wholly unsolicited, there was overwhelming

evidence of guilt, and the trial court gave an immediate curative instruction); State

v. Bill Sandel, No. 03C01-9606-CC-00237, 1998 WL 28260, at *3 (Tenn. Crim.

App., Knoxville, Jan. 26, 1998) (holding that improper testimony about

defendant’s prior criminal acts did not create a manifest necessity for a mistrial

because the testimony was spontaneous and nonresponsive and the trial court

gave a proper curative instruction); State v. Grover Livesay, No. 03C01-9510-CC00298, 1996 WL 578499, at *3–4 (Tenn. Crim. App., Knoxville, Oct 9, 1996)

(holding that improper testimony did not create a manifest necessity for a mistrial
-11-

because the testimony was unresponsive and the trial court gave an immediate

curative instruction).

Initially, we note that contrary to the State’s assertions, the prosecutor in

this case is not entirely blameless for Donelson’s improper statements. We

agree with the State that there is nothing in the record which indicates that the

prosecutor intentionally elicited Donelson’s statement that Appellant had been

arrested for a federal parole violation. In fact, it appears from the record that the

prosecutor did not expect Donelson to refer to the federal parole violation.

However, Donelson’s response was hardly unforeseeable. Indeed, it is

reasonable to assume that when a United States deputy marshall who has

arrested a person because of a federal parole violation is asked why he arrested

that person, the deputy marshall would likely respond that he arrested the person

for a federal parole violation. The prosecutor should have foreseen that his

question about why Appellant was arrested invited exactly the kind of response

that Donelson gave.

Second, we note that the evidence of Appellant’s guilt was far from

overwhelming. Although several witnesses testified that one of the masked men

who committed the armed robbery and subsequently fled the police in the

Camaro had physical characteristics that were generally consistent with those of

Appellant, Goodwin was the only witness who ever positively identified Appellant

as one of the perpetrators of the crimes at issue in this case. Further, Goodwin

expressly admitted that he had been untruthful in several of the statements he
-12-

had given the police in regard to the armed robbery and subsequent police

chase. Goodwin testified that in his initial interview with the police, he had lied

about several aspects of the robbery and car chase and had also withheld

information about his two accomplices. Goodwin also testified that he

subsequently gave the police as m any different stories about the events in

question as he possibly could. Goodwin testified that in addition to lying to the

police, he had also lied to other people about the events at issue in this case. In

addition, Goodwin testified that his criminal record consisted of approximately

twenty-seven felony convictions. 

Third, we note that the trial court did not give a curative instruction until the

day after Donelson had testified, and although the record is not entirely clear, the

instruction was apparently not given until approximately eighteen hours after the

improper testimony. We agree with the State that there is no per se rule that a

curative instruction must be given immediately in order to be effective. However,

as indicated by the authorities cited above, the vast majority of cases in which

Tennessee Courts have upheld a trial court’s failure to grant a mistrial in

situations similar to the one in this case have based that determination at least

partly on the fact that a curative instruction was given immediately or at least

shortly after the improper testimony. We conclude that in this case, the trial

court’s failure to give a prompt curative instruction after Donelson referred to

Appellant’s federal parole violation and subsequently reinforced that testimony

was especially prejudicial. The general rule is that the jury is presumed to follow

the trial court’s instruction not to consider the improper testimony. See Mathis,
3

The reco rd ind icate s that after objec ting to Don elson’s re feren ce to Appellant’s federal p arole

violation, defense counsel stated that he believed the trial court should “instruct the Jury to disregard what

[Donelson] just said.” The prosecutor then stated, “Yeah, I think you better.” 

4

The record indicates that for the charge of attempted second degree murder, seven jurors voted

for guilty and five jurors voted for not guilty. For the charge of aggravated robbery, nine jurors voted for

guilty and th ree jurors voted for n ot guilty. 

-13-

969 S.W.2d at 422. However, because the trial court did not give the curative

instruction until the day after Donelson made the improper statements, the jury

had a minimum of approximately eighteen hours during which they were free to

consider the fact that Appellant had been arrested for a federal parole violation.

It is clear that Donelson’s improper testimony created the need for a prompt

curative instruction in order to prevent unfair prejudice to Appellant, and in fact,

the prosecutor expressly agreed with defense counsel that Donelson’s improper

testimony required a prompt curative instruction.3

We conclude that in this case, Donelson’s improper testimony about

Appellant’s federal parole violation created a “manifest necessity” for a mistrial

because the trial court’s failure to give a curative instruction until approximately

eighteen hours after the improper testimony precluded an impartial verdict. It has

not escaped our notice that the jury in Appellant’s first trial was unable to reach

a verdict on the charges for attempted second degree murder, aggravated

robbery, and all lesser included offenses.4

 While we do not have the transcript

of the first trial before us, we presume that Donelson did not testify about

Appellant’s federal parole violation in the first trial. If Donelson did not testify

about Appellant’s federal parole violation in the first trial, then Appellant’s

argument that he was unfairly prejudiced by the improper testimony in the second

trial is strengthened even more. If Donelson did give the improper testimony in
-14-

the first trial, the prosecutor’s failure to prevent this error from happening again

in the second trial is inexcusable.

Accordingly, the judgment of the trial court is REVERSED and this case is

REMANDED for a new trial.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

L. T. LAFFERTY, SENIOR JUDGE