# FILED

March 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE APRIL 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9610-CR-00379 ) Appellee, ) HAMILTON CO UNTY ) VS. ) HON. STE PHEN M. BEVIL, JUDGE ) MICHAEL DEANGELO GREEN, ) (Murder First Degree, Criminal ) Attempt: Especial ly Aggravated Appellant. ) Robbery, Aggravated Robbery- 6

) Counts, Aggravated Assault- 2 ) Counts, Theft- 2 Counts) FOR THE APPELLANT : FOR THE APPELLEE : EDWARD T. LA

NDIS JOHN KNOX WALKUP Suite 327, Doctors Buildi ng Attorney General and Repor ter 744 McCallie Avenue Chattanooga, TN 37408 MICHAEL J. F AHEY, II Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 GARY D. GERBITZ District Attorney General DAVID DENNY Assistant District A

ttorney General Suite 300, Court Building Chattanooga, TN 37402

OPINION FI LED:

AFFIRMED

CHRIS CRAF

T, SPECIAL JUDGE

O P I N I O N2 The defendant, Michael Deangelo Green, was tried by a Hamilton County jury

on twelve indictments,all consolidated for trial, w hich resulted from a crime spr ee committed between July 6 and Jul y 11, 1993. The indictm ent n umbers, dates of offen se, resul ting convic tions and name of each victi m are set o ut below: Indictment # Date Offense Charged Victim 204819 7/6/93 Theft over $1,000 Melinda Davidson 204813 7/6/93 Aggravated Robbery Earl Guilmenot 204814 7/6/93 Aggravated Robbery Michelle Morgan 204816 7/6/93 Aggravated Robbery Ginger Bro wn 204817 7/6/93 Aggravated Robbery Kristi Wilson 204818 7/7/93 Aggravated Robbery Jason Peace 204820 7/7/93 Murder First Degr ee Jeffrey

Wolfe 204812 7/7/93 Criminal Attempt, to wi t: Jeffrey

Wolfe Esp. Aggravated Robbery 200144 7/11/93 Theft over $500 Minnie Hewlett 200090 7/11/93 Aggravated Assault Lashanna Acklin 200091 7/11/93 Aggravated Assault Lorenzo Suttles 200089 7/11/93 Aggravated Robbery William Townsend Proof at the trial showed that on July 6, 1993, appellant, along wi th four other young men, stole Ms. Davidson’s car, then stopped a pedestrian, Mr. Guilmenot, and forced him to dis robe, robbing him of his clothes at gunpoint. They then forced Ms. Morgan’s car off the road into a ditch, and r obbed her

of her purse. Next they forced Ms. Brown and Ms. Wilson off the road, taking money from Ms . Wilson an d the car from Ms. Brown, abandoning Ms. Dav idson’s car. Shortly after midni ght they pulled in front of Mr. Peace’s car and robb ed him at gunpoint

of his wallet, some money and

a radio. Ap pellant next approached Mr. Wolfe and his wife, who wer e stopped at a red light, put a gun to Mr. Wolfe’s head and demanded that they get out of the car. The gun went off, killing Mr. Wolfe. Appellant and the other young men then fled. Three days later, on July11, 1993, appellant and some of the same young men stole another

car belonging to Ms. Hew

lett, and in the process of dri ving it around, pointed

guns at3

two pedestrians, forcing Ms. Acklin to disrobe and beating Mr. Suttles unconscious. Theythen forced Mr. Townsend off his por ch and robbed him at g unpoint of $5 0 in cash and $200 in foo d stamps. The police soon pulled in behind them, and apprehended them after a chase. Appellant w as the leader , always display ed a firearm, and was the driver of all the cars used in the crimes. Appellantappeals as of right from those verdic ts and presents four issues for our review: (1) w hether it is constitutionally permissible to try appellant in state court following his federal court trial on the same facts, (2) whether the trialcourt erred in denying a ch ange of ve nue due t o extensive pretrial publicit y, (3) whether the trial cour t erred in failing

to strike the testimony of a w itness, or in the alternative, to g ra nt a mistrial, when the State failed to turn over a pr ior statement of that witness upon r equest, after his testimony , and (4) whether the trial cour t erred in failing to g rant appellant’s motionfor judgment of acquittal as to three of the indictments. APPE LLAN T’S FED ERAL TRI AL Appell ant was first tried in the United States District Court for the Eastern District of Tennessee on a six count indictment charging him with conspiracy to commit armed carjacking resulti ng in death, th e ba sis for that indictment being the offenses committed July 6-7, 1993, the subject of eight of the Hamilton County indictmen ts. Appellantwas convicted in federal court, and was sent enced on September

12, 1994, to life plus 25 years in th e peniten t iary for those offenses. He now complains that retryi ng him fo r those same offenses in state court constitutes double jeopardy and violates his rig ht to due process. The longstanding princip le of dual sovereignty contemplates that a conviction forthe same identica l offen se by a co urt of another sovereign does not constitute double jeopardy. Ra ybin, Tennessee Criminal Practice and Procedure , § 16.112 (1984 & Supp. 1997). The Tennessee Supreme Cour t, in Lavon v. State , 586 S.W.2d 112, 113-114 (Tenn. 1979), held that

[t]h ere is no question but that suc h a procedure does not subjec t th e defendant to double jeopardy insofar as the guaranty of due process in the 14th amendment of the federal constitution is c oncerned. Bartkus v. Illinois , 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Wh ile the rationale of this case -- that the state and federal government s are distinct sovereig nties, and thus the4 punishmentof a single act by each is not double jeopardy -- has been criticized, a similar approach has provided the basis fora more recent case, which would implythat Bartku s ' analysis of the issue i s still valid. See Unite d States v. Wheeler , 435 U.S. 313, 98 S .Ct. 1079, 55 L.Ed.2d 303 (1978). This court is bound by the decisions of the United States Supre me Court concerning the proper interpretation of the federalcon stitution. Townsend v. Clover Bottom Hospital and School , 560 S.W.2d 623 (Tenn.1978). The double jeopardy provi sion of the Tennessee constitu tion, Article I, § 10, affords the defendant nogreater protection. In the past, this provision has bee n interpr eted to permit successiv e state and federal prosecutions o n the basis of the same "dual sovereignti es" anal ysi s employed in Bartkus , supra , and, given the need for stabil ity in constitutiona l in terpretation, we see insuff icient ca use to de part fro m that pr ecedent now. See also Heath v. Al abama , 474 U.S. 82, 106 S. Ct. 43 3, 88 L.Ed.2d 387 (1985). Thus, in violating the law s of two sovereigns , appellant can besuccessively pr osecuted under the laws of both without subjecting him to double jeopardy. State v. Wyche , 914 S.W.2d 558, 561 (T enn. Crim. App. 1995). Furthermore, appellantwas convicted in federal court of conspiracy to commit carjacking while possessing a loaded f irearm, which is a di fferent offense from the

ones charged in the Hamilton C ounty indictments. “On examination of thepredicate federal charges as contrasted with the State charges it is readily apparent that distinct sub stantive o ffenses are laid by the federal in dictment and the State [indictments .] One factual base may be the foundation for multiple substantiv e offenses with distinct, separate, and indispensable elements. Conspiracy charges are distinct from charges of the consummated substantive offen ses.” State v. Frank Mongi one , No. 115 (Tenn. Crim. App, Knoxville, Janua ry 31, 199 1). Therefore, no due process or double jeopardy problem arises from the subsequent state prosecution. DENIAL OF CHANGE OF VENUE Appellant filed a motion for change of venue due to the pret rial publicity giv en the murder

and the subsequent federal tria l. At the hearing on the moti on, appellant requested that the trial jud ge reserve the motio n for change of venue until the day of trial, to see whether or not appellan t could ge t an unta inted jur y. During the voir dire, forty eight of the jurors, approx imately half, indicated

they had heard something about the murder, and they were then individually v oir dired by the tri al judge and atto rneys concerning their knowledge of the case, and their ability to be fair. Only two juror s had to be excused because they indicated that they had follow ed the case, were familiar5

with the details, and had formed an opinion of appellant ’s guilt. Two jurors were also excused for other reasons, one because he knew the victims, and another be cause he had been a witness in a trial concerning his neighbor’s murder. All the other jurors examined indicated that they remembered no details other than that a man had been killed during an attempted car theft, and all indicated that they could giv e appellant a fair trial. None of the jurors examined had any knowledge of appel lant’s federal trial

or conviction. The

trial judge therefore found that appellantcould get a fair jury without

a change of venue, and denied the motion. A jury of twelve, plus three

alternates, was selected and sworn, only sev en peremptory challenges having been exerci sed by both sides combined. Appellanthas not established that his jury was tainted b y the pre-trial publicit y. Whether to change venue because the j ury might not be imparti al is a matt er whi ch addresses itself to the sound discreti on of the trial court; the appell ate court will not interfere with the exercis e of discretion absent clear abuse. State v. Me lson , 638 S.W.2d 342, 360 (Tenn. 1982), cert. denied , 459 U.S. 1137, 74 L. Ed. 2d 983, 103 S. Ct. 770 (1983). Gener

a lly, the accused must demonstrate that the jurors who heard the case were biased or pr ejudiced because of

pre-trial publicity. A long list of factors to consider in deciding w hether venue should be change d is cont ained in State v. Hoover , 594 S.W.2d 743, 746 (Tenn . Crim. App. 1979). Prejudice wi ll not be presumed on the mere showing that there was consid erable pr e-trial pu blicity. Extensive knowledge in the communit y of the crimes of the alleged offender is not sufficientby itself to render a tr ial constitutionally

unfair. State v. Stapleto n , 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982 ), citing Dobbert v. Florida , 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); see also State v. Kyger , 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). Here, the petitioner failed to demonstrate the kind of bias or prejudice that would have precluded a fair trial.

INTERVIEW SUMMARY OF THA DDEUS DANIE L The first witness call ed by the state was Thaddeus Daniel, one of the juveniles who accompanied appellant during the s eries of crimes for which he was on trial.6

Daniel indicated during his testimony that he hadalso “told what happened” when he

was in juvenile court, pr ior to being offered a 20 year settlement. At the conclusio n of direct examin ation, but prior to cross-ex amination, appellant’s attorney informed the trial judge in front of the jury that he needed time to review the wi

tness’s “rather lengthy previousstatement.” The state then informed the trial judge, als o in fron t of the j ury, that the defe nse had p ossessed the state ment fo r some tim e. After both att orneys

were asked to approach the bench, the state accu sed a ppellant’s attorney of “theatrics.” Appellant’s attorney then admitted that he had already pos sessed a copy of Daniel’s prior testi mony from the federal trial, but that he had never been given any statements from juvenile court. The state responded that there were no juvenile court statements. Beca use o f the confusion of whether or not the w itness had made statements during a juvenile court procee ding, or had just made statements during the time his case was

still being handled in juvenile court, the w itness was recalled to clear the matter up and testified that he meant that he had told “the federal people” w hat had happened, before agreeing to his offer of settlement. The following ex change then took place between the court and appellant’s attorney, prior to cross-exa mination: THE COURT: .... All right, is there anything else that needs to be taken up with reference to the statement issue? Does that clarify it, Mr. Landis? MR. LANDIS: Yes, it does, Judge. THE COURT : Okay. MR. LANDIS: That’s the firs t I’d heard of anything in juvenile court. App ellant did no t make a request for any st atements given by thi s witness to “the federal people,” at this time, but i nstead proceeded withthe cross-examination of the witness. One of the last witnesses c alled by the state in its

proof was Wayne Jackson,

an FBI agent, who testified on cross-examination that he interviewed Daniel in February1994, and later reducedthat interviewto a “summarization,” called an “FD302.” He was asked repeated questions by appellant about what Daniel told him in this interview, and re peatedly suggested to appellant’s attorney that he be allowed to review the summarization to aid his testimony. Appellant’s attorney finally agreed, and the state p as sed the document to the witness , who proceeded to testify from it. Alth ou gh appellant’s attorney thank ed the state for passing the docu ment to the7

witness, and so obviouslyknew of its existence, he nev er asked to be allowed to see it, and never objected to its being given t

o agent Jackson. At no time did the defense appear to be surprised by the existence of the “FD- 302" of Thaddeus Daniel. At the end of the state’s proof, appellant moved for a mistrial on the bas is that the state had failed to

produce t his document after Daniel’s tes timony, pursuant to Rule 26 .2 of theTennessee Rules of Criminal Pr ocedure, also known as the “Tennessee Jencks Act.” Section (a) of that rule provides: Motion for Production. - After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who di d not call the witness, shall order the attorney for the state or the defend ant and the defendant's attorne y, as the case may be, to produc e, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject mat ter concerning whi ch the witness has testified. Section (e) of that same rule provides for sanctions for nonco mpliance, as follows: Sanction for Failu re to Produce Statement. If the other party elects not to comply with an ord er to deli ver a state ment to t he moving p arty, the court shall order that the testimony

of the witness be

stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice . (emphasis supplied) Appellant, in a prior

motion hearing, had already been granted production of all Jencks material by the trial court. It is the contenti on of appellant tha t the “F D-302" written by Agent Jackson w as a prior statement of the wi tness, and therefore its nonproduction should have resulted in a mistrial, in that Daniel was a crucial witness forthe state and the statement reveals that Daniel was granted federal immunity for his federal grand jury tes timony. T he trial court, after a hearing, ruled that the “FD302" was a statement that should ha ve been provided to the defense under Rule 26.2, but also noted that there was some confusion a s to this issue since the feder al authoritiesapparently did not consi der it a statement for

their trial purposes. The court then found that there was no wr ongdoing on the part of the state, or any intent to keep the statementfrom the defense, but that it was “ more of a matter of misunderstanding and co nfusion ,” and dec lined to i mpose sa nctions. The trial judge did , howeve r , reopen the state’s proof in th e interest of fairness, recall ed Daniel, and allowed appellantto cross-examine him w ith t he summarization of the agent’s interview of8

Daniel. As seen from the trial record, althoug h appellant knew of the exi stence ofthis document, and allowed it to be passed to a witness during testimony, he never ask ed the trial cour t to order its produ ction fo r exa mi nation. This Court also respectfully di sag rees with the trial court’s finding that the summarization in question was a “statement” as defined by Rule 26.2. Section (g) of that rule states: Definition. As used in this rule, a "statement" of a witness means: (1) A written statement

made by the witness that is s igned or otherwise a dopted or approved by the witness ; or (2) A substanti ally verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statementand that is contained in a stenographic, mechanical , electrical, or other recording or a transcription thereof. (emphas is supplied)

The document at issue was a summar ization written by an FBI agent after interviewing

Daniel, which w

as later transcribed as

a record of

his interview with this witness. It was not a “substantially verbatim recital” of the interview, nor was it “recorded contemporaneously.” Ev en actual notes an i nvesti gator made while interviewing

a witness do

not qualify under the definition of a "substantially verbatim recital" of a witness's oral statement under Rule 26.2 (g). State v. Payton , 782 S.W.2d 490, 494-95 (Tenn. Crim. App. 1989). T his state ment was o nly a summ ary, and was the statement of an FBI agent, not Thad deus Daniel. There is also no evidence in the record that Daniel ever adopted, approved, or

even knew of the summary’s ex istence. Rule 26.2 was formerly conta ined in Rule 16(E). Prior to its separation from our Discovery Rule and its renumbering , there was

a g reat deal of confusion among the bench and bar as to what was disc overabl e pretrial, and what

was “Jencks material ,” and therefore only discoverable after direct testimony

of a witness. In State v. Robinson , 618 S.W.2d 754, 759 (Tenn. Crim. App. 1981), this Court attempted to resol ve the confusion, and held that und er the n Rule 16(E) a summary of a witness's pre-trial statement w ould not be subject to inspecti on under the "Jencks Act" unless it were signed, adopted or appr oved by t he witness. Although the state might in some situations be under a duty to turn a statement of

this ty pe over to the defense, due to its exculpatory nature, for instance, or fo r othe r9

legitimatereasons , the sta te was u nder no o bligat ion here to furni sh a copy

of t hi s summary to the defense as “Jenck s material” under Rule 26. 2. Even if we held the “FD-302" of Daniel’s interview to be a prior statement under the rule, the action of the trial judge in reca l ling the witness for additional crossexamination prior to thebeginning of defense proof insured that a mistria l would not be “ required by

the interest of justice” pur suant to Rule 26.2 (e), as there was no prejudice to appellant.

MOT ION FOR JUD GME NT O F ACQ UIT TAL Appellan t allege s that the trial judge s hould have granted his moti on for judgmentof acquittal as to two i ndictments due to insufficiency of the evidence: the AggravatedAssault upon Lorenzo Suttl es, and the Aggra vated Robbery of Kristi Wilson. Appellant further claims that the conviction for Crim inal At tempt, to wit: EspeciallyAggravated Robbery should not stand in light of his conviction f

orFelony Murder on the same facts. The indictment charging the AggravatedAssault alleges that appel lant caused “Lorenzo Suttles to reasonably fear imminentbodily injury by use of a deadly weapon.” Although Mr. Suttles did not testify, his companion Lashanna Acklin did testify that while walking with Mr. Suttles, five young men exited a car, forced her to completely disrobe at gunpoint and forced Mr. Suttle s to remove his clothes, beating him unconscious. She identified a photo of the car in which appell ant was arrestedshortly afterthe assault as being the ca r the young men were driving. Two of those young men, Thaddeus Daniel and Jermichael Young, identified appellant as the dri ver during the assault, and testified that he had a gun, and was their leader. They stated that he got out with them and

stood in front

of the station wagon wi th a ski mask on, holding a .380 handgun, while the as saults took place. The indictment charging Ag gravated Robbery al leges that appellant ...did unlawfu lly, i ntentio nally,knowi ngly, viole ntly, b y use of a deadly weapon or by the display of any article used or fas hio ned to lead Kristi Wilson to reasonably believe i

t to be a deadly weapon, and putting KristiWilson in fear, take from her person money.... Although Ms. Wilson didn’t testify, her companion and driver, Ginger Brown, stated that

a car full of young men ran them off the road, and one of them made Kris ti Wil son give10

him twenty dollars at gunpoint. They both wer e forced to sit on the ground while Ms. Brown’s car was stolen, and M s. Davidson’s prev iously stolen car

was abandoned at the scene. ThaddeusDaniel testified that appella nt was the leader, wa s one of the two men who got out of the car duri ng the robbery, and w as the driver of both cars

. Both of these incidents fit in with other witness testimony involving appellant in other crimes near in time, with the same criminal actors in the same cars, with appellant being the leader and driver. In de te rmining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor maythis court substitute it s inferences for those drawn by the tr ier of fact from circu msta ntial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (Tenn. 1956). This court is req uired to afford the State of Tennes see the strongest legitimateview of the evidence contained in the record as well as all reasonable and legitimateinferences w hich m ay be drawn from the evi dence. State v. Herrod , 754 S.W.2d 627, 632 (Tenn. Crim. App. 1988). Questions concerning the credibi lity of the witnesses, the weight andvalue to be given the evidence, as well as all factual issues raised by the evidence, are r esolved by the trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A gui lty verdict by the jury, approved bythe trial judge, accr

edits the testimony of

the witnesses for the

State and resolves all conflicts in favor of the theory of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Because a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused has the burden in this court of illustr ating why the evidence i s insuf ficient to support the verdi ct returned by the trie r of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the sufficiency of the evide nce unless thefacts contained in the record and the inferences which may be draw n from the facts are insufficient, as a matter of law, for

a rational trier of fact to find the accused guilty bey

ond a reasonable d oubt. State v. Matthews , 805 S.W.2d 776, 780 (Tenn. Crim. App. 1990). We find the fact s shown in the record sufficient to sustain these two convictions. Even though appellant w as11

not identified as being direc tly responsible for thes e two particular

crimes, there was sufficientproof f or the jur y to find t hat he was “criminal ly r esponsible f or an offense committed by the conduct of another” pursuant to T.C.A. § 39-11-402. Appellantalso alleges in his b rief that the jury “acquitted the defendant of the count charging premeditat ed murder

and convicted of felony murder. Consequently the conviction for attempted especially aggravated robbery cannot stand.” We initially note that appellant h a s cited no legal authority in support of his argument, which results in a waiv

er. Rule 27(

a)(7) of the Te nnessee Rules of Appellate Procedure. Appellantalso fails to state a ny legal gro unds for this contention. In State v. Blackburn , 694 S.W.2d 934 (Tenn. 1985), our Supreme Court held that the imposition in a single trial of du al convic tions for both felony murder and the underlying felony does not violate constitutional prohibitions against dou ble jeopardy, as the two statutes

are directed to “s e parate evils.” Id . at 936-37. See also State v. Barber , 753 S.W.2d 659, 671; State v. Zirkle , 910 S.W.2d 874, 89 0 (Tenn. Crim. App. 1995). This issue is without merit. Having found no reversible error in the court below , t he judgment of the trial court is therefore AFFIRMED.

CHRIS CRAFT, SPECIAL JU DGE

CONCUR: JERRY L. SMITH, JUD GE

JOE RILEY, JUDGE