### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 8, 2000 Session STATE OF TENNESSEE v. DAVID JOHNSON Appeal from the Criminal Court for Shelby County Nos. 96-13580 & 97-08355 Chris Craft, Judge

No. W1998-00687-CCA-R3-CD - Filed March 14, 2001

The defendant appe

als from his

Shelby County Criminal

Court conviction and sentence for second degree murder. The trialcourt sentenced the defendant to 37 years in the Department of Correction as a Range II multiple offender. In this direct appeal, the def

endant complains t

hat the evidence

is insufficient;

that double jeopardy barred his retrial following the grant of a mistrial; that Jencks Act material, police reports, and arrest histories of state witnesses were improperly withheld; that he w as notallowed to

impeach a key witness in violation of his confrontation rights; that the trial court erred in ruling that his pr

ior convictions co

uld be used to impea

ch him if he te stified; that t he jury was improperly

instructed; and that his sentence is excessive. We are unpersuaded that reversible error occurred and th

erefore affi

rm the judgment a

nd sentence of th

e trial court. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and T HOMAS T. W OODALL , JJ., joined. Michael E. Scholl, Memphis, Tennessee(on appeal); A.C. Wharton, Jr., Distric

t Public Defender; Phyllis Aluko, Assistant Public Defender; and Gwendolyn Rooks, Assistant Public Defend e r (at trial), for the appellant, David Johnson. Paul G. Summers, Attorne y General

and Reporter; J. Ross

Dyer, Assis

t ant Attorne y General ; William L. Gibbons, District Attorney General; Jerry Kitchen,Assistant District A ttorney Ge

neral; and Julie Mosley, Assistant District Attorney General, for the appe llee, State of Tennessee. OPINION The defendant, David Johnson, appeals as of right from hi s She lby County conviction for second degree murder. See Tenn. Code Ann. § 39-13-210 (1997). The defendant’s first trial on the charged offense of second degree murder wa s terminated before verdict when the jury was exposed to improper

and harmful statements by prosecution counsel. The mistrial was followed by-2-

the defendant’s reindictment on charges of premeditated first degree murder and felony murder. At the conclusion of

the second trial,

the jury fou

nd the defendant

guilty of th

e lesser-includ

ed offense of second degree murder. The trial court sentenced the defendant as a Rang e II multiple offender to 37 years confinement in the Department of Correction. I n this appeal, the defendant presents the following issues for our consideration:

1. Whether the trial court erred in denying the defendant’ s pretrial request for Jencks Act material. 2. Whether the trial court erred by not requiring

the state to produce police reports a

s being potential

ly exculpator

y material. 3. Whether the trial court erred in notrequiring the state to produce the arrest histor

ies of its witnesses

. 4. Whether the trial court erred by allowing all of the def e ndant’s convictions to be available for imp eachment if

the defendant we

re to tes tif y. 5. Whether double jeopardy barred the retrial of the defendant when his first trial was te

rminate d, without a verdict, because of the harmfully prejudicial questioning of a witness for the state.
6. Whether the trial court

erred in allowing the state, after the mistrial was declared, t o retry the defen dant on a su perseding indict ment alleging more

serious offense

s. 7. Whether the trial court erred by refusing to grant the defendant’s motion to exclude the jury instruction charged pursuant to

T.C.A. § 40-35-201(b)(2). 8. Whether the trial court erred in refusing to allow impeachment of witness Mar y Payne concerning the dismissal, prior to the defendant’s trial, of her probation violation charge. 9. Whether the trial court erred by not grant ing a motion for directed verdict and judgment of acquittal after the state’s proof and at the end of the trial. 10. Whether the court

erred in sentencing the

defendant to 37 years in the Tennessee Department of Correction.1 Evident ly, the moni

ker “Mil k” related t

o a tat oo of a mi

lk bot tle on the man ’s ar

m. -3- After a thorough review of

the record, the briefs of the parties, and the applicable law, we affirm the trial court's judgment and sentence.

The events that form th e basis for t he defendant’s prosecution and conviction unfoldedin the late summer of 1996. On the eveni

ng of September

21, at approximatel

y 10:30 p.m., David Payne was shot in the back at point -blank rang e outside his sister ’s home. He died sh

ortly thereafter f rom blood l oss occasio ned by the shoo ting.

The victim’s sister, Ma

tti e P ope, lived at 929 No rth Seventh Avenu

e in Memphis, Tennessee. The victim often visited with

her on the weekends, and the weekend of September 21 was no exception. Several other people also were visiting that day. Shortly before

the shooting, Ms. Pope and her guests w

ere outside her h

ome, some

standing and others sitting in chairs on the front porch. The victim had decided it was time to leave, and he walked to his car that was parked in the driveway along the side of the house. As the victim prepared to unlock the car door, a man appeared andwalked up to the victim on the dri ver’s side of the car. Words were exchanged between the victim and the man. Thevictim then turned to leave, at which point the other man discharged a firearm into t he victim’s b ack. The victim ma naged to walk up

to the porch and in

side the house before coll apsing in th e bathroom f loor and dying.

Ms. Pope could not identify the person who killed her brother. The only description she could provide was that the shooter was a black male of medium height with a jherri curl who was wearing dark clothing. T he only part of the exchange between the victim and the shooter that she heard was the victim’s remark that he “didn’t have any.”

Of those present a

t Ms. Pope’s house when the shooting occurred, the only other person who tes tified for the state was Mary Pay

ne, the victim’s nie

ce. Ms. Payn

e was the sole prosecution witness who could identify the defendant as the individual who killed the victim. The state did not p rodu ce or introduce the firearm used to commit the murder, and no other physica l evidence connected the defendant to the murder.

Mary Payne testified that, when the shooting occurred, she was standing on the porch about thirteen or

fourteen feet from the victim’s automobile. Fifteen to twenty minutes earlier, she hadsmoked crack cocaine. She testified that a man, known to her by the street name “Milk,” 1 walkedfrom behinda tree and up next to the victim’s car. Mary Payne said that she over heard “Milk” instruct the victim “to give him the money.” The victim answered that he did not have any money on him, whereupon “Milk” retorted, “Well, don’t move then goddamn it.” When

the victim turnedand triedto walk away from the car, “Milk” shot him in the back. After “Milk” fire d the shot, Mary Payne saw him as he wa lked off and down the street with a pistol in his right hand. At trial, Mary Payne identified the defendant as the pe rso n she knew as “Milk” and whom she had known for four or five

years.-4- The defense launch

ed a vigorous at

tack on the cred

ibility of this c

rucial witness, which included forays into her crack cocaine ad diction, he r prior convictions for attempted aggravated

assault, forgery, possession of cocaine with intent to sell, prostitution, and her impersonation of her sister, Carolyn Pope. The impersonation ca me about whe n the police questioned her in

connection with the victim’s shooting; because there were warrants outstanding for her arrest, Mary Pay

ne misrepresented her real identity to the police. During cross examina tion, th e defense also attempted to establish that when questionedby the police, Mary Pay ne identified the shooter as “the dude” who shot her uncle and not the individual known to her as “Milk.” To that end, the defense treated the written account of Car olyn Pope a/k/a

Mary Payne, which she g

ave to the police, as a prior inconsistent state

ment. Also recognizing the crucial importance of Mary Pay ne to its case, the state inquired about the prior statement further on redirect examination. The trial court decl ared a mis trial when the following transpired: Q. And did [the police ] ask you, did y

ou see who shot the v

ictim? A. Yes, ma’am. Q. And did you answer, yes, sir. I t was a guy named Milk? A. Yes, ma’am. Q. And did they ask you is Milk the subject’s real na me or is it

his nickname? A. Yes, ma’am. Q. And did you answer that is his nickname? A. Yes, ma’am.

. . . Q. And did they

ask you, do y

ou know the suspec

t? A. Yes, ma’am. Q. And did you a

nswer, he lives in

the neighborhood, and

he just got out of jail. He is always going around and robbing people? A. Yes, ma’am.-5- MR. JOHNSON: Your Honor, may I approach the bench? Approximately

one month after the mistrial, the grand jury returned a new indictment against the defendant in c

onnection with Dav

idP ayne’s death. The new indictment charged premeditated

first degree murder and f elo ny murder, as contrasted with the original indictment’s charge of second degree murder.

The second trial began in January 1998. Mattie Pope and Mary Payne again testified. The passage in Mary

Payne’s statement that had occasioned the mistrial was not introduced. As part of the second trial, thestate prese nted the te stimony of for ensic patho logist, Th omas Deerin g, that the cause of death

was blood loss from t

he single gunshot wound. In addition, crime scene officer, Sergeant Jimmy L. Daniels, and arresting off ice r, Patrol Office

r John Guinn, testifie

d about their roles in the case and identified various crime scene photographs; no di r ect evidence of the defe nda nt’ s gui lt r esu lte d fr om t hei r te sti mon y.

Also as part of the sec

ond trial, the state

offered the testimony of Angela Hull. She hadnot been called as a

witness before the first trial ended in a mistrial. Her testimony, like that of Mary Payne, was key to establishing the identity of the person who mur dered the vict im. Angela Hull testifiedthat she learned of the shooting shortly after it happened. She was in the neighborhood that evening, and she knew the victim and Mary Pay ne. When Angela Hull came upon the homicide scene, she inquired what

had happened. She

was told that “Milk”

had shot the victim.

She testified that several hours later, between 2:15 and 2:30 a.m., she encountered the defendant, who was known to her as “Milk,” over in Scutterfield.

According to Angela Hu ll , upon seeing “Mi lk” she immediatel

y confronte

d him, “Milk, I just heard you

just killed somebody.” The defendant at first denied any involvement, but Angela Hull testified that

when she persisted, the defendant looked at her and said, “Yes, I killed the man because he raped and killed my sister in 1986.” Thereafte r, over the cour se of the next few hours, Angela Hull wen

t back to the homicide scene, encountered the defendant a second time on Thomas Street where he solicited her to get high with him, we nt with hi m to a friend’s house on Thomas Street, and final

ly got word

to a next door-neig

hbor tocall 911 and report that she had the “suspect.” The p

olice responded

to the call, and the

defendant surre

ndered without inc

ident. Angela Hull testifie

d that she was not “high” when she first encountered the defendant. She did, however, havea history of drug use that included at least three prior convictions for possession with intent to distribute. She said that she knew of the defendant’s sister “when we worked the streets,” and she said that she knew the sister had died in 1986 of a drug overdose. At trial, she related that based on that knowledge, it made no sense to her when the defendant told her that the victim had raped and killed the sister some ten years earlier. Ang ela Hull testified that she had no reason to di

slike “Milk” or lie

about him. Both Mary Pay ne and Angela H

ull testified that th

ey had bee

n threatened with

harm, by persons unknown to them, if they testified in the case.2 Our discussion of the issues

in this opinion is in a slightly different order than presented in the parties' briefs.

-6- At the conclusion of the state’s case, the defense rested without offering proof. Based on the evidence, the jury

returned a verdict finding the defendant guilty of second degree murder as a lesser-included offense of premeditated first degree murder. I. Sufficiency of the Evidence 2
The defendant complains that the state failed to prove beyond a reasonable doubt that he was guilty of second degree murder . We must disagree. When an accused challenge s the sufficiency of the evidence, an appellate cour t sur veys the evidentiary

landscape, inclu

ding its direct a

nd circumstantial

contours, from the van tage pointmost agreeable to the prosecution. The reviewing court then decides whether

the evidence and the inf erences that flow therefrom permit any rational fac tfinder to conclude beyond a reas onabl e doubtthat the defendant is guilty of the ch arged crime. S ee Tenn. R. App. P. 13(e ); Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1 979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on othe r grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determini ng s ufficiency of the evidence, the appellate court doe s not replay and reweigh the evidence. See State v . Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness credibility, the weight and value of the evidence, and factual disputes are entrusted to the finder of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 ( 1956); Farmer v . State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Simply stated, the court is not an appellate surrogate for the trier of fa ct. Second degree murder is “[a] knowing killing of another,” punishable as a Class A fel ony. Tenn. Code Ann. § 39-13-210 (1997). Visualizing the evidence in this c ase most favorab

ly to the state, we conclude that the proof sufficiently supports the defendant’s convic tion for second degree murder. The defendant’s argument on the evidence sufficiency is an

attack on the cre

dibility of Mary Payne, the only

witness who identified “Milk” as the shooter.
At trial, the defense aggressively pursued a strategy designed

to portray Mary Pay

ne a/k/a Car olyn Pope as an unsavory character with mendacious qualities. This witness provided an opportunity

for the defense to travel most of the traditional avenues for witness impeachment: prior felony convictions, impairment

of perception by drug usage, prior inconsistent statements, and prior instances of dishonesty and lying to law enforc ement. The prosecu tion’s case w as subjected to meaningfuland probing adversarial testing, and the jury was able to weigh all of the circumstances andreach its own con

clusion about Mary

Payne’s cr

edibility. We c

annot substitute our

judgment. The defendant’ s sufficiency claim fails.3 Rule 26.2 provides in pertinent pa rt,
After a witness ot

her than the def

endant has tes

tified on direct examina

tion, the trial
court, on motion of a party who did not call the witnes s, shall order the attorne

y for
the state or the de fendant and the defenda nt’s attorney, a s the case ma y be, to produce, for t

he exami

nati on and use of th

e moving

party , any stat

eme nt of t he
witness that is in their possessi on and that relates to the subject matter concerning
which t he witn ess has t estif ied.

. . .

. . . Upon deliver

y of the stateme nt to t he moving par

ty, t he court, upo n applicat ion of that party, may recess proceedings in the t rial f or the exa

minati on of
such stateme nt and for pr eparation for its use in the trial.

Tenn. R. Crim. P. 26.2(a), (d). -7-

II. Failur

e to Order

Pretri al Produc

tion of Jencks Act Material The defendant, on ap

peal, asks this cou

rt to declare tha

t Criminal P

rocedure Rule 26 .2 is unconstitutional because witness statements should be provided prior to trial instead of after the witness testifies. 3 The defendant identifies no witness statements from his trial that are involved in this issue, nor does he point to any resulting prejudice that he sustained. He generically invokes the Sixth andFourteenth Amendments to the United States Constitution, but he f ails to cite any

authority that has interpreted

these Amendments a

s he suggests. T

his issue has beenwaived. Tenn. R. App. P. 27; Tenn. Ct. Crim. App. R. 10(b).

At any rate, our supreme court previou sly has r uled that there is “no constitutional requirement

that the State prov

ide witnesses’ sta

tements prior to

trial.” State v. Taylor , 771 S.W.2d 387, 394 (Tenn. 1989) (no requirement under Rule 2 6.2, ev en in capital cases). “The rule,” the supreme court declared, “is clear that the State has no obligation to produce statements of a

witness until the conclusion of the witness’ testimony on direct examination.” Id. III. Discovery of Police Reports-8- In his brief, the defendant mounts another constitutional challenge. This one is aimed at Criminal Procedure Rule 16, governing discovery in criminal cases. Tenn. R. Crim. P. 16. The defendant’s argument is two-fold. First, he argues that Rule 16(a)(2) is unconstitutional because it prohibitsthe defense from obtaining discovery of police reports in the state’s possession in violation of his due proces s rights and his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Second , he attacks Rule 1 6 on the basi s th at not allowing a party compl

ete accessto materials, as in

a civil case, viol

ates due proces s and the Sixth and Fou rteenth Amendmen

ts to the United States Constitution.

The defendant does not

identify any particular police report at issue, and the record does not contain any

sealed reports f

or appellate re

view. The defen

dant, moreover,

fails tospecify how he was prejudice

d by being d

enied access to

any such reports. Thi

s issue is waived. T

enn. R. Crim. P. 27; Tenn. Ct. Crim. App. R. 10(b).

At any rate, Rule 16

“is notthe exclusive procedure for obtaining discovery.” Tenn. R. Crim. P. 16 AdvisoryComm’n Comments. For instance, “discovery required by

due process is notexpressly structured

into the rule.” Id . The prosecution’s duty to disclose exculpatory evidence does not depend on Rule 16 for its existence or continued vitality. S ee Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963). The defendant posits as a general proposition that police reports c

ontain potentially

exculpatory

information, but su

ch speculation do

es not rise to a lev el that requires automatic disclosure of all poli ce reports. See , e.g. , State v. Edgin , 902 S.W.2d 387, 389 (Tenn. 1995) (four prerequisites to establish Brady violation; the key is to show thatomitted evidence is of such significance to deny right to fair trial).

This issue must fail.

IV. Release of Arrest Histories
In his next issue, the defendant asse rts that the trial court committed error in denying his request that the state be required to furnish him with the arrest histories of state witnesses. The defendant claims that he is entitled to the information pursuant to Code section 40- 32-101(c)(3), which provides, “Release of arrest histories of a defendant or potential witness in a criminal proceedingto an attorney of record in the proceeding shall be made to such attorney upon request." Tenn. Code Ann. § 40-32-101(c)(3) (Supp. 2000).

This claim is not novel. Eac h time it ha s been considered, the ruling has been the same. Neither Criminal Pr ocedure Rule 16 n

or the decisional

law in thisstate imposes on the state a dut y to obtain and provide the arrest histories of its witnesses. See State v. Workman , 667 S.W.2d 44, 51 (Tenn. 1984); State v. Baker , 623 S.W.2d 132, 133 (Tenn. Crim. App. 1981). Moreover, it has been settledthat section 40-32-101(c)(3) does not create or provide a pretrial remedy for the discovery of arrest histories from the state. State v. Burton , 751 S.W.2d 440, 448-49 (Tenn. Crim. App. 1988).-9- This is no t to say that the state has no other obligation regarding a rrest histories. Pursuant to Brady v. Maryland

and it progeny, the state has a constitutional obligation to provide an accused withexculpatory

evidence. Exculpatory evidence includes impeachment evidence. United States v. Bagley , 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). Even so, the defendant has made no attempt in this case to demonstrate that the state suppressed any favorable or material evidence. Th e t rial court did not improperly decline to order that the state turn over the requested arre

st histories. V. Impeaching Conv ictions The defendant also a

lleges as erro

r that t he trial court erroneously ruled that if he chose to testify, his prior convictions for seco nd d egre e bu rgla ry, gr and lar ceny, att emp ted rob bery, androb bery w oul d be adm iss ibl e to imp each his cred ibi lit y. Following this ruling, thedefendant did not take the stand.

Subject to certain conditions for admissibility, Tennessee Evidence R ule 609 authorizes the use of proof of a witness's pr

ior convictions in o

rder to att ack a wit nes s's c redi bil ity. Tenn. R. Evid. 609(a). Th e prior convictio n must be for a fel

ony or a cr

ime involving disho

nesty or false statement.

Tenn. R. Evid. 609(

a)(2). To be elig

ible as an im

peaching co nviction, a prior felony con

viction need not inv

olve dishonesty. When the witness to be impeached is the criminal defendant,

however, the state must give notice prior to trial of its intent to utilize the conviction for impeachment

purposes, Tenn. R. Evid. 609(a) (3), and upon request, the court must determine the admissibility

of an eligible conviction by deciding whether "the convict ion's pro bative value on credibility

outweighs its unfair prejudicial effect on th e substantive issues ." Id. In making thi s determination, "two criteria are especially relevant." State v. Mixon , 983 S.W.2d 661, 674 (Tenn. 1999). First, the court must "analyze the relevan ce the imp eaching conviction has to the issue of cred ibi lit y" and "explain [the relevance] onthe record," id. , and second, it must “assess the s imilarity betweenthe crime on trial and thecrime underlying the impeaching conviction,” id. (quoting Cohen, et al. , Tennessee Law of Evidence § 6.09 [10] [c], at 6-97 to -99 (4 th ed. 2000)).
In this case, the balancing of probative value and unfair prejudicialeffect is the issue; that is, whether the probative value of the defendant’s burglary , robbery, and larceny

convictions on the defendant’s credibility outweighed i ts prejudicial effect upon the substantive issues presented at tri al. T he defendant co

mplains that his prio

r convictions, par

ticularly th

ose for robbery

, would be prejudicial considering that he was on trial for felony murder with robbery being the underlying fel ony. On appellate r eview, the t rial court's ruling on the admissibility of prior convictions for impeachment purposes is subject to reversal only for abuse of discretion. See, e.g. , Mixon , 983 at 674.-10- The trial court in

this case conducted a jury-out hearing and thoughtfully considered the admissibility o

f the prior convic

tions. The trial co

urt took in

to acc ount whether the prior convictions were similar to the offense being

prosecuted, whe

ther the prior co

nvictions in

v olved crimes of dishonesty, which would be particularly re levant to the defendant’s credibility if he testified, and whether the jury might b rand the def endant as ha ving a propensity t o commit robberies

. The trial court concluded that theprobative value of the con vic tio ns, part icu lar ly th ose for rob bery, was great and

directly relevant to the defendant’s credibility. More so than the burglary and grand larceny convictions, which occ urred in 1989, the trial court found that the more recent robbery convictions were particularly relevant to whether or not the defendant was honest. The trial court also o bserved that

any prejudice would be alleviated somewhat because the jury would receive a curative instruction.

The trial court correctly analy zed and applied the rules and pertinent decisional law, andit conscientiously weighed prejudicial effect aga inst probative value. We cannot say , under these c onditions, tha t the trial court abused its discretion in this case in allowing evidence of the defendant's con vic tio ns i nvo lvi ng bu rgla ry, l arce ny, and robbery, all of which are highly probative of credibility. See State v. Crank , 721 S.W.2d 264, 266 (Tenn. Crim. App. 1986) (offense of robbery is “highly pr

obative on the cre

dibility question” because it involves dishonesty); State v. Goad , 692 S.W.2d 32, 37 (Tenn. Crim. App. 1985); State v. Stafford, 670 S.W.2d 243, 245 (Tenn. Crim. App. 1984). We, therefo re, affirm t he trial cou rt’s rulin g. VI. Double Jeopardy Violation and Amendment of Charges after Mistrial a. Double Jeopardy The issue that the def

endant presses mo

st insistently

is that the Tennesseeand United States constitutional provisions against double jeopardy barred re trial, after his first tr

ial ended in a mistrial because of improper prosecutorial questioning of witness Mary Payne a/k/a/ Carolyn Pope. This double jeopardy

flag of prosec

utorially pr

ovoked mistrials is f

requently r

aised but rarely saluted. This case is no exception.

The doub le jeopardy clause of the Fifth Amendment protects defendants fr om repeated prosecutions or multiple punishments for the same offense. North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969), overruled in part by Alabama v. Smith , 490 U.S. 794, 109 S. Ct. 2201 (1989) ; State v. Ad dison , 973 S.W.2d 260, 267 (T enn. Crim. App. 1997

). As a component

of this constitutional protection, an accused has the right “to have his trial completed by a particular tribunal.” Wade v. Hunter , 336 U.S. 684, 689, 69

S. Ct. 834, 837 (1949) . Nevertheless, the protection is not absolute in the sense of guaranteeing

the enforcemen

t of the criminal la

ws in one proceeding. See Oregon v. Kennedy , 456 U.S. 667, 672, 102 S. Ct. 2083, 2087-88 (1982). That is, dou ble jeo pard y p r inciples do “not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding f ree from-11-

harmful governmentalor jud icial error.” United States v. J orn , 400 U.S. 470, 484, 91 S. Ct. 547, 556 (1971). Trial errors, in other words, are addressed through a defendant’s right to appeal, not the double jeopardy clause. See Beringer v. Sheahan , 934 F.2d110, 113 (7 th Cir.), cert. denied , 502 U.S. 106, 112 S. Ct. 641 (1991). That distinction, a

s we shall explain, is pivotal and dete rminative in nearly all cases involvin g defense-req uested mis trials bas ed on prosec utorial ov erreaching.

Considering the interests sought to be protec ted by the do uble jeopardy

clause, it logically follows that

if a defendan t requests a mistrial, he gives up the right to a verdict by the empaneled

jury. Double jeopardy, it is recog nized, does not bar a retrial in that situation. See United States v. Dinitz , 424 U.S. 600 , 96 S. Ct. 1075 (1976). An excepti on to this genera

l rule exists, howe ver, in the very limited context wherein prosecutorial misconduct supplies groun ds for a defense motion for mistrial, and the misconduct “was intended to provoke the defendant into moving for a mistrial.” Kennedy , 456 U.S. at 679, 102 S. Ct. at 2091.

The contours of this exception have been honed over time. In United States v. Di nitz , the Unite d States Supreme Court announced that the double jeopardy clause protects an ac cu se d “against governmental a

ctions inte

nded to pr ovoke mistrial requests and thereby to subject defendants

to the substantial burdens imposed by multiple prosecutions.” Dinitz , 424 U.S. at 611, 96 S. Ct. at 1081. The Sup reme Court then ad

ded, however, th

at retrials are

barred when “‘bad-faith cond uctby judge or prosecutor’ . . . threatens the ‘[h]arassment of an accused by succ essive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorabl

e opportunity to convict’ the defendant.” Id ., 96 S. Ct. at 1081 (citations omitted).

Sub seq uen tly, in Oregon v. Kennedy , the “bad-faith conduct” language in Dinitz was reworked so as to pare down the t ype of prosecutorial ov

erreaching th

at will bar a retr

ial. Henceforth, “[o]nly where the government

al conduct in ques

tion is intended to ‘goad’ the defendant into mov i ng for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in abortingthe first on his own motion.” Kennedy , 456 U.S. at 675, 102 S. Ct. at 2089. This standard “merely calls for the court to make a finding of f act.” Id . To emphasize th e point, the Supreme Court stated,

We do not by this opinion lay down a flat rule that where a defendant in a criminal tri al su ccessfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy a

gainst a second

trial. But we do hold that the circumstances under which such a defendant mayin voke the bar of double jeopardy in a second effort to try hi m are li mited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into mov

ing for a mistria

l. Id . at 678, 102 S. Ct. at 2091.-12- The import of Oregon v. Kennedy was aptly summarized in United States v. Jozwiak , 954 F.2d458 (7 th Cir.), cert. denied , 503 U.S. 950, 112 S. Ct. 1512 (1992). “ Kennedy distinguishes intentto improve the chance that the trier of fact will return a favorable decision from the forbidden intentto avoid a decision by the trier of fact.” Id

. at 460. Stated more bluntly, “The double jeopardy clause serves no

t to punish

prosecutorial mis

conduct; it simply

ensures that the defendant, not the government, gets to choose whether to go to verdict.” Beringer , 934 F.2d at 113.

Pursuant to Oregon v. Kennedy , the requisite pr osecutorial inten

t necessary

to trigger double jeopardy protections is quite specific. One of the bet ter discussio

ns regarding such intent appears in West v. State , 451 A.2d 1228 (Md. Ct. Spec. App. 1982).

When we speak of intentional misconduct, we are not speaking of a mere general intent to do the act. Absent the rare case of the Freudian slip or the muscular spasm, the prosecutor always intends (1) to ask the question , tha t turns out to have been erroneous; (2) to make the argument, that turns out to hav

e been inflammato

ry; and (3)

to introduce the evidence, that turns out to have been inadmissible. The double j eo pardy law contemplates some specific intent to achieve a desiredpurpose

above and beyond the

mere general intent to do the erroneous act. Id . at 1234. The West

opinion then identifies five possible “specific intents.” 1. thinking it to be c

orrect; 2. not thinking about

whether it is err

or or not (perhap

s lawyerly negligence) ; 3. being cavalie

rly indifferent to error under circumstances wher e one would reasonably

be expected to know

that there is prob

ably error (perhaps gross negligence); 4. knowing it to be error, but hoping to get away with it, thereby clinching a pro bable winner (deliberate “overkill” in a case the prosecutor has no desire to abort); 5. knowing it

to be error, but desiring to “sabotage” a probable loser either 1) by snatching

an unexpected vic

tory from pr

obable defeat if notcaught, or 2) by

get ting caught, th

ereby pro voking the mistria

l, averting the probable acquittal and living to fight a

gain ano the r day.-13-

Id

. at 1235. Under Oregon v. Kennedy , only the fif th example is sufficient to preclude a retrial. Id

. Recourse for misconduct und

er th e other fou r examples is achieved by way of a ppellate review leading to reversal of the con viction and a new trial. See id . Viewed in this fashion, relief on a claim of double jeopardy grounded in prosecutorial misconduct seldom will be appropriate.

The standard set for

th in Oregon v. Kennedyhas been adopted in Te nnessee and is controlling in this case. See State v. Tucker , 728 S.W.2d 27, 32 (Te nn. Crim. App. 1986) ; State v. Nixon , 669 S.W.2d 679, 681 (Te nn. Crim. App. 1983). On appellate review, the trial court’s findings relative to prosecutorialintent, like other factual findings, are afforded the weight of a jury verdict, a nd those findings are conc lusive on appeal u nless the evidenc

e clearly preponderates

against them. See Tucker , 728 S.W.2d at 32.

In the defendant’s case, the trial court issued a written order explaining why a mistrial was necessary. The order further stated that “themistake made by the Assistant District Attorney for the State was an innocent one, and that her

conduct was not int

ended to provoke the defendant into moving for a mistrial.” No supporting fa cts were mentione

d in the written ord

er, but while

the jury was deliberating during the defendant’s second trial, the trial court fleshed out its observations and reasoni ng in greater d etail, amo ng which appe ar the follo wing:

On the day

in question – this was Ms. Mosley’s first murder trial. She had not ever tri ed a j ury case and w hen she was assigned to my court las

ty ear and was bein

g trained by

Mr. Kitchen in this murder trial – Mr. Kitchenis the division leader – andhe sat in with her just as he is during the trial of the case this we ek. Took no participation in it other than maybe helping with objections. And he sat there. . . .

. . . So Ms. Aluk o, the n, on July the 7 th , started impeaching Ms. Payne with this statement and took a question out of context – which is in some ways a proper strategic cross-examination – and basically cut Ms. Payne off

as to an answer she gave in the question. Then, I watched, as sitting here, watched as Mr. Kitchen was expl aining to Ms. Mosley that she could use her statement, a prio r consistent statement, get

back up onredirect and rehabilitate. And he handedher a statement a

nd I saw him poin

ting. Ms. Mosl

ey, th en, got up and I had a copy of the statement that I entere d as Exhibit A that day – Ms. Mosley got up and started re ading, because Ms. Payne had been impeached

about whether or

not she actually

knew thi s person that

she knew as Milk, M-I-L-K. . . . Well, Ms. Mosley – Mr. Kitchen wanted Ms. Mosley to say, Do y

ou know the suspec

t? Answer: he lives in the neighborhood. But instead , Ms. Mosley continuedto read, “Question: Do you know the suspect?” “Answer: He lives in the neighborhood and he just

got o ut o f ja il. He’s alw ays-14- going around and robbing people.” Now as s oon as Ms. Mosley said, “Andhe just

got out of jail...” that got my attention. And I looked up, because I thought we were in trouble at that point. And as she started to read, “He’s always going ar ound and robbing people” Mr. Kitchen actually got out of his seat

and attempted to grab the statement away from her. If this had b een o n Law and Order or some kind of courtroom

show, it would have been comical because every now a nd then young prosecutors get in these kind of predicaments where there are things – where they

are told by the division leader, they’re told by the more experienced

person to do something and they do it and keep doing it. . . .
Ms. Mosley then, to my mind,with the look on her face when I said, I think we’re

going to have to –

Ms. Mosley ha

d no clue as to what had gone on a nd w as ab sol ute ly innoc ent of this. And it was ju st – it was an incident that was unfortunate but had absolute ly n o vi ndictive ness, no calculation, th ere was no plot to tr

y to abort thi

s trial because th

ings weren’t g

oing well. These findings arethorough and based on the trial court’s first-hand observations and impressions. They are c

learly sufficient to affirm the trial court’s ruling that a retrial was not barred by double jeopardy

principle s . The defense did not object to or disagree with the trial court’s account. The trial court and defense counse

l did quibble about ho

w many jury

trials Ms. Mosley had or had not handled before the defendant’s first trial, but there was no dispute – as the trial court

put it – that “with no offense to Ms. Mosley, [she was] low on the totem pole in the D.A.’s office

. ” Moreover, even if

she or the division leader was pursuing some impr oper tactical a

dvantage, doub

le jeopardy principles still would not foreclose a retrial unless the intent to provoke a mistrial could be shown. The record in this case does not contain any telltale signs that the state wanted to or needed to goad the defe

nse into requesti

ng a mist rial. The record demonstrates that, with the exception of proving the victim’s cause of death, at the time of the mistrial the state had presented a case that would su

pport a conviction. Nothing sugg ests that a neces sary wit

ness ha d failed to appear or had recanted or

that the state had somehow failed to produce evidence needed to support an element

of the charged offense. The record also does not disclose a pattern of prosec utorial error. Mary Payne’s testimony and credibility were, no doubt, problematic for the state, but the state had to have been awar

e going into the

first trial that the

defense would fe

ast on this witness

during cross examination.4 On the prejudice sca le, it i s diffi cult to say

whether the err or in this case or the one in Oregon v. Kennedy was

more harmful. In Oregon v. Kennedy , the t rial cou rt had f rustra ted the e ffort s of prose

cution counsel t

o elici t on redirect
examinat

ion why i

ts wit ness had f

iled, bu t not pur sued, a cr

iminal complaint

against the defe ndant. When t

hat li ne of inquiry failed, the prosecution settled on the following q uestions:

[Prosec utor] : Have y

ou ever done busi

ness w ith t he Kennedy

s? [Witness ]: No, I have not. [Prosec utor] : Is t

hat bec ause he

is a c rook?

456 U .S. at 669, 1 02 S. Ct. at 2 086. T he trial court the n granted K ennedy’s mo tion for a mistrial.

-15- By concluding that

double jeopardy

did not bar the def

endant’s r e trial, we are not winking at the improper and prejudicial events that occurred durin

g the defendan

t’s first trial. 4 The trial court quickly and

accurately sized up the situation as requiring that the case be mistried. Even if, however, the trial co urt had not declared a mi strial, an appeal to t his court f ollowing a conviction would have remedied that harmful error.

Concluding that

the evidenc e does not p reponderat e against th e trial cour t’s findin gs that the state was n

ot atte mpting to goad the defendant into seeking a mistrial, we affirm the trial court’s order permitting the retrial to proceed. b. Amendment of Charges after Retrial
In addition to his double jeopardy complaint, the defe ndan t also maintains that the state’s reindictment and retrial of him for first degree murder, following the mistrial, violated due processthrough vindictive prosecution and violated Criminal Procedure Rules 7 and 8(a) dealing with amendment of indictments and mandatory joinder.

We are at a loss to see how the defendant wasprejudiced by the state’s post-mistrial attempt to enter into a plea agreement with the defendant, even though it leverag ed the plea offer by a threat to indict and try the defendant for first degree murder, by

the state’s superseding indictment for first degree m

urder, or by

placing the def

endant o n tr ial on this later indictment. The alleged vindictiveness

resulted in no conviction of an offense greater than the offense originally charged, and the defendant did

not accept the offered plea agreement and thus is not aggr ieved by an involuntary guilty plea. In short, if the state were shown to be vindictive or if the trial court erred in putting the5 We b elieve the ap plicable m easure of vind ictiveness is set forth in Bordenkircher , even though in that case

the High Court revi

ewed prosecut

orial ch arge inc reases t hat were made before any trial occurred. In Blackledge , we note that the court revi

ewed prosecutorial charge increases that occurred aft er a lower court trial and bef ore a de novo retrial on appeal, a procedural pattern somewhat simil ar to the presen

t case. The Blackledge court held that “

due process

of law requires th at [ the] potentia l for vindictivene ss must not ente r into North Carolina’s two -tiered [, de novo -retrial] appellate process.” Blackledge , 417 U .S. at 28, 94 S. Ct. at 2103. The prosecutor’s action in obtaining a f elony indictment in midstream between the lower-court bench trial and the appeal for de novo retrial, thereby i ncreasing the charge from a

misdeme anor to a felo ny, violated p rinciples of du e process . Id . at 28-29, 9 4 S. Ct. at 21 03. We need not be concerne d in the prese nt case whether the superseding indict ment obtained between a mistrial and a retrial more closely resembles the Borderkircher situati on or the Blackledge

situation. Neither case is based u pon double jeopa

rdy principles, and accordingly, we conclude that

the pres ence or

absence of a precedin

g, nulli fied trial is not det

erminative. -16- defendant to trial on the superseding ind ictment, we would

be constrained to conclude that any errors wereharmless. Nevertheless, the claims of error raise interesting and rarely addressed points of law, and we will brief

ly consider

them. Regardingvindictive prosecution, we view this case to be cont rolle d by Bordenkircher

v. Hayes , 434 U.S. 357, 98 S. Ct. 663 (1978). The prosecutor in that case offered a plea agreement and advised the defendant that if he did not pl ead g uilty, the state would seek an indictmentunder the Kentucky Habitual Criminal Act; the Act would subject the defen dant to a mandat orylife sent ence due to two prior felony convictions. The defendant rejec ted the plea agreement

andwas subsequently indicted and convicted under the Act. I n that situation, the United States Supreme Court ruled that a presumption of vindictiven ess does not arise, and hence due processis not violated, when a prosecutor thereafter follows through with a threat made during plea negotiations to bring additional charges against a defendant if tha t de fend ant refu ses to p lea d gui lty. Id . at 364, 98 S. Ct. at 668-69. Cf

. Blackledge v. Pe

rry , 417 U.S. 26, 94 S. Ct. 2098 (1974). The state in this case alerted the defense after the mistrial that it would be seeking an indictmentfor

first degree murder. The state then offered, as it had done before, to allow the defendant to plead guil

ty to second degree murder with an agr eed-upon sentence. The defendant declinedthe state’s offer, and the state sought and obtained a two-c ount indictment cha

rging first degree premeditated murder and felony murder. Moreover, during a separate hearing, the assistant districtattorney general who tried the case testified about the circumstances leading to the subsequent

indictment. At the ti

me the original c

harge was bro

ught, the state did not

know about the robbery aspect of the homicide. It was not until two wee ks before trialand while

interviewing Mary Payne that the state discovered this information. Based onprevious experien ce, the state did not believe that the trial court would continue the defendant’s trial, so additional charges were not submitted to a grand jury. After the mistrial and after the defe ndant rejected the state’ s renewed overture of a plea bargain, new charges were soug ht and obtained. No presumption of prosecutorial vindictiveness

arises from these

facts, and no ac

tual vindictivene

ss has b e en shown. See State v. Phip ps , 959 S.W.2d 538, 546 (Tenn. 1997) (a rebuttable presumption of prosecutorial vindictivenes s arises when there is “realistic likelihood” of prosecutorial retaliation). 5

Nor do we find that the retrial upon the superseding indictment for first degree mur de r violatedTennessee Rules o f Criminal Procedu

re 7 or 8. Rule 7 limit

s the state’s powe r to amend6 The determination t hat a retrial a fter mi stria l is not barred by doubl

e jeopardy pr

incipl es may not

provide double jeopardy clearance to effectively recharge t he defendant with a greater offens e via a superseding i ndictment th

at becomes the basi s for

retrial. Even though

we have rej ected th

e defendant’s due process and ru le-base d attack s upon the use of the supe rseding indic tment, in light of State v. Ha rris , 33 S.W.3d 767 (T enn. 2000), we se e the poss

ibili ty of error, based upon double jeopardy principles , in the trial court’s use of the superseding indictment as a basis for retrial. Although we will

not revi ew the mat

ter for plain error f

or the reasons s

hown below, we believe the lower court and ot

her trial cour

ts could profi

t from being awar

e of the iss

ue.
Genera lly, double jeopardy principles do not bar a retrial following a

mistrial which resul

ts from jury

impasse. Arizona v. Washingt

on , 434 U .S. 497, 5 09, 98 S . Ct. 8 24 (1978) . As pointed out in part (a) o f this section VI o f this opinion, generally retrial also is not barred after a mistri al that emanates from trial error. Except in those situati ons when the prosec ution com mits the error in o rder to goad the def endant i nto seeki ng the mi stria

l, the defendant ’s reque st for a mistrial is a wai

ver of his or her right t

o have the trier

of fact resolve the case, and double jeopardy principles pose no bar to retrial. Lee v. United States , 43 2 U.S. 30, 31- 34, 97 S. Ct.2141, 2146-47 (1977) . Given t hat ret rial i s not generally ba rred in these situa tions, is the state free to recharge t he defendant via a supersedi ng indictment

that it uses as the basis for r etrial?
A superseding i

ndictment is

“an indict

ment obtained wit

hout the dismissal of a prior indict ment.” Harris , 33 (continued ...) -17- a charging instrument when jeopardy has attache d or the amendment

would allege an additional or different offense or would prejudice sub stantial rights of the defendant. Tenn. R. Crim. P. 7(b). However, in the present case, no actual amendment of the indictment occ

urred. Further

more, Rule 7 ampli fies the state con stitutional provisio

n which requires

that criminal cha

rges be broug

ht b y indictment,presentment or impeachment. Ten

n. Const. art. 1, § 14; Tenn. R. Crim. P. 7 Advisory C omm’n Comments. The superseding indictment was rendered by the gra nd jury. Thus, w e conclude that neither the spirit nor the letter of Rule 7 was violated.

Rule8 mandate

s the joind

er of “[t ]wo or more offenses” in the same charging instrumentwhen they are “based upon the same conduct or arise from the same criminal episode and if such offenses are known to the appropriate prosecuting official” at the time of obtaining the charginginstrument. Unless the offenses are severed pursua nt to Rule 14, trials o f “multiple offenses falling within this subsection” are barred. Id . Wedo not believe that Rule 8 is implicated in the current cas

e, because the s

tate did not attempt

to allege “multip

le” offenses. I

t alleged a sing

le offense of homicide. The first indictment merely alleged a lesser-included of fense of the gr

eatest offense alleged in the second indictment. The state did not attempt to allege a second offense, as would have been the ca

se, for instance

, had it attempted to

allege the comm

iss ion of robbery, the predicate offense that was suggested in the superseding indictment ’s char ge of first degree felony murder. We see no mandatory joinder problem in the present case. See State v. King , 717 S.W.2d 306, 308 (Tenn. Crim. App. 1986) (Rule 8 violation recognized when offense alleged in succeeding indictmentwas based uponthe same conduct described in the first indictment, but the later-charged offense was not a lesser-included offense of the offense charg ed in the first indictment.)

Thus, the defendant’s claims of infirmity based upon the reindictment and

retrial on that indictment are rejected. 66 (...continue d) S.W.3d 771. The state enjoys the discret

ion to seek a su

perseding indi

ctment when

“there has been no jeopardy on the firstindictment. ” Id . (emphasis added). Although the state may no t use supersed ing indictmen ts to “harass or i ntimidate” a defendan t, it “may obtai n a superseding i

ndictment at

any time prior to trial

without dismissing t

he pending indictment and may then sel

ect the indi

ctment under whi

ch to proceed to tri

al.” Id . (emphasis added).
Based upon the language in Harris , the power o f the state to supersede the indi ctment af

ter a mis trial turns u pon the meaning of the phras es “there has been no j eopardy” and “ prior to t

rial. ” After a

mistri al, has jeopardy al

ready attached because it at tached in th e fir st tr ial? Or, has the sl

ate been swept clean by t he declaration of mistri al, such t hat forpur poses of superseding indictments, t he period between the mistrial and the retri al is a time when there is “no jeopardy ,” a t

ime “pr ior t o tri al”?
Few cas es have an alyzed the recharging issue as a matter of d ouble jeopard y, and this is probably because Tennessee Rule of Criminal Procedure 7 poses a significant obstacle to t he state’s right

to amend the charging instrument once jeopardy attache s. Tenn . R. Crim. P. 7 (b); see Advisory C omm’n C ommen ts (the rule is a reflectio n of state constitut ional concerns a bout the gra nd jury’s app roval of cha rges and no t per se a reflectio n of double je opardy principles). As such, Rule 7, the most convenient inst rument f or battlin

g prosecution ef

forts to re

define the ch

arged offense after the attachme nt of jeopa rdy, has largely p reempted the field. Som e courts hav e had the o pportunity to address the doub le jeopard y aspects of m idstream rec harging but g enerally have declined to do so. Fo r in st ance, in Seiber v. State , 542 S.W.2d 381 (Tenn. Cri m. App. 1976), a bench tr ial of a misdemeanor in gene ral sessi ons court was aborted after the attachment o f jeopard y when the jud ge invoked an erstwhile provision that allowed bind ing the case to the grand ju ry when it app eared that a fine in excess of $5 0 would b e appro priate. Id . at 383-84. The court held t hat double jeopardy

principles barred the r etrial in criminal

court after

grand jur

y indic tment. The court,

however, did not discuss the propr iety of a post-attac hment upg rading of the c harge. Id . at 385. See Lee v. United States , 432 U. S. 26, 28-31, 97 S. Ct. 2141,

2144-46 (1977) (disrupt ion of t rial af ter att achment of

jeopardy s

imilar to Seiber

analyzed as a mistrial prob lem).

On the other hand, in United S tate v. Cerilli , 558 F.2d 697 (3d Ci r. 1977), a

mistri al was dec

lared upo n th e defendan t’s request after a j uror beca me ill and was hospitalized

. Id. at 698. Before retrial , the government obtained a superseding i

ndictment whi

ch added “six additi

onal substant

ive counts. ” Id . at 699. O n appea l, the court held that the defendan t’s consent t

o the mistrial

“remove[d] any [dou

ble jeopardy] barrier to a re prosecutio n, whether under t he original indictment

or under a new one .” Id . at 702 (emphasis added). In United Stat es v. Corona , 804 F.2d 1568 (11 th Cir. 1986), a mistrial resulted fro m a hung jur y. Id . at 1569. The government procured a

superceding indi

ctment which expanded some of the c harges. Id . The Corona co urt upheld th e lower co urt’s denial of the defendan t’s motion to dismiss the superceding indictment. The court hel d that r etrial on the su

perceding indict

ment was n

ot barred b y double jeopardy principles. Id . at

1570. Specifically, it f ound no constitutional b ar to prose cuting the supe rceding ind ictment, even thoug h it acknowle dged that je opardy h ad attached in, and contin ued beyo nd, the first trial. Id

.

Other cases have sp oken of the “c lean slate” theo ry, by w hich retri al is permit

ted after a r

eversal on appeal because the conviction was “wholly nul lified and the slate

wiped clean.” State v. Ha rris , 919 S.W.2d 323, 328 (Tenn. 1996) (quoting North Carolina v. Pearce , 395 U .S. 711, 7 21, 89 S . Ct. 2072 , 2078 (1 969)). See State v. Camp bell , 641 S.W.2d 890, 89 3 (Tenn . 1982) (s tate given a clea n slate to repro secute defen dant in the aft ermath o f trial court determining, after jeopardy had attached, t hat the warrant on which the trial was based w as void). These cases and Cerilli support a n understan ding of Harris that jeopar dy someh ow does not survive the declaration of a mistrial.

The “there has been

no jeopardy” and “prior to trial ” l anguage in Harris , however, a ppears p roblema tic when one considers Richardson v. United States , 468 U.S. 317,104 S C t. 3081 (1 984), in wh ich the High C ourt held that jeopardy, which attached for the purposes of the Fift h Amend ment dou ble jeopardy provision when the jury was selected and sworn, “cont

inued” when the j ury fail ed to reach a verdict and the case was m istried. Id . at 326, 10 4 S. Ct. (continued ...) -18-6 (...continue d) at 3086. If Richardson applies to a mis trial base

d on trial er

ror and not just

a hung jury,

jeopardy attac

hed whe n Johnson ’s first jury was s worn, and that jeo pardy “co ntinued” thro ughout his sec ond trial. Arg uably, this continu ing of jeopardy means tha

t, for purposes of

utili zing a su perseding

indict ment, t he tardy bell had a

lready r ung when je

opardy attached in the first trial.

We need not determine which view of the attachment of jeopardy controlled the reindictment in t he present case. In part (a)of thi s secti on VI, the de

fendant used double jeopardy pri nciples to chall enge his being ret

ried, b ut not to challenge the use of the s uperseding indictment. In thi s part, he challenges the use of the supersedin g indictment, but not on double j eopardy grou nds . Thus, any double jeopardy error in proceeding on the superseding indictment is a ques

tion of plain erro r. Any doub le jeopardy error in proceeding on the superseding indictment, however, was harmless beyond a reasonable doubt. The jury acquitted the defendan t of first degree m urder and convicted him of second degree murde

r, the highest

grade of homi

cide charged in the first i ndictment. Because any error was harmless, it would no t “affect the substan tial rights” of the de fendant, and we would d ecline to notic e it as plain erro r. See Tenn. R. Crim. P . 52(b).

7 That statute, sinc e repealed , provided in pertinent pa rt:

(b)(1) In all contest

ed criminal cas

es, except f

or capital cri

mes which are governed by the procedures contained in §§ 39-13-204 and 39-13 -205, upon the motion of
either party, filed with the c ourt prior to the selection o f the jury, the cou rt shall charge the possible penalt ies for th e offense char ged and all les ser included
offenses.

( 2)(A)(i) When a charge as to possible p enalties has be en requeste d pursuan t t o subdivi sion (b)(1), the ju dge shall also include in the instr uctions f or the jury to weigh and con sider t he meaning of a sentence o f imprisonment for the offense charged and any lesse r included o ffenses. Such instru cti on shall in clude an

approx imate calculation o f the minimum number o f years a perso n sentenced to (continued ...) -19- VII. Jury Instruct

ions
The de fendant’s c laim that t he jury should not have bee n instruct ed rega rdin g sentencing matters, pursuant to Code section 40-35-201(b) (repealed 1998), is easily settled. That statute had required

trial courts to instruct juries regarding parole and release eligibility when a jury ins tru cti on o n th e sen ten cin g ran ge wa s re que ste d by e ith er pa rty. 77 (...continue d) imprisonment for the

offens e charged an

d lesser include d offenses must serve
before reaching such person's earliest release eligibility date. Such calcu lation shall
include such factors

as the release eligib ility percentag e establ ished by § 40-35-501,
maximum and minimum sentence reduction credits authorized by § 41-21-236 and the governor's power to reduce prison overcrowding.

-20- Alth oug h at one time a sharp split of authority existed concerning whether section 40- 35-201(b), as applied, violated due process, the supr eme court has set

tled the matter. I

ts rulings in State v. King , 973 S.W.2d 586 (Tenn. 1998), and State v. Nichols , 24 S.W.3d 297 (Tenn. 2000), are dispositive; in those cases the supreme court determined that instructing juries about sentencing and release eligibility percentages, either for the jury ’s “information only” or for the jury to “weigh and consider,” does not result in constitutional error.

In connection with this issue, the defen dant als o argues in vague terms that the sentencing and release eli gibility fig

ures supplied to the

jury were

prejudicially

inaccur ate. He merely asserts that impro

per mi nimu m and maximum sentences and low parole eligibility figures wereused. The jury instructions given by the trial court have not been

transcribed and are not before us; therefore, con

sideration of the

defendant’s ass

ertion has been w

aived. It is

the appellant’s burden to prepare a rec

ord on appeal tha

t presents a complete and accurate account of what transpired in the trial court with respec

t to the issue on appe

al. Tenn. R. App. P.

24(b). The failure to do s o results i n a wai ver of such issues. See , e.g., Thompson v State , 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). For the foreg oing reasons, w

e reject this cla

im. VIII. Witness Impe

achment
In his next issue, the defendant claims that the trial cour t committed error of constitutional dimension by refusing to permit h

im to cross examine state’s witness Mary Payne about whether the same assistant district attorney general who was pr o secuting his case also had been the affiant on a probation revocation warrant involving the witness, which later was dismissed. The defendant argues that his inability to show who the prosecu tor was on the witness’s probation revocationwarrant denied him the ability to have the jury c onsider the entire picture concerning any8 The state argues on appeal that the defendant withdrew and abandoned his request to question the witness along these lines such that the issue has been waived. We are not persuaded that the record clearly shows a waiver. -21- possible deal that may have occurred between the prosecutor and the witness. The defendant thus reasons that his c

onstitutional confr

ontation rights we

re violated entitl

ing him to a new tri

al. 8
It is, of course, fundamental that an accused is entitled to show the jury tha

t a witness has a bias, prejudice, or motive for testifying falsely . One way this showing

can be made is to

offer proof of a deal between the witness and the prosecution such that the witness would naturally be inclinedto testify in a way favoring the state’s case. See, e.g. , State v. Smith , 893 S.W.2d 908, 924 (Tenn. 1994); State v. Norris , 684 S.W.2d 650, 654 (Tenn. Crim. App. 1984). We have no quarrel with this general principle or with constitutionalconfrontation interests that are advanced th rough such cross examination. See ge nerally Delawar e v. Van Arsdall , 475 U.S. 673, 106 S. Ct. 1431 (1986) (undue restriction of right to explore on cros s examination promise s of leniency

to prosecution witness may violate a defendant’s right to confrontation).

Even so, we fail to see how theidentity of the prosecutor who swore out the probation revocationwarrant might relate to any alleged deal between the witness and the prosecutor handing the defendant’s case. In the defendant’s case, the identity of the assistant district attorney general who dismissed the probation revocationwarrant, and not the one who swore

out the warrant,

is the telling point – if there is one. Any deal wit h the witness, in

other words, would not have concerned the taking out of the warrant but, instead, the reason that the warrant was dismissed, or, at the very least, the witness’s belief why the warrant was dismissed. The witness in this case was asked by the defense and, in response, denied that any deal existed; the identity of the a ffiant on the warrant

would nothave contradic

ted that testimony

. Moreover, the a

ssistant dist

rict attorney general on the defendant’s case stated, without contradiction, that she did not know why the probation revocation warrant was d ismissed and did not participat e in the hear ing.

Without more, we are unable to grasp the logic of the defendant’s argument, and we affirm th e trial cour t’s ruling. IX. Sentencing

In his final issue, the

defendant compla

ins that his37-year se

ntence is excessive and shoul d be reduced. We are unable to review

this issue because

the record befo

re us is inadequat

e for the task. When there is a challenge to the length, range, or manner of service of a s

entence, it is the du ty of t

his court to conduct a de novo review of the record with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1 997). This presumption is "co nd itioned upon the affirmative showing in the record that the trial court considered

the sentencing

principles and al

l relevant facts

and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). "The burden of showing that the sentence is improper is upon the-22-

appellant." Id. In the event the record fails to demonstrate the req uired consider ation by the trial court, revi ew o f th e sen ten ce i s pu rel y de novo

. Id. If appellate review reflects that th

e trial court properly considered all relevant factors and that its findings of fact are adequately supported by the record, this court

must affirm the sentence, even if our independent judgment on the question might differ. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The judgment

form in thi s case reflec ts that th e defendant w as sentence d as a Range II multiple offender

to 37 years i

n the Department o

f Correction. Th is is a lawful sentence for a Range II offender convicted

of second degree murder, a Class A felony. The defendant perceives his sentence to be excessive, and he asks that it be reduced because the trial court improp erly weighed enhan

cement and mitig

ating factors. We are unable to review the defendant’s claim because the sentencing hea ring was nottranscribed and

is not before us to review. That being the situation, the court must presume that the sentence imposed

by the trial c

ourt is proper, an

d the court is

bound by the determination of the trial court. The appellant

has a well-settled obligation to prepare and furnish a record that includes those proceedings relevant to the issue being appealed; otherwise the issue has waived. See State v. Gibson, 973 S.W.2d 231 , 244 (Tenn. Crim. A pp. 1997); State v. Miller , 737 S.W .2d 5 56, 558 (Tenn. Crim. App. 1 987); State v. Hoosier , 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982).

The defendant’s failure to present us with an adequate record precludes review of this issue, and we aff

irm the sentence

imposed by the

trial court. Conclusion The defendant wag

ed an aggre

ssive defense in t

his c a se – one that meani ngfully subjectedthe prosecut

ion’s cas e to the cr ucible of adversa rial testi ng. We are unpersuaded of error in the proceeding

s below, and we the

refore affirm

the judgment and

sentence of the t

rial court.

__________________________________________ JAMES CURWOOD WITT, JR., JUDGE