### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Novem ber 5, 2002

Session
STATE OF TENNESSEE v. KEVIN L. LAWRENCE Direct Appeal from the Criminal Court for Shelby County

No. 99-12786 Chris Craft, Judge

No. W2001-02638-CCA-R3-CD - Filed October 9, 2003

A Shelby County ju ry convi cted the Defendant of first degr ee felony murder, and the trial court sentenced the Defendant to imprisonment for life with the possibility of parole. The Defendant now appeals , contending the following: (1) that the trial court er red whenit denied his motion to suppre ss his statement to police; (2) that the trial court erred when it denied his motion for mistrial based upon a witness’s non-responsive statement; (3) that the trial court er red in pe rmitting the prosecution to assert matters not in

evidenc e during

closing argume nts; and (4) that the

trial cou rt committed plain erro r by inco rrectly instruc ting the jury with re spect to the culpable mental state of “knowingly .” Finding no error , we aff

irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.
William D. Masse

y a nd C. Micha

el Robbins, Memp his, Ten nessee (on appeal), and William D. Massey and Lorna McCluskey , Memphis, Tennessee (at trial), for the appellant, Ke vin L. La wrence.
Paul G. Summers, Attorney Gene ral and Reporter; Michael Moo re, Soli citor General; Braden H. B oucek, Assistant Attorney Gene ral; William L. Gibbons, District Attorney General; Jen nife r N ichols and Phyllis Gardner, Assistant District Attorney s General, for the appellee, State o f Tennessee.
OPINION I. Facts This case arises from a robbery and killing of

the victim, Rodney

Foster, on December 28, 1998. In c onnectio n with this k illing, th e Defe ndant, Ke

vin La wrence , alo ng wit

h two co-1 To by B ailey was tried jo intly with the D efend ant and found not guilty b y the jury.
2 Th e trial co urt gran ted C hristop her La wson ’s motio n to sev er and he wa s tried se para tely. -2- defenda nts, Toby Ba

iley 1 and Christopher Lawson, 2 was indic ted on charges of first deg ree premeditated

murder a nd murder

committed

during t he commiss ion of a f

elony . A Shelby

County jury found him guilty of murder committed duri ng the commission of a felony and second degree murder, as a lesser-included offense of first degree

premeditated murder. The trial court merged the seconddegree murder conviction with the fe lony murder conviction and sentenced the Defendan t to imprisonment for life with the possibility of parole. The De fendant now appeals.
Willie E velyn Fo ster, the victim’s mother, testified that on the evening of Dece mber 28, 1998, she was at her ho me, 3508 B oxdale, Ap artment 3 in the Woodd ale Condo minium comp lex. Also present

in the apartment

were the following persons: the victim, Rodney Foster; his girlfriend, Tiffa ny Butts; Willie Foster’s daughter, Kimberly Foster; Kimberly F

oster’s two minor children; an d the victim’s friend, Marcus Lee . Willie Foster testified that between seven o’clock and eight o’clock in the even

in g on December 2 8th she was in her room in the back of the apartment with her two grandchildren

talking to her sister on the phone. Willie Foster stated that suddenly she heard a shot and some “tumbling .” Willie F oster tes tified tha

t a man the

n came in to the bedroom with a gun and told her to sta y in the bedroom. She stated that the intruders asked her “Where the money at? Where the weed at?” and she resp onded tha t she didn’ t know wha

t they were ta lking ab out. Willie

Foster testified that the in

truder le ft th e room briefly a

nd, when he returned, he brought Kimber ly Foster and Tiffany B utts back into the room. According to Willie Foster, the intruder had a gun and repeated his inquiry

as to the location of the money and weed. The intruder held the occupants of the bedroom a

t gun poin t. Willie Foster testified that a few minutes later the intruder lef t the room and Kimberly

Foster l eft to look

for her brother , Ro dneyFoster, whom she found lay ing on the kitchen floor bleeding. Willie Foster then said t hat s he went to

call 911, but befor

e she cou ld complete the call, Marcus L ee entered the kitchen with police.
Willie Foster testified that the intruder who came into her bedr oom wore a black leather

coat that had a hood atta ched whi ch came

down to his eyebrows, but that she did not look at him “all the wa y” because shefeared that he would shoot her. Accordingly, Willie Foster could not identify the intruder who was in her bedroom that night. On cross-examination, Willie Foster testified that, at the police station later that evening, she saw a black “skull cap” underneath a c hair in which Marcus Lee was sitting. Willie Foster al so admitted that her son, the victim, regularly sold marijuana out of her home. Kimberly Foster also testified as to the events that occurred on the e vening of December 28, 1998. She testified that on the nigh t of the victim’s dea

th she was living with her mother and was at home with her children, her mot her, the vic tim, the victim’s girlfriend, Tiffany Butts, and the victim’s friend, Marcus Lee . Kimberly Foster testified that on the evening of December 28th, she was in the “front” r oom wa tchin g t elevision with the victim, Tiffany B utts and Marcus Lee whe n there was a knock at the door. Lee answered the do or and one ma le int ruder, who wa s weari ng a-3-

mask, grabbed the

victim and

went towa

rd the kitc

hen. The other ma n, who had

a gun, t old her to get up and go in the other room with her mother and children. The man with the gun then took her into the other

room while asking her, “Where the money ? Where the weed?” and pointing the gun at her. Kimb erly

Foster testified that she told the intruder that she had no money and no weed and, shortly thereafter, she heard three or four gunshots. The intruders left and, after waiting for a minute, Kimberly Foster crawled up front into the kitchen and saw the victim laying

on the floor with a

bullet wound in his back. Kimberly F oster testifiedthat at first the victim was able to respond to her and told her that he loved her. She testified that a few minutes later, Ma rcus Lee re

t urned with the police, w ho told her

to go into

the back room.
Ki mberly Foster t estified that the in truder w ho held he r in her mother’s b edroom w as wearin g dark pants and a black leather coat with a hood on it, which was pulled down to his eyebr ows. The hood fell back off the intruder’s face and Kimberl y Fo ster described him as “brown skinned, low haircut [and] he had like an oval egg-shaped he ad, with a big kind of nos e. And about standing about five-eight, something like that.” Kimberly Foster testified that she had seen this man a c ouple o f times prior to the shooting, and she identified him in the courtroom as the co-defend ant Tob y Ba il ey. She also testified that she never saw the intruder who went into the kitchen with her brother, and when the

police c ame back to the house with the Defendant, she could not identify him as being in the apartment

earlier that evening. On cross-e xamination, Kimberly Foster testified that she saw a black “skull cap” on the intruder that shot her brother. Tiffany Butts, the victim’s girlfriend at the timeof his murd

er, testi fied tha

t she was in Kimberly Foster’s room

with Marcus Lee and the victim on the night of December 28, 1998, when she heard a knock

at the door. She testifie d that the victim ans wered th

e door and she saw

the victim fallback as two male intruders rushed into the house. But

ts testified that she

then hid in

a closet in Kimberly Fos ter’s room whi le Kimberly Foste r paced the room. According to B utts, one of the intruders entered Kimberly Foster’s room with a

gun and had a hoo d covering par

t of his face. B utts identified that

intruder as Toby B ailey, a c o-defendant. Thereafter, Butts identified the Defe ndant as the other intruder and testified that the Defendant

had on a puffy

black coat. After the intruder entered the room in which Butts was hiding , he said w ords to the effec t of “who ever is in

here co me out,” and Butts ca me out of th

e closet into the hall. Butts testified that the intruder then pointed a gun at her head

while she

crawle d into Willie F

oster’s r oom.
Butts testified that the Def endant w as i n the kitchen with the victim when the robbery occurred and the vi ctim was s hot. She a lso testif ied that she heard about

three or four shots, and after she heard the shots, Toby B ailey looked into the living room, looked ba ck into the bedroom and then fled. B utts testifie d that af ter the in truders left, Kimb erly

Foster w ent to see

the victim , and then Butts followed. The y f

ound the victim lay

ing on the

kitchen f loor with g

unshot wou

nds. Butt s testified she saw the Defendant later that evening a nd recognized

him as the same person that was in the apartment with the victim earlier because she recognized his braids and clothes.
On cros s-examination, Butts was questioned regarding a photo line-up in which she identifie d the co-defendant. When asked “So y our testimony then, . . . is that until [the pol ice off icer] told you-4-

[the co-def

endant’ s] name

you didn’t have a

name; is that right?” Butts responded, “No. I a lready heard it through the streets what his name was because every body knew they

did it because they w as riding around.” The Defendant objected a nd requested a mistrial. After ordering the jury out of the court room, the

trial cou rt, finding her in

contempt of court , sentenc ed Butts to five days in jail, and then suspended the sentence and placed her on probation until after the trial. Thereafter, the court denied th e motion fo

r mistrial and instr ucted the jury that:
From time to time this witness has said things, and I heard from

so and so th at this, that and the ot

her. Well, those people aren’t here, if they are even known. They

are notunder oath. And people will say all kinds of stuff. . . . A nd so things that other people sa y are definite ly n ot proof. So we have a rule c alled he arsay , that if somebody

else says something

that is not under oath, you’re not to consider

it at all.
The trial court told the jury that he ha d explained this to Butts and that, while she was emotional, she “can’t do that.”
Butts also testified on cross-examination that she was smoking marijuana on the evening of the murder. Further, she testified that while in the house she could not provide the police officers witha description of the Defendant, but later, when she saw him in the police car outside the home, she recognized him as the intruder who went with the victim to the kitchen.
Marcus Lee testified that on Dece mber 28, 1 998, he was at the victim’s home and was “smoking weed all day .” Lee confirmed that on the evening of the murder, Willie Foster was in her roomwith her grandchildren and Tiffa ny Butts and Kimberly

Foster were in Kimberly

Foster’s room watching television. Lee testified that he a nd the vic tim were

in the livin g room w

hen ther e was a knock at the door. Lee stated that the victim answered

the door and two men “busted” into the living room. Lee

testifie d that the

victim and the first intruder stumbled and fell over each other while the secondintruder went

to the bac k room. L

ee testif ied that th e first in truder, who was w ith the victim , wore dark colored clothes and a gra y and black

ski mask and had a gun. Lee testified that the victim and the intruder

“made their way

to the kitchen” and that Lee w as standing in the doorway between the living room and the kitchen. Lee testified that he heard a gunshot as the intrud er and th e victim were tumbling in the kitchen.
Lee explained that after

hearing the gunshot, he ran out of the door of the apartment and saw a policema n two buildings down . Lee state d that he ap proached the policeman and told him that there were so me “guy s inthe house robbing [his] friend.” Another witness at that time confirmed that two men ran “that way”

and the policeman went to chase the intruders. When L ee returne d to the apartment with the police, the victim was on the floor and appeared to be dead. L ee testified that when he first returne d, one of the intruders was still in the kitchen with the victim and that, after seeing the intrud

er, he le ft aga in to find the police. Lee testified that a fter he found a police officer, the two returned to the apartment and found the victim still on the floor su rr ou nd ed by h is fa mi ly.-5-

Lee stated

that, thereafter, the

police put him in the back of a police car and broug ht over a man, who was w earing

the same

clothes a

nd coat as the i ntruder , but L ee did not

reveal this information immediate

ly to police. L

ee late r learned that t

h e man that he saw from the police car was the Defendant. Le e did not immediately identify the Defendant

as the same person that hesaw the night that the v ictim wa s killed, but he later told police that the Defendant was the man who killed the victim. Lee also testified that he identified the De fendant in a photo line up.
Officer Eric Jenso n, an off

icer wit h the Memphis Police

Departm ent, testi fied th at on December

28, 1998, h

e was at t he Woodda

le Condomin

iums at app

roximately

eight o’clock

in the even i ng in respon se to a 9- 1-1 hang -up call . Office r Jenson wa s the firs t office r on the sc ene in response to the 9-1-1 calland pulled up his patrol car to the address from which the ca ll had come. The officer testified that, when he got out of his patrol ca r, he heard two gunshots from a different apartment in the compl ex. The off icer testified that he then saw an individual running from the complex and that, seconds l ater, hi s partner, Officer Ladimer Howell, arrived in a separate patrol ca r. Officer Jenson testified that he tol d Offic er Howell that he had just heard gunshots, and Off icer Howell asked Officer Jenson if he had seen the individual running. Of

ficer Jenson testified that Officer Howell then pursued the individual that was running

. Officer Jenson testi fied tha

t he hear d the polic e dispatc

her state that she r eceive d a 9-1-1 call for “shots firedwhere one person had been shot” and g ave the address as 3508 Boxdale, Number 3, which was in the direction from which the officer hea rd the gunshots. The officer stated that he then proceeded to the given addre ss and was approached by three men who were

yelling (one

of whom the officer later learned was Ma rcus Lee), a

nd the o fficer drew his weapon for his safe ty. Upon calming the men down, the officer learned that someone ha d j ust been shot and proceeded to the apartment, whereupon he found the victim lay ing face down and in extremely critical condition.
Officer Jenson testified that later he went to wherethe patrol cars were parked and saw that the man that he had seen running earlier , who he identifie d as the D efenda nt, was in the back of a patrol car. The officer testified that the Def endant asked him if he “was the one I saw at the end

of the dr iv e w he n I w as ru nn in g b y” to which the officer responded “y es.” The officer testified that he then retraced the path of the indi vidu al running and found a “small black revolver pistol.” The office r identif ied the De

fendant as the ma

n that he s aw runni ng that n ight.
Officer Ladimer Howe

ll , also with the Memphis Police Department, testified that on December

28, 1998, he rece

ived a ca ll to an ap artment in Wooddale Condominium s in respo nse to a 9-1-1 hang-up ca

ll. Of ficer Howell testified similarly about the conversation that occurred betwee n the two officers upon arriving at the apa rtment. The officer testified that he saw a man, whom he later learned was the Defendant, come out of a building and runpast his car. The officer stated that since Officer Jenson heard the gun shots, Officer Jenson went to investigate the gunshots and that Office r Ho well cha sed the D efenda nt since he “had a

better lo ok at him.”The offi cer dro ve his patrol car in pursuit of the Defendant, and while pursuing the Def endant, the officer saw the Defendant

“hop” a four-foot tall gate at the e nd of a fence. The officer testified that some children who were standing near the gate op ened it f

or the of ficer to pursue th e Defe ndant, so t

he offic er did-6-

notha ve to slow dow n. The officer stated that he turned on his headlig hts and then saw the Defendant

take off a dark colored jacket and throw it onto a pile of garbage. The D efendant slowed to a walk, and the officer pointed his spotlight on the Defe ndant and told him to ge t d own on the ground, which he did.
Officer Howell testified that

when he was putting handcuffs on the Def endant, he noticed that the Def endan t had gr ay duct tape on his fingertips. The officer testified that he then put the Defendant

in the back of

his patrol car and retrieved the jacket from on top of the pile of garbage

. The office

r found it odd that the Defe

ndant re moved his j acket because the weather was quite col d and the Defendant had short sleeves on under his jacket. After putting the Defendant in the squad car, the of ficer h eard a “w oundi ng” call over his radio and returned to the apartment complex where he first saw the Defendant running. The officer stated that later, the Defe ndant was removed from the police car for a more intense searc h. During this search, the

officer noticed that the duct tape was no longer on the Defendant ’s fing ers but wa s stuffed in the crack of the seat in his car. Officer Howell testified that when he returned to the scene of the murde r, he and Officer Jensontook a wa lk and retraced the steps where they saw the De

fendant run. The officer testified that they found a gun and later found a mask.
Officer Mark Rewalt, also with the Memphis Police Department, testified about the crime scene and the revolver that was found. He testified that the re volver contained three live rounds and three spent casings. The o ff icer also stated that he performed a g unshot residue test on the Defend ant. Laura Hodg e, with the Tennessee Bureau of I nvestigation Crime Laborator y, was qualified as an expert in gunshot residue tests. Hodge testified that she analy zed the gunshot residue test and foun d that ele

ments indicative of gunshot residue were present, meaning that the De fendant fired, handled or was near a g un when it was fired.
TeseanBrown te stified a

t trial tha t he knew the Defe ndant bec ause the

y ha d creat ed a cou ple of music tapes together and that he also knew the victim from the ne ighborhood. Brown testified that the Defendant was at his house on December 28, 1998, unti l arou nd fiv e o’clo ck in t he even ing. Browntestified that about a week after the shooting , the Def

endant c alled him

and aske d Brown

to do him a favor. Brown testified that the Defenda nt told him that “we went to do som e thing” and that when “he was doing it . . . the guy tried to tussle with [me] or something like that and the gun

. . . went off by

mist ake.” Br own st ated t hat th e Defen dant t old h im abo ut “di shin g” the gun, which was a .38, and the mask, and also told him the name of the victim. Brown testified that, thereafter , the Defend ant aske d him

to “tell [the police] that he was over [at] my house earlier tha t day and he had shot a gun in my b acky ard” be cause

“the police found some gunpowder on his hand.” B rown testified that, at first, he agreed and told the police the D efendant’s story , but later told the police the truth. Brown te stified th at, when the Defe ndant lef t his house , he was w earing a “black bubble jacket.”
Dr. Cyn thia Gar dner tes tified tha

t she is employ

ed with the Shelby

County Regiona l Forens ic Center and performed the autopsy on the victim. She determined that the victim diedof multip le gunshot wounds. She also testified tha t she rec overed t

wo bulletsfrom the v

ictim’s bo dy. Tommy-7-

Heflin, with the Tenness ee Bur eau of I nvestig ation For

ensic Service Division, was qualified as an expertin firearms identification and testified that both bullets retrieved from the victim’s body were fired from the .38 revolver that the police found nea r the crime scene.
Captai n Charles Hendricks, an officer with the Homicide B ureau of the Memphis Police Departm ent, testified that he was the cas e coo rdinator for the victim’s murder and supervised the investigation. Captain Hendricks testified that heinterviewed many of the witnesses in this case and that he was present

when the Defend ant made

his statem

ent. The captain stated that prior to giving a statement, the Defendant was read his rig hts and signed a Miranda waiver for m, which wa s admitted into evidence.
On cross-examination, Captain Hendricks testified that he filled out a p ri soner hol d form, which is only supposed

to be for fort y-eig

ht hours, but that the Defendant was held longer. The captain also testified that the Defendant was, there after, released without charg e.
Sherlie Lawrence , the Defendant’s mother, testified at trial that she had a convers ation with her son in Februa ry of 1999 in w

hich he sa id that:
He was there in

the apartment and that he and [the victim] fought over a weapon. He said as they wer

e fighting the wea

pon went o ff and he

felt that the bullet hit the door, one hit the doo

r [or] the wa

ll. He said he tried to get away . . he was running and that Mr. Foster was running after him . . . and that he turned around and he said th e weapon went off. He didn’t know at that time if it hit Mr. Foster, but he ran.
Sherlie Lawrence

testified that the Defendant also t old her th at when he left the apartment after shooting the victim, he tried to get away by jumping over a

fence, but that

the polic e stopped

him. She testified that she sent a letter to Captain Hendricks that contained this information. On cross

examination, Sherlie Lawrence testified that she had visions from the Lord about what ha ppened and what she was supposed to do, and that it was for this reason that she was testify ing against her son.
Andrea Ruth Johnson Lawrence, the Defenda nt’s wife, testified on his behalf. She testified that she hea rd the conversation that occurred betwee n the Defendant and his mother and that the Defendant

was rela yin g to his mo ther the

reason t hat he wa s arres ted and not the fac ts a s th ey occurred. Andrea Lawr

ence explained that the Defendant told his mother the details of the crime, butto l d her tha

t he lear ned all of those det

ails from the polic e. Furth

er, she s tated tha

t Sherlie Lawrence responded

to the Defendant’s statement by telling him that this was a sign he was to be a prison minister.
Based upon the a forem entioned testimony, the jury found the Defendant guilty of murder committed during t

he commiss ion of a r

obbery and also guilty of second degr

ee murde r, as alesserincluded offense of first degree murder. The trial court merged the second degree murder conviction into the felony murde

r conviction and sentenced the Defendant to life in prison with the po ssibility of parole.3 We note that t he Defendant’s stat ement was not a confession, rather it was a denial of i nvolvement in t he cri me. -8- II. Motio n to Suppress
The Defendant contends that the trial court er red whe n it denie d his motion t

o suppres s his statement to Captain

Hendric ks, the re sult

of a gunshot residue test, and the admission of the duct tape along with related testimony based upon tw o g ro un ds : ( 1) he wa s d et ai ne d f or mo re th an fo rt yeight hours; and (2) h is arr est was un supporte d by probable cause. T he State c ounters t

hat, while the Defendant was improperly held for more thanforty -eight hours, all the evid

ence ag ainst him

was collected within the initial forty-eight hour period; thus, his extended confinement is not rele

vant to the inquiry into the constitutionality of the gathered evidence . As to the Defen dant’s second cont entio n, the State counters that there was probable cause for the Defendant’s arrest. We ag ree with the Sta

te’s asse rtions on b oth grou

nds.
Prior to discuss ing any

further argume nts by the Defe ndant, we first

address his assertion that the trial court erred when it denied his motion to suppress his statement to Captain Hendricks. After reviewing the Defe

ndant’s b rief, wh ich only cites to testimony

presen ted at the su ppres sion hearin g, and our own review of the record , we have found no r

efere nce to thi s stateme

nt at the tr ial. 3 Captain Hendric ks, who provided testimony regarding the

Defend ant’s state ment a t the s uppre ssio n heari ng, didnot testify

about the Defendant’s statement at the trial. Theref ore, the decisionby the trial court notto suppre ss this test

imony , to which

the Defe ndant objects, is surely

of no con sequenc e since t his evidence was neve

r prese nted. Ac cording ly, we will on ly address the Defendant’s assertion that the trial court erred when it refused to suppress the evidence of duct tape on the Defe ndant’s fingers and the results of the gunshot residue.
In the Defendant’s brief, he strongly re lies on State v. Huddleston , 924 S.W.2d 666 (1996), to support his assertion that the trial court wrongfully denied his motion to suppress. The Defendant notes that he was detained for more t han forty-e

ight hours, and that his detention was, therefore, illega l. Implicitly , he argues that any evidence obtained at any time durin g the de

tention sh ould

be suppresseddue to his i llegal detentio n. We first

note that Huddleston applies o nly to statements by a defendant and not to other evidence obtained during an illegal detention. See id. at 671. As we have found that no evidence of the Defendant’s state ment was present

ed at tria l, Huddleston does notapply to this case. Even if Huddleston applied, the Huddleston court stated, “Obviously, if the statement was given prior to the time the detention ripenedinto a constitutional violation, it is not the product of the illegality and should not be suppressed.” Id. at 675. The statement by the Defendant

wa s g iv en on ly a few hours after his arrest and was not a product of his illeg al detention. Having so decided, we turn to the Defendant’s assertion that the evidence agains t him should be suppressed because it was a product of a war rantlessarrest

absent probable cause. The standard of review for a trial court’s findings of f act and conclusions of law in a suppr ession hearing was established in State v. Odom , 928 S.W.2d 18 (Tenn. 1996). When the trial court makes findings of fact at the conclusion of

a suppression hearing, the facts ar e accorded the weight of

a jury verdict

. State v. Stephenson , 878 S.W.2d 5 30, 544 (T enn. 1994 ). The tr ial cour t’s findin gs of fa

ct a r e-9-

“presum ptively correct on appeal” and

are binding upon this Court unless the evidence in the record preponderates agains t them. State v. Randolph , 74 S.W.3d 33 0, 333 (Te nn. 2002) ; State v. Henning , 975 S.W.2d 290, 2 99 (Tenn . 1998); Odom , 928 S.W.2d at 23. The prevailing party in the trial court is “entitled to the strongest legitimate view of the evidenc e ad duced at the suppression hearing as well as all reasonable and legitimate infere nces that may be dra

wn from that evidence.” Odom , 928 S.W.2d at 23. Furthermore, “[q]uestions of credibility of the witnesse s, the weight and value of the evidence, and resolution of conflicts in the evidence are matters e ntrusted to the trial judge as the trier of fact.” Id. Howeve

r, this Cour

t review s the tria

l court’sapplica

tion of the

law to the

facts de novo , without any defer

ence to the determinations of the trial court. State v. Walton , 41 S.W.3d 75, 81 (Tenn. 2001).
“An officer may , without a warrant, arrest a person . . . when a felony has in fa

ct been committed, and the offic er has r easonab le cause

for believing the person arrested [has] committed it.” Te nn. Code Ann. § 40-7-103 (a)(3) (1997). R easonab le or pro

bable ca use is such as would justify a reasonable person to believe that the person a rrested was guilty

of the felony. Wadley v. State , 634 S.W.2d 658, 663 (Tenn. Cr im. App. 19 82). Our

Supreme C ourt has d

efined “ probable cause” as “a re asonable

ground for suspi cion, supp orted by circumst ances indic ative of a n illegal act.” Henning , 975 S.W.2d a t 294. Upon

a showing

of proba ble caus e to believe that

a crime has been committed and that the suspect of the investigation committed that crime, a custodial arrest may properly be

made. State v. Crutcher , 989 S.W.2d 295, 300 (Tenn. 1999).
After the suppression hearing in t he case under sub mission, the

trial cou rt made sp ecific findings of fact and then found: [T]he de te nt io n a nd ar re st of th e d ef en da nt we re pr op er un de r t he to ta li ty o f th e circumst ances. After receiving a dispatch regarding the 911 hangup call, theofficers had a duty to investigate . Immediately after arriving on

the scene, they

heard shots fired, and saw the def

e ndant run

ning fr om the sce

ne five s econds la

ter. While following the defe

ndant, Of ficer H owell saw

him jump a fence and

remove his coat in 35 degree weather, throwing it on a garbage pile. He therefore had reas onabl e suspicion to detain him for further investigation. After his partner made the scene, and dete rmine d a robbery and possible felony murde r had been committed, they found the mask a

nd gun a long the route the defenda nt used to flee, and observed that the defendant had attempted to remove and hide t h e tape on his fingers, they had probable cause to arrest h im.
We conclude that the evidence does not pr

eponder ate ag ainst this finding, and, accordingly , affirm the trial court’s denial of

the Defe ndant’s m otion to sup

press. III. Motion for Mistrial
The Defendant argues that the trial court erred by

denying his motion for amistrial after the witness Tiffany

Butts volu nteere d the s tatem ent: “ I already hear d it t hrough the stree ts what hisname-10-

was because every

body knew they

did it because they

was riding around.” The gr anting or denial of a mistrial is a matter within the sound discretion of the trial court. State v. Hall , 976 S.W.2d 121, 147 (Tenn. 1 998); State v. McKinney , 929 S.W.2d 40

4, 405 (Te

nn. Crim. A

pp. 1996) ; State v. Millbro oks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). This Court will not distur b such a decision absent a

finding of

an abuse of discretion. Hall , 976 S.W.2d a t 147; State v. Will

iams , 929 S.W.2d 385, 388 (Tenn. Cr im. App. 1996 ); Millbrooks , 819 S.W.2d at 443. “The purpose for declaring a mistrial is to correct damage done to the judicial process when some e vent has occurred which precludes an impartial verdict.” Williams , 929 S.W.2d at 388. A trial court should grant a mistrial only when it is of “manifest nec essity.” Id. ; Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “In other wo rds, a mistrial is an appropriate remedy when a trial court cannot continue, or a miscarriage of justice would re sul t if it did.” State v. Land , 34 S.W.3d 516, 527 (Tenn. Crim . Ap p. 200 0) (ci ting State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994)). The burden of establishing a “manifest ne cessity” is upon the appellant. Williams , 929 S.W.2d at 388. Following Butts’s statement that “every body knew they did it,” the trial court admonished Butts to “[o]nly answer

the quest ion and if you continue to give extr

a informa tion, we w ill have to stop this trial a

nd we’ll have a contempt

hearing on y ou.” The

reafte r, defe nse coun sel aske d Butts, “Someone in the community told you a name?” Butts disobeyed the trial court’s instructi on to only answer defense counsel’s question with either a y es or no by stating , “Yes, the groundsman.” The trial court imm ediately took a re cess and ordered the jury out of the courtroom. During Butts’s contempt hearing, the trial court found Butts in contempt and sentenc ed her to five da ys in jail, which was suspended until the e nd of the trial. The trial court again admonished B utts that if she said “anothe r word tha

t [was] not in d

irect an swer to

these questions,” she would go to jail after the trial and the trial court would add more jail time consecutive to the five day s. Following the contempt proceedings, de fense counsel stated,
I feel compelled and just in an abundance of caution at this point to ask for a mistrial. This ju ry h as b een tainted. And it’s been tainted in a very tough case where somebody

is fighting for their life

right now. And what this jury has heard, that bell has been rung by say ing eve ry body knows tha

t these pe ople did it.
The trial court explained that “[m]y concern is that the def endants get a fair trial. And I don’t want anybody to sta rt any emotional nonsense. So I am just doing what I have to do. B ut I find on the record there is no manifest necessity whatsoever for a mistrial. . . .” Accord ingly, the trial c ourt deniedthe Defendant’s motionfor a mistrial. Once the jury returned, the trial court gave a lengthy curativ e instruc tion conc erning Butts’s s tatement :
From time to time

this witne ss has sai d things, and I heard fr om so and so that this, that and t

he other . Well, those

people aren’t

here, if they

are even known. They are not under

oath. And

people w ill say

all kinds o f stu ff. . . . And so things that-11-

other people say a

re definitely not proof

. So we have a rule ca

ll ed he ar sa y, that if somebody

el se sa ys something that is not u nder oat h, y ou’re not to consid

er it at a ll.
So I’ve explained to Ms. Butts . . . that she can’t just talk. A

nd some people can’t stop talking and I hope she is not that way . But people hav e emotions and feeli ngs and she may

just tend to

just talk on. And only after

there is something that she say s, she doe sn’t know that it doesn’t comport to the rules of evide nce bec ause she doesn’t understand the rules of evidence, she’ s not familiar with it. . . . And the pr

oblem is that since she wasn ’t asked a questio n about tha

t, she’ll start tainting it and saying

it and the lawyers c an’t object until they’ve already heard it, which means you’ ve already heard it. . . . The one side asked a question, the other side wa s objecti ng and she continued on any way bef ore I could even r

ule. She understands now that she can’t do that. And I ’ve let her calm down. . . .
But wha t I’ m goi ng to tell you, if ther e is anything tha

t she said that somebody

elsetold her o

r said, y ou are not to acce

pt that as e

vidence in this case at all. We don’t know who those people were. We don’t know what t hey were do ing. And you have to dismiss that from y our mind. It is not evidence i n t his case. Can everybody

follow t ha t? I see

all these heads. A

nyb ody say they can’t f ollow that ? All right. . . .
After thoroughly r

eviewing the record reg arding Butts’s improp er state ment, we conclude that the trial court did not abuse its discretion by de nying the D efendant’s motion for a mistria l. In our view, the re was n o manife st neces sity for a mistrial in this case. While Butts’s statement was certain ly improper and prej udicial to

the Defe ndant, the trial court’s actions following the statement ensured two things: (1) that jury me mbers understood that

Butts’s statement was improper and that they should not consider it as evidence in the case; and (2) tha t Butts would no longer make unsolicited gratuitous comments in front of the jury. First, by giving the jury a lengthy c

urative instruction, the trial

court en sured tha

t jurors w ould not c onside r Butts’s improper statement as evidence in the Defendant’s case. Secon d, by findingButts in c ontempt a nd admonis hing he

r to behave properly a s a witness, the trial court ensured that Butts would only answer the questions askedof her a

nd not giv e any

more gr atuitous c omments. T

he trial c ourt expli ci tly asked jurors whether they understood the c

urative instructions, and all the jurors indicatedthat they would follow those instructions. The Defendant did not object to the instructions at trial and does not contest them on appeal. We must presume that the jury properly followe d the trial court’s instructions absent clear and convincing proof to the contrary

. See State v. Smith , 893 S.W.2d 908, 923 (Tenn. 1994); State v. Woods , 806 S.W.2d 20 5, 211 (Te nn. Crim. A

pp. 1990) ; State v. Vanzant , 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). Here, the Defendant has not shown that the jury did not follow the trial court’ s instruc tions. Accordingly , we conclude that the trial court did not err by denying the Defend ant’s moti on for a m istrial.4 The trial court included instructions on the following crimes: premedita ted fi rst degree murder, second degree

murder, facilitati on of pre meditated first degree murder, faci lit ation of second degr ee murder, voluntary mansl aughter, faci li tat ion of voluntary manslau ghter, reckless hom icide, criminally negligent homicid e, first degree murder

during the perp etration of rob bery, a nd fac ilitation of first d egree murd er du ring the p erpe tration o f robb ery. -12- IV. Prosecution’s Closing Argument
The Defendant next contends that certain remarks made by the prosecu tor duri ng closing argument were so inflammatory

tha t they affe ct ed the ve rdict to th

e prejud ice of the Defe

ndant. Among the factors considered by this court when reviewing an alleg ation of prosecutorial misconduct

are: the intent of the prosec utor; the curative measures undertaken by the court; the imprope r conduct vi ewed in context and in light of the facts and circumstances of the case; the cumulative effec t of the re marks wit h any errors in the re cord; and the rel ative str ength o r weakness of the case. State v. Farmer , 927 S.W.2d 58 2, 590-91 (Tenn. 1 996); Judge v. St ate 539 S.W.2d 340, 344 (Tenn. Cr

im. App. 19 76). I

n order t o be entitled to relief, the defendant is required to show that the argument of the prosecutor was so inflammatory or the conduct

so improper that it affected the verdict to his detriment. Farmer , 927 S.W.2d at 591.
None of the stat ements objected to on appeal by the Defendant was objected to during the trial. It is wel l set tled that without a contemporaneous objection to a prosecutor’s statements, the error is waived. Id. at 591; State v. H all , 8 S.W.3d 593 , 603 (Tenn. 1999 ); State v. Sutton , 562 S.W.2d 820, 825 (Ten n . 1978). After reviewing the rec ord, we note that the Defendant did not object to the state ments by the prosecutors a

nd, acc ordingl

y, h as waive d this issue

on appea l. V. “Knowingly” Instruction
Fi na ll y, the Defendant argue s that the trial court committed plain error by incorrectly

defining “k no wi ng ly” in its charge to the jury . At the concl usion of the tri al, the trial court gave the jury instructions regar

ding ea ch offe nse for which the Defendant was charg ed. 4 The trial court defined second d egree murder in

its instructions as fo llows: Any person who c ommits second degree murder is guilty of a crime.
Fo r you to find the defe

ndant guilty of this offe

nse, the state must hav e proven bey ond a rea sonable d oubt the e xistence o f the foll owing e ssential e lements: (1) t hat th e def enda nt unl awfully

kille d [the

victim];
and (2 ) t ha t t he de fe nd an t a ct ed kn ow in gl y.5 W e note that second degree murder can also be committed by the kill ing of another which r esults f rom the unlawful distri bution of certai n drugs. Tenn. Code Ann. § 3 9-13-210(a)(2). This form of second degree murd er was not at issu e in this cas e. -13-

“In te nt io na ll y” means that a person act s intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’s conscious objectiv e or desi

re to eng age in t

he condu ct or ca

use the r esult.
“K no wi ng ly” means tha

t a perso n acts kno wingly

with respect

to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the p erson’s c onduct wh en the pe rson is aw are tha

t the cond

uct is reasona bly certain to cause the result.
The requirement of “knowingly ” i s also established if it is shown that the de fe nd an t a ct ed in te nt io na ll y. The Defendant argues tha t under Stat e v. Pa ge , 81 S.W.3d 781, 787 (Tenn. Crim. App. 2002), the trial court’s definition of

“knowingly ” was incorrect and plain error. While we a gree that the trial court erred in defining “knowingly ” in the jury instructions, we c onclude that the erroneous jury instructi on was ha

rmless.
Second degre e murder

is defined as “[a] knowing killing of another.” 5 Tenn. Code Ann. § 39-13-21 0(a)(1 ) (1997) . The ter m “knowin g” is defined by statute a s follows:
“Know ing” refers to a

person w ho acts knowing ly w ith respe ct to the c onduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person’ s conduc t when the person isaware

that the c onduct is reasona bly certain to cause the result.
Tenn. Code Ann. §§ 39-11-106(a)(20), -302(b) (1997). However, the Tennessee Supreme Court has explained that a kno wing se cond deg ree mur der is a “result-of-c onduct” offense because the result of the conduct is the sole element of the offense. State v. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000). Therefore, the nature of the conduct tha t ca uses dea

th or the ma

nner in which one i s killed is inconsequential under the s econd degree murder sta tute. Id. Because a knowing sec ond degree murder is strictly a “re sult-of-conduct” offense, “a jury instruction that allows a jury to convict on seconddegree murder based only upon aw areness of the nature of the conduct or circumstances surrounding the conduct improperly lessens the state’s burden of proof. For second degree murder, a defenda nt must be a

ware tha t his or her

conduct is reasonably

certain to cause death.” Page , 81 S.W.3d at 788.-14-

In Page , this Court

provided a correct jury

inst ruction fo r knowing second degree murder, which included

the following def

inition of “

knowing ly” : “‘Know ingly ’ means th at a per son acts withan awareness that [his] [her] conduct is reasonably cer tain to ca use the death of the alleged victim. The requirement of ‘knowingly ’ is also established if i t is shown that the defendant acted ‘intentionally.’” Page , 81 S.W.3 d at 788. In t his case , the tria

l court e rred by including

within its definition of “knowingly ” the phrase, “a person acts knowing ly w ith respe ct to the c onduct or to circumstances surrounding the conduct w hen the pe rson is aware of the nature of the conduct or that the circumstances exist.” The trial cour t should h ave limited its definition of “knowingly” to the “result- of-cond

uct” definition instea d of also including the “nature-of-conduct” and “nature-ofcircumst ances”definitio ns. However, we conclude that the e rror in th e jury instructi ons in this c aseconstituted harmle ss error. While a defendant has t he constitutional r

ight to c omplete

and accurate jury

instructions on the law, “anerrone ous jury instructi on, which

misstates the appli cable c onduct el ement of an offe nse and lessens the state’s burden o f proof, is . . . subject to constitutional harmless error analy sis.” Id. at 789. In Page , the defendant was convicted of second de gree murder for ca using the death of the victim by striking him in the back of the head with a baseball bat. Id. at 782. On appeal, this Court found that the trial court erred by including “nature-of-conduct” a nd “nat ure-of

-circumstance s” definitions of knowingly in its jury instructions an d that the tr ial cour t’s erro r was not h armless because the defendant’s trialdefense had been that he was intoxicated and unable to appreciate the conseq uences of his conduct at the time he hit the victim with the baseball bat. Id. at 789-90. However, this Court explained in Page :

We reco gniz e that in many, if not most, homicide trials, the mens rea jury instructions utilized in th is cas e wo ul d be har ml ess err or. If a victim is shot at point blank range with a twe

lve gau ge shotg

un while a sleep, a

nd th e de fense is the defendant was not the shooter, then the er rone ous instruction would likely be harmless. In such

a situation, mens rea is no t a di sp ut ed is su e a t t ri al . S im il ar ly, if causation is not disputed in a homicide trial, the failure t o instruc t the jury on causation may well be ha rmless. See St ate v. Far ner , 66 S.W.3d 188, 206 (Tenn. 2001). Page , 81 S.W.3d at 78 9 . In Page , the tria l court’sjury

instructi on error

was not ha

rmless be cause mens rea was a disputed issue at trial and part of the defendant’s de fense.
In this case, by contra st, men s rea was not a disputed issue at trial. Here, the Defendant’s defense was that h

e was not the shoote

r at all a nd that the

witnesse s had miside

ntified him. Thus, we conclude that the trial court’s error of including the “nature-of-conduct” an d “nature-o fcircumst ances”definitions in its de finition of “knowingly ” was harmless. Furthermore, we c onclude that the trial court’s jury

instructi on err or was harmless because the trial court merg ed the6 W e note that t he “knowingly” i nstructi on given by the tri al court was correct f or the purpose of defining “knowin gly” under the fel ony murder instructi on. Unlike second degree murder, robbery is not a “re sult-of-co nduc t” offen se, so the tri al cou rt’s in clusion of the “nature-of-cond uct” and “nature -of-circumstances” d efinitions of “k now ingly ” was proper under the felony murder inst ruction. -15- Defendant’s second degree murder c onviction with his felony murder conviction, thereby neg ating the error contained in the “knowingly ” instruction for the second degree murder charge. 6
Ac co rd in gl y, based upon the fore going authoriti es and re asoning , we AFF IRM the judgment of the tri al court

.

___________________________________ ROBERT W. WEDEMEYER, JUDGE