# FILED September 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9707- CC-00265 ) Appellee, ) ) FAYETTE COUNTY V. ) ) ) HON . JON K ERR Y BLA CKW OOD , COREY LEMONT PO WELL, ) JUDGE ) Appe llant. ) (FIR ST DEGREE MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL E. SCHOLL JOHN KNOX WALKUP 200 Jefferson Avenue, Suite202 Attorney General& Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashvill e, TN 37243 ELIZA BETH T. RI CE District Attorn ey Ge neral CHRISTOPHER MA RSHBURN Assistant Distri ct Attorney General 302 M arket Stre et Somervill e, TN 38068

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Corey Lemont Powell, ap peals as of right fr om his convi ction in the Fayette County Circui t Court. Defenda nt was indicted on three counts, includi ng especiall y aggravated rob bery, murder during the perpet ration of a robbery, and premeditated first degr ee murder. Foll owing a jury trial , Defendant was convictedof second d egree m urder, felony mu rder a n d especially aggravated robbery. The trialcourt m erged th e seco nd deg ree mu rder con viction with the felon y murder convict ion an d sentenced Defendant to serve a l ife sentence for fel ony murder concurrent with a sentenceof fif teen (15) years for t he especially aggravated robbery convic tion. Defendant

submits t he foll owing i ssues for appell ate rev iew: 1) whether the trial cou rt erred in denyi ng D efenda nt’s motio n to suppre ss his state ment; 2) whether the t rial cour t erred i n refusing Defenda n t access to t he results of a polygr

aph test for use as evi dence; 3) whethe r the trial cou rt erred by re fusing to suppress evi dence of the murde r weapo n and th e ballistics tes t; 4) whether thetrial court erred in deny ing Defendant’ s motion regardi ng the stri king of specific j urors and motion for a change of venue; 5) whether t he tria l court erred in denyin g Defend ant’s motion for a mistrial du e to adm ission of ev idence of Defen dant’s arre st; 6) wheth er the tr ial cou rt erred in refus ing to a dmit testimony r egarding Defe ndan t’s restricted access to the telephone during poli ce questioni ng; 7) whether the trial cou rt err ed in over ruling Defend ant’s motion for a judgm ent of a cquitta l; 8) whether thet rial cour t erred by

refusing t

o charge lesser

included offenses of

premeditated first degr ee murder; and 9) whether t he tri al court erred by al lowing prosecutorialmisconduct during the trial.-3- After a thorough revie w of the record an d the briefs in this ma tter, we affirm the judgment of the tri al court in al l respects.

Bess ie Russell, wife of Don Russell , testified that he was the ow ner and operator of Russell’ s Grocery located in Hickory W ythe, a rura l area of Fa yette County. The store had been open si nce April 1947. In May 1994, Don Russel l was seventy-f

our (74) ye ars old . Russ ell and his wi fe liv ed next door to the store, and each morning he rose at 5:00 a.m. to op en the store. He went to the store to eat h is breakfast and read the paper, then returned to the house wi th the newspaper for her to r ead. The stor

e was open from 5: 00 a. m. un ti l 5: 30 p. m.

On May 27, 1994, Mrs. Russell awoke and di scovered that her husband had not yet r eturned with the newspaper. She walked to t he store and found him lyi ng on his back in a pool of bl oo d. Mrs. Russel l call ed 911, and the vi ctim was transported by helico pter to a hos pital i n Memphis where he was pronounced dead. She noticed t hat the ci gar boxwas missing fr om the store and est imated the amount of mon ey in the bo x to be be tween $ 800.00 and $1 200.00
.

Dr. O’Brien Sm ith testified that he perform ed the a uto psy of the victim. Dr. Smith report ed tha t the victim died as a resul t of a near gun shot wound to t he head, and he rem oved a .22 ca liber bu ll et fragm ent from the bac k of the vi ctim’s br ain. From his examinat ion, Dr. Smith determined t hat the gun f ired at the victi m was between six (6) to tw elve (1 2) inch es from the victim ’s headat t he t ime it was f ired.

Bill Kelley, Sheriff of Fayette C ounty, testified that he led the i nvestigat ion of the victi m’s murder. After arri ving at Russ ell’s Grocery on May 27, 1994, at 6: 30-4-

a.m., Sheriff Kelley de termine d that a cigar box co ntaining approximatel y $1200.00 had been stolen f rom the store and that the re were no witness es to the shoot ing of th e vi cti m. On June 24, 1994, Ke lley interrogated a po tential suspect, Jerry Coleman, but after

a brief i nvestigat ion, Coleman waseliminate d as a su spect. The i nvestigat ion , in She riff Kelley ’s word s, cam e to a “d ead e nd.” T wo yea rs later, in A pril 1996 , Kelley

discovered t hat the Defendant had told some peoplewithin t he
comm unity that he was responsibl e forthe victim ’s mu rder. A lso, the Defe ndan t’s nine-shot

.22 cali ber revol ver was seized from hi m by police du ring the M id-South Fair. After t he revolver was recovered f rom th e Me mphis Police Depart ment prope rty r oom, both the revolver and b ullet fragments from the victim’s brain were sent for ba llistics testing.
Kelley interv iewed the Defendant for the f irst t ime on May 1, 1996, adv ising him that he was i nvestigat ing the vi ctim’s deat h and that t hey ha d recovere d the Defe ndan t’s pistol . After reading Defendant

his consti tutionalrights, the Defendant signed a waiver

of these ri ghts and did not request an at

torney or his parents

to be presentd ur ing the i ntervi ew. Defendant deni ed any involvement in eit her the robbery or murd er of the victim, but did advise Kelley that Br yant P owell a nd Er in Lucke tt were invol ved. The Defendant was released fol lowing that interv iew. After further investigatio n, the De fe ndant was again picked up by the poli ce for questioni ng on May 3 or 4, 1996. After advi sing Defendant of hi s rights fora second time, Kelley i ntervi ewed the Defendant on May 6, 1996. Defendant again denied his involvement in the crime.

On May 7, 19 96, S herif f Kelley wa s notified tha t the Defe ndant w anted to speak with him. After Defendant was advised of his consti tutionalrights andsigned-5-

a waiver form, h e aga in denied involvement in the murder and implicated his cousin, “Big John,” fro m Me mphis . On Ma y 8, 1996 , Agent S cott W alley from th e Tennessee Bureau of Investigati on came to int ervi ew the D efenda nt upon Sheriff Kelley ’s request. Sheriff Kel ley verified thatthe Defendant was nev er mistreated or prom is ed anything i n exchange for hi s statement. Kelley al so stated t hat he wa s neverinforme d by eithe r the Defe ndant o r his paren ts that th ey wanted or had retained an attorney, alt hough Kelley spoke with Defendant ’s parents several times throughout t he investi gation.
Agent Walley test ified t hat he advised Defendant of his consti tutional ri ghts. During the first

portion of the i ntervi ew, Defendant deni ed involvement in the crime. Followinga lunch break, Defendant ret urned to the i ntervi ew and gave a statement to Agent Walley in whi ch he admitted r obbing and shooti ng the victi m. Defendant stated that he entered Russell’ s Grocery at appr oximately

5:30 a.m. on May 27, 1994, with his

nine-shot .22 cali ber revol ver in hi s right f ron t pocket. He told the victim t o “g iv e [h im] the m oney a nd the re won ’t be no [sic] pro blem .” The victim pulled out the gol d cigar box from underneat h the counter, and then went to t he beer cooler to get a si x-pack of

Miller be er as D efend ant req ueste d. W hile turning ar ound with his elbows halfway up, t he Def endant bec ame frighten ed an d pulle d out h is revolver which “acc identally fired.”

W hile the Defendant’ s statement was not tape recorded, Agent Walleytook not es and then w rote out a statem ent in narrative form w hich Defen dant re ad an d signed after ini tialing al l corrections. Sheriff Ke lley returne d to the room and read t he statem ent. Whe n Def endant affi rmed that thi s was indeed his statement, Kel ley signed the statem ent as a w itness.-6- Steve Scott, an agent of t he Tennessee Bureau ofInvesti gation, admi nistered the balli stics testing on the pistol and the bul let fr agment. While Scott was unab le to determine that

the bullet fragme nts were fired from the Defe ndant’s p istol due to damage, Scott test ified t hat all fourclass characteristi cs of the bul letand the pistol
were a match
. These four clas s characteri stics i ncluded the cal iber of t he gun and bullet, the directio n of the ba rrel tw is t, the number of lands and groove s, and the width of the l ands and g rooves. While t he Defendant’s weapon could not be isolated as the murder weapon, it cou ld “certai nly” have been the weapon used. Agent Scott also noted that the pisto l required trigger press ure “between normal and heavy” to fir

e the weapon, dependent upon whether the weapo n was cocked or uncocked when it was fired.

The S tate rested its case-in-c hief.

Tim Adams, a friendof the Defendant’s, testifi ed that after the victim’s murd er, the Defendant lef

t town for

one or two weeks. When the Defendant ret urned, he had both new tire s and a new vinyl top on his car. Joki ngly, Adams inqui red whether the Defendant had “bumped old Do nn off,” b ut the D efend ant on ly laughed in r esponse.

Jess e Jam es Jo nes te stified th at he w as inca rcerat ed in a cell facing that of Defendant’s. Jones made several telephone call s for the Defend ant because the telephone i n Defendant’s ce ll was not working.
Rodney Johnson testified that t he Defendant never told him t hat he robbed or murd ered th e victim . John son d id verify th at De fenda nt own ed a .2 2 pisto l.-7- Stevison Veasey, the Defendant’s stepfather, testified that Defendant visited his mot her around May 27, 1994. During t hat visit, Veasey bought new tires f

or Defe ndan t’s car. Duri ng that same vi sit, Veasey stated t hat Defend ant’s nat ural father put a new vinyl roof on the Defe ndant’s car.

M OTION TO SUPPRE SS STATEMENT

Defendant argues that his state ment g iven to t he police on hi s fift h day of incarcerat ion should h ave bee n supp ressed as a violati on of hi s Fourth, Fi fth and Sixth Amendment rights under the United States Consti tution. Wh en an accu sed is afforded an evidenti ary heari ng on the merits of a motion to suppr ess, the f indings of fact made b y the trial court are bin din g upon the appell ate court unl ess the evidence containe d in the rec ord prep ondera tes aga inst th ese findi ngs. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibili ty of the wit nesses, the weightand value of the evidence , and resolution o f conflicts in the evidence are matters entrusted t

o the tri al judgeas the trier of fact.” Id . Provide d thatthe greater weightof the e videnc e sup ports th e trial co urt’s findings, then those f indings shal l be uphe ld by the appell ate court and the party prevailing in the trial court is entitled to the strongest legiti mat e view of the evi dence and all reasonable inferences which may be drawn from that evide nce. Id . In eval uating the correctness of the trial court’s ruling o n Def enda nt’s pre trial mo tion to s uppre ss, this court may consider t he proofadduced both at t he suppression he aring an d at trial. State v. Johnny Henning , ____ _ S.W .2d __ ___, N o. 02S 01-97 07-C C-00 65, 19 98 W L 324 318, s lip op. at 6, Madiso n County (T enn., at Jackso n, June 22, 19 98).-8- At the he aring o n the m otion to supp ress, S heriff B ill Kelley te stif ied that h e had the Defendant picke d up for quest ioning for the fi rst ti me on May 1, 1996. After the Defenda nt d enied any inv olvement in t he crime and impli cated others, he was released and further

investi gation occur red. Kell ey recall ed tha t Def endant was picked up again for

questioni ng on May 6, 1996, and was held unti l he confessed on M ay 8, 1996
. There is some discr epancy in Kell ey’s test imony as to t he date the Defendant was picked up by t he police for questioni ng on the second oc ca sion. Howeve r, the tri al court’ s findi ngs of fact and the stro ngest legi timate view of th e evidence require us t o conclude that

Defendant was not pi cked up for quest ioning again by the poli ce untilMay 6, 1996 and was held w ithout a warra nt or arr est un til May 8, 1 996, wh en he c onfess ed to the ro bbery an d murd er of the victim
.
First, we will address the Defendant’ s contention that hi s confessi o n was obtained in v iolatio n of his Si xth Amendment constit utional right to counsel. The Sixth Amendment right to counsel does not at tach unti l the adver

sarial judici al process has be gun. Michigan v. Jackson , 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed .2 d 631 (1 986) (citatio ns om itted); State v. Stephenson , 878 S.W.2d 530, 547 (Tenn . 199 4). Th e long- establi shed law in Tennessee f or the initiati on of the adversari al judici al process is at the time of t he fili ng of the fo rmal charge, s uch as
an arrest war rant, i ndictmen t , presentme nt, or preliminary hea ring in cases wh ere a warrant was not

obtai ned pri or to the ar rest. State v. Mitch ell , 593 S.W.2d 280, 286 (Tenn . 1980), cert
. denied , 449 U.S. 845 ( 198 0); State v. Butler , 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990). It is clear from the recor

d that Defendant

had not
as yet been formally charged as of the ti me he gave his statement, ther efore no ri ght to coun sel had ye t attached and no violation of the Sixth Am endm ent occu rred.-9- Defendant u rges t his court to suppress hi s statement as i nvoluntar y based upon denial of the ri ght to counsel during poli ce interrogati on pursu ant t o the Fifth Ame ndme nt. If a suspectrequest s that counselbe present duri ng police- initi ated custodialinterrog ation, th en po lice m ust ce ase q uestio ning u ntil cou nsel f or that suspect is presen t. Miranda v. Arizona , 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (19 66); Edwards v. Ari zona , 451 U.S . 4 77, 482 , 101 S.Ct. 1 880, 1883, 68 L.Ed .2d 378 (1981); State v. S te p henson , 878 S.W.2d at 547-48. The Defendant waived his right to counsel verba lly an d/or in wri ting on each occas ion when he was inter rogated by t he police. Therefore, hi s waiver i s suf ficien t for t he police to have a ssum ed he d id not invok e his right to c ounse l under the Fifth Ame ndme nt.

The Defendant assert s that at the time he gave his statement to the pol ice he had been inc arcerated for five (5) days and t hat this amount of ti me violated t h e Fourth Amendment right to pr ompt judicial d eterm ination of prob able cause after a warrantless arrest. The State concedes t hat Defendant may have been detained
overa period of forty-eight (4 8) hours , therefore , there wa s a violation of the Fo urth Ame ndme nt. See Cou nty of R iverside v. McL augh lin , 500 U.S . 44, 56, 11 1 S.Ct. 1661, 1670, 1 14 L.Ed .2d 49, 63 (1991); State v. Huddleston , 924 S.W.2d 666, 671- 73 (Tenn. 199 6). In Huddleston , our state supreme court determined that the “fruit of the poisonous tree” analysi s i s to be applied to determine whether a statement ob tained in violation of th e Fourth Ame ndme nt mus t be supp ressed
. Huddleston , 924 S.W.2d at 674. The questi on is “whether [the statement] ‘was suf ficien tly an act of free will to purge the prim ary taint of the unlawful invas ion.’” Brown v. Illinois , 422 U.S. 590, 598, 95 S.Ct . 2254, 2259, 45 L. Ed .2d 416 (1975) (quoting Wo ng Sun v. United States , 371 U.S . 471, 486 , 83 S.C t. 407, 416 , 9 L.Ed.2 d 441 (1 963)).-10- Four factors ar

e useful i n determining whether the stat ement wa s voluntary underthe above stand ard: (1) the presen ce or ab sence of Miranda warnings; (2) the temporal proximit

y of the ar rest and theconfession; (3) thepresence of i nterveni ng circumstances; and (4) thepurpose and flagrancy of the official m iscondu ct. Brown , 422 U.S. 603-04 , 95 S.C t. at 2261-6 2; Huddleston , 924 S .W .2d at 6 74-75 . First, all testimony

indicates that Defendant was given Miranda warnin gs bo th orally and in writi ng prior to giving his statem ent to the police. Th e fact that Defen dant was a ware of his Fifth Am endm ent righ ts aga inst se lf-incrim ination is a facto r weigh ing in favor of attenua tion. Huddleston , 924 S.W .2d at 675 . Secon d, the tem poral pro ximity of the arrest an d confe ssion, a p eriod of jus t a few hours past a McLa ughlin violat ion, weighs only s lightly in favor of suppress ion.

The third f

actor, t he presence of i nterveni ng circumstances, points tow a rd purging theiniti al il legali ty of the sta teme nt as D efend ant co nsulte d with h is fam ily
on May 7, 19 96, prior to g iving his state ment. Huddleston , 924 S.W.2d at 675. Also
on May 7, D efenda nt reque sted to voluntarily submi t to a pol ygraph examinat ion on the followi ng day. D efendant’s consent to submit

and remain present for the polygraph examinat ion e xemplifi es his “act of free wi ll,”

also point ing towards attenuati on. Finally , the State concedes that Defendant’s detention under t he fourth determiningfactor wa s neither in adverte nt nor unin tentional b ased u pon Sh eriff Kelley’s tes timony.

W hile the fourt h factor i s weighed heavi ly by t his court when det erm ining whethe r to suppress a statement, a revi ew of the remaini ng three (3) factors leads this court to conclude that Defendant acted suff icient ly of f ree willto purge the i nitial illegality of his statemen t. Both the intervening factors and th e use o f Miranda-11-

warnings clearly demo nstrate that Defe ndant acted of his own free w ill, and the third factor, thatof temporal p roximit y, does not exhibit

such a length of

time as to require suppression.

Defendant also argues that this del ay viol ated Rule 5 of t he Tennessee Rules of Criminal Procedure. Rule 5(a) states that any person arrested wi thout a warr ant shall be taken without un neces sary dela y before th e neare st appro priate magistrate. As Defendantdid not agre e to a lengt hy detenti on, it i s argued that the delay was not in good fait h and was unnec essary. The S tate ag ain co nced es tha t Defe ndan t’s detention violates this r ule. Viol ation of t his rule resul ts in suppre ssion of a
s tatem ent if the statement was not voluntarily given under the totalit y of the circumstances. Huddleston , 924 S.W.2d at 670. The followi ng factors may be used in determini ng the voluntariness of the confessi on: The age o f the ac cuse d; his la ck of e duca tion or h is intellige nce le vel; the extent of

his previ ous experience with the pol ice; therepeated and prolonged nature o f the ques tioning; the length of the dete ntion of t he accused before h e gave th e statem ent in que stion; th e la ck of any advice to the accused of his consti tutionalrights; whether ther e was an unneces sary delay in bringin g him before a magistrate b efore he gave the confession; whether the acc used was inj u red, intoxicated or drugged, or in i ll hea lth wh en he gave the statement; whether t he accused was deprived of food, sl eep, or

medical attenti on; whether t he acc used was ph ysically abu sed; an d wheth er the su spect wa s threatened wi th abuse. Huddleston , 924 S.W.2d at 671 (quoti ng People v. Cipriano , 4 31 Mi ch. 315, 429 N.W .2d 781 (198 8)).
There is no evi dence withi n the record t o support that

the Defenda nt’s age, intelli gence oreducation l evels prevented him from voluntarily confessing. N or were any physical o r menta l limitations intro duced into evidence. Th ere is some evidence indicat ing Defendant has had pri or contact with law enf orcement. While Defendant
was repea tedly questioned by the police, he was Mirandiz ed prior to a ll questioni ng-12-

a nd he init iated many port ions of t hat questi oning voluntarily . Another factor fav oring voluntarinessof his con fessio n is the conta ct he w as allo wed to have w ith his family. At no ti me du ring the qu estioning was the re any evid ence th at Defen dant wa s deprived of any necess ities, nor is there evidence of ph ysical o r mental abuse. W hile we agree there was an unnecessary del ay and a violat ion of Rule 5(a) of the Tennessee Rules ofCriminal Procedure, under t he totality of t he circu mstances we
canno t conclud e that De fendan t’s statem ent was involuntary
.

P OLYGRAPH EXAMI NATION

Defendant contends that he should have been allowed a ccess to the resu lts of his polygrap h exam ination an d shou ld have b een allow ed to presen t the results
as evidence. At the suppressi on hearing, Agent Walley testi fied that

the resul ts indicated that Defendant was “dec eptive” as to his i nvolvement i n the crimes committed against th e victim. T herefore , Defend ant was a llo wed access to the results of th e exam ination.

Well-establi shed law in Ten nessee holds that the result

s of a polyg raph examination are not admissi bl e a s eviden ce. State v. Hart , 911 S.W.2d 371, 377 (Tenn. Crim. A pp. 199 5); State v. Irick , 762 S.W .2d 121 , 127 (T enn. 19 88), cert
. denied , 489 U.S. 1072, 109 S. Ct. 1357, 103 L. Ed.2d 825 (1989); State v. Adkins , 710 S.W.2d 525, 529 (Ten n. C ri m. App. 19 85); Grant v. S tate , 213 Tenn. 440, 443, 374 S.W.2d 391, 392 (1964). As the State correctly notes wit hin its brief, neither t he offer to take a poly grap h nor th e circu msta nces surrou nding the exa m are adm issible
as evidenc e. Adkins , 710 S.W .2d at 528 -29; Grant , 374 S .W .2d at 3 92. Th is issue is without m erit.-13- R EVOLVER AND B ALLISTICS TEST RESULTS

Defendant argue s that th e trial co urt erre d in admittin g a revolve r and b allistic test results into e vidence
. D efend ant as serts th at the re volver w as ina dmis sible since his prior crim inal record had be en expu nged. F urtherm ore, the D efe nda nt urges this cour

t that the ball istics test res ults were s o inconclusive as to be rendered neithe r releva nt nor p robativ e, but h ighly pre judicia l.
During Septem ber 199 4 at th e Mi d-South Fair in Memphis, Tennessee, Defen dant was a rrested for carryi ng a loaded .22 cal iber revolver. After pl eading g uilty to charges of

carryi ng a weapon on recreat ional proper ty, Defendant

was p lac ed on judici al diver sion. Evi dently, Defendant completed his sentence of diversion without furth er inciden t and his re cord wa s expun ged.
Expungement pursuantto judi cial diversi on includes “all recor dation rel ating to the person’ s arrest, indict ment orinforma tion, trial, finding o f guilty and dismissal and discharg e . . .” Tenn. C ode An n. § 40-35-3 13(b). T his statute ’s purpos e is to restore the defendant to t he sta tus the pe rson oc cupied prior to suc h arrest, indict ment or informat ion. De fenda nt ma intains that ph ysical e videnc e is inadm issible under th e judicial dive rsion statu te. There is no auth ority to sup port his argum ent. The purpose of expungi ng records of a criminalcharge is to place the person back in the positi on he or she occupiedprior to being arrested or charged. State v. Sims , 746 S.W .2d 191 , 199 (T enn. 19 88). While the tri al court did all ow use of the revolver

as admissibl e physical evidence, he refused to all ow admission of any facts surrounding Defendant’s pri or arrest . The expungement language in our judici al diversi on statute precludes use of pro of of any a rrest, indictm ent,-14-

informati on, or trial. State v. Dishman , 915 S.W.2d 458, 464 (Tenn. Crim . App. 1995). Physic al evide nce is not excluded under t his stat utory sect ion, and t his issue is without m erit.

Defenda nt complains the ballistic test results should have been suppressed
as they were “inconclu sive” and , although relevant, t hei r probati ve value was subs tantially outweighed by t he danger of unfa ir prej udice. The deci sion to admit or exclude evidence rest s in thesound discret ion ofthe tri al court, and this cour t willnot overturn the tri al court’ s rulings absent a clear

showin g of abu se of disc retion. State
v. Bigbee , 885 S.W .2d 79 7, 806 (Ten n. 199 4). W hile the offi cer who conducted t he ballis ti cs tests admit

ted the test result

s were not concl usive, he testifi ed that the weapon could no t be excl uded as the potential murder weapon. The officer also stated that the f

our class char

acterist ics of t he Defenda n t’s weapon matched t he bullet which kil led the victi m. The revolver and the murder weapon had matchi ng calibers, same number of land and grooves, matching land andgroove widt hs, and the same di rect ion of bar rel twi sts. Coupl ed wi th t he statemen t of De fen dant confessing to th e crime, the se test res ults are r elevant, and the probative value clearly outwe ighs th e pote ntial p rejud icial effect of the inconcl usive natur e of the results.

BATSON CHALLENGE AND CHANGE OF VENUE

Defendant argues that the State’ s e x clusio n of ce rtain bla ck juro rs was in violat ion of Batson v. Kentucky , 476 U. S. 79, 106 S.Ct. 1712, 90 L.E d.2d 69 (198 6). Followingthe conclusi on of voir dire, t he State exerc ised its peremptory chall enges against four

(4) jurors, specificall y ju rors Rive rs, Ho well, Wo ods an d Bryan t.-15-

Defendant objected under Batson that such chal lenges were based upon wil lful and purposeful discrimin ation by th e Stat e. While the Defendant argued that these challengesresultedin all blacks being exc luded from th e jury, the State r esponded, “[I]t’s been an unfortun ate coinci dence that most everybodythat knows the d efendan t or his family is African-American, but t hat’s a soci ologicalfact that the State can’t be p rejudiced by . . .”

After Defenda nt obj ected, the State res ponded to each chall enge with an indivi dual explana tion for the p eremp tory challen ge. First, wit h regard to j uror Rivers, the State cited the fac t that he had been through the c riminal courts before and worked with i ndividual s similarly sit uated to the Defendant on a daily bas is. The State referenced t he challenge to juror Howell due to her

relati onship wit h the Defendant and his fam ily, and that, in response to questioning, so me of her a nswers “gave her some pause about her j udgment in thi s case.” Jur or Woods was excluded by the State ashe has a son the same age as the Defendant and is fr iends wit h the De fendan t. Juror Bryant had two family members convicted of felony offense s i n Fayette C ounty.

There is a three-step analy sis defi ned in Batson which is u sed to determine whetherpurposeful discrim ination has o ccurre d in jury selection
. Batson , 476 U. S. at 96-98. Fir

st, the op ponent oftheperemp tor y ch all engemust

establ ish a pr ima facie case of raci al discr iminati on. Second, the one exercising the chall enge must presenta race-neutr

al explanat ion for exercisin g the challenge. Th ird, the trial court i s t o determine whether the reasons gi ven are suff icient or are pretexts for discrimin ation.-16- In Woodson v. Porter

Brown Limestone Company, Inc. , 916 S.W.2d 896, 904 (Tenn. 1996), oursuprem e court h eld that in a ccom plishing the mand ate of Batson , the trialcourt shoul d state cl early on t he record, out side the j ury’s pr

esence, the facts reliedupon fo r finding the presen ce or ab sence of a prima faci e showing. I f the tr ial court finds that

a prima facie showing has been made, then the party se ekin g to exclude the juror m ust have an opportunit y to offer neutral and no ndiscriminatory explanati ons for the exercise of the chal le nge. “Thereafter, t he judge must determine, based on all t he evidence, whet her purposefuldiscri mination has been establish ed.” Id . at 904. While the procedure usedby the trial court did no t explicitly follow these guidel ines, we must concl ude that the trialjudge de termined first that
a pri ma facie case of discr iminati on was establi shed and, second, t hat the trial j udge rejected Defendant’s obj ection by conc luding t hat there was no purposeful discrimi nation by the Sta te. Id . at 905 . Wh ile the trial cour t did not sp ecifically state within the reco rd the rea sons for e ach findin g, t he record of v oir dir e supports t he trialcourt’s ruling as

to Defendant’s Batson objecti on. Upon revi ew of the record, we will not se t aside the rulin gs of th e trial co urt as th ey are not cle arly erroneo us. See Woodson , 916 S.W .2d at 906 (citations o mitted).

After Defendant made a contemporane ous motion for a change of venue during his voir

dire chal len ges, the trialcourt over ruled his motion. Defendant objected on the b asis of the prose cutor’s statement that most every AfricanAmerican in the potenti al jury pool knew the Defen dant. Rule 21(a) of the Tennessee Rules of Cri minal Procedure pr ovides for

a change of venue “if it appears to the court t hat, due to undue excitement aga inst thedefendan t in the county whe re the offense was committed or anyother ca use, a fair trial proba bly could n ot be ha d.” The decision to change venue rests in the so und d iscretio n of the trial cou rt and w ill-17-

not be overtur ned absent a clear abuse ofdiscreti on. Rippy v S tate , 550 S.W.2d 636, 63 8 (Ten n. 1977 ); State v. Melson , 638 S.W .2d 342 , 360 (T enn. 19 82).

In order to revers e a de fenda nt’s convicti on due to the den ial of his mo tion to change venue, the defendant must establi sh thatthe juro rs em pane led to h ear his
case were pre judiced o r biased a gainst him
. State v. Burton , 751 S.W.2d 440, 451 (Tenn. Crim. A pp. 198 8); State v. Evans , 838 S.W.2d 185, 192 (Tenn . 1992), cert
. denied , 114 S.Ct. 740 ( 1993). There i s no evidence i n the record t hat undue excitement

orany other cause threatened hi s right t o a fair t rial i n that count y. The
mere fact that there was e xtensive knowledge of t he crimes and the defendant is not suffic ientto rende r the trial con stitutionally un fair. State v. Kyge r , 78 7 S.W.2d 13, 19 (Tenn . Cr im. App. 1989) (ci tation omi tted). Absent any proof by this Defendant that the juro rs were p rejudiced against h im, we find this issue to be withou t merit.

M OTION FOR MISTRIAL

Defendant argues that the t rial co urt erred in overruling his m otion for a mistrialbase d upo n the p rosec utor’s reference to Defendant’s expunged convict ion during the tri al. Duri ng pretri al motions, t he trialcourt determined thatDefe ndan t’s prior arrest had been properly expunged and, theref ore, the pr

osecution coul d not “go into the underlyi ng circumstances of any cri mes [the Defend a nt] would have committed while he had the gun or any charges againsthim.” Defendant claims that the prosecuti on did present testimony

of and reference these inadmissible matters.

A mis tr ialisan a ppropr iate re me dy when a trial cann ot continue, or a miscarriageof justice wo uld result if it did. State v. McPherson , 882 S.W.2d 365,-18-

370 (Tenn. Cri m. App. 1994) . The decisi on to grant a mi strialrests i n the sound discretion of the trial cou rt, and this court wil l not interf ere with the exerci se of that discreti on absent clear abuse appearing on t he face of t he record. State v. Jones , 733 S.W.2d 517, 522 (Tenn . C rim. App . 1987); State v. Adkins , 786 S.W.2d 642, 644 (T enn. 19 90); McPherson , 882 S.W.2d at 370.
Clearly, the record demonst rates that the prosecutor elicited testi mony regarding the pistol taken f rom the Defendant, but the prosecutor at no instance ever inquired into the underlyi ng circumstances s urrounding the Defe ndant’s a rrest. As previous l y determ ined, the te stimon y conce rning De fendan t’s posse ssion of a revolver was admis sible, and there is no evidenc e of a “manifest necessity” by which the trialcourt sho uld have declared a mistrial. See Arnold v. S tate , 563 S.W.2d 792, 794 (Ten n. Crim. App . 1977).

T ESTIMONY OF JESSE JAMES JONES

Defendant contends that the t rial cour t erred i n excluding some portions of the testimony

of Jesse Jame s Jone s, a cellm ate of t he Defen dant. Specifically, Defendant asserts that the trial court excluded testimony regar ding the Defe ndan t’s lackof abilit

y to use a telephone while i ncarcerated. As t his i ssue was not spec ifically included within t he Defendant’s moti on for new trial, t his issue i s not prope rly before this court an d is, therefo re, waived . Tenn. R . App. P. 3 (e); State v. Clinton , 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

J UDGMENT OF ACQUITTAL-19- Defendant argues that the tria l court erred by failing to gran t a motion for a directed verdict and judgm ent of acq uittal following the conc lusion of the S tate’s proofand at the end of the tri al. The duty

of the trial j udge and the reviewing cou rt
on the determinat ion of a mot ion for a ju dgmen t of acquittal is the sam e as for a motion for a directe d verdict. St ate v. T orrey , 88 0 S. W.2d 7 10, 712 (Ten n. C ri m. App. 1993). This duty is as follows: The rule for

determining a motion for a dir ected verdi ct requir

es the trial judge and the revi ewing court on appeal to l ook at allof the evi dence, to take the st rongest legitimate vi ew of it in favor of the opponent

of the motion, and to allow all reaso na ble inferen ces from it in its favor; to discard all coun tervailin g evide nce, a nd if the n, there is any dispute as to any materialdeter mi native ev idence, or any doubt as to the conclusion to be drawn fr om the whole evid ence, the m otio n must be denied. State v. Thompson , 549 S.W.2d 943, 946 (Tenn. 19 77) ( citing Jones v. State , 533 S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).
Defendant was convicted of murder in t he perpetra tion of robbery and second degree murder, wh ich the trial court merged as one conv ict ion for fe lony murder. At the time of this offense, a reckless ki lling of another commit ted in theperpetrat ion of or attempt t

o perpetrate any robbery or burglary

constit uted first degree mu rder. Tenn. Code Ann. § 3 9-13-20 2(a)(2). H e was a lso convic ted of esp eciall y aggravated robbery. Especi ally ag gravated robbery is the intentio nal or kno wing the ft of proper ty from another person accomplished by a deadly weapon and the victim suffers serious b odily injury. Te nn. Co de Ann . §§ 39-1 3-401, -4 03.

From the record, i t is cl ear that t he evidence i s suffi cient to support the trial court’s refusal to grant these motions. While Defendantfocuses upon the el ement of “premeditat ion” in hi s brief, this mentalstate wasnot requir ed by these offenses and his argum ent is mo ot. In his own statem ent, Defe ndan t adm itted to in tention ally-20-

using a revol ver

to r ob t he v ict im o f hi s storeear nin gs. Whil e th e Defenda nt c lai ms to have accidental ly fi red the handgun, evi dence demonstrated t hat it woul d take a signif icantamount of pressur e to dischar

ge the weapo n. In any ev ent, the reckless
use of the weap on res ulting in the death of the vict im while Defendant committed a robbery is sufficient to c onstitu te c onvictio ns of fe lony m urder and e spec ially aggravated robbery.

L ESSER INCLUDED OFFENSES

Defendant argues that the trial court erre d in refusin g to char ge the jury with the lesser of

fenses of premeditated fi rst deg ree m urder, including volun tary
m ansl aughter

and criminal ly negli gent homicide. Reasoning that there was not adequ ate ev idence o f passion or provocati on, the trial court refused to c harge the jury on t hese lesser of fenses. The trial court charged second degree murder asa lesser offense of

premeditatedfirst

degree murder and charged rec kless homici de as a lesser offen se of felony mu rder.

We note that t he Defendant fai led to i nclude thi s issue in hi s motion for a new trial. Tennessee Rule of Appell ate Procedure 3( e) requir es thatissues in a motion fornew trial be “specifi cally stated . . . ot herwise such i ssues willbe treated as waived.” We do have the autho rity to address t he trialcourt’s failur e to charge t he jury on ap propr ia te lesser offenses as p lain error. Tenn. R . Crim. P. 52(b). Howeve r, for the reasons sta ted hereafter, we find no plain error.

The Def enda nt was c onv icted by thejur y of sec ond d egree mu rder , felony
m ur der and especially aggravated robbery. The trial court merged the offense of-21-

second degree murde r into the conviction for mu rder in the perpe tration of a felony. Likewise, even if t he jury had been c harged with volu ntary manslaughter and crimin ally negligent

hom icid e and had delivered a guilt y verdict on each of t hose counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convi ctions would have been merged by the trial court into theconvicti on for fel ony murder. The result would have been t he same as Defendant’s current convi ction fo r felony murder. There fore, any e rror in failing to charge these of fenses is harmless. Tenn. R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).

P ROSECUTORIAL M ISCONDUCT

Defendant asserts i n his bri ef that t he State’s pr osecutor conducte d him self inapp ropria tely throug hout th e trial by fa iling to co mply with discov ery, im perm issibly communicating with a wit ness during t rial recess, and noting Defendant’s expunged convicti on during the t rial. Defendant’s moti on for new trial specifi cally as serts that the trial court e rred “in all owing the State to argue duri ng the sentenci ng phase, matter whic h was outside t he scope of the aggr avating f

actors present

ed by the State.” There is no mentio n in his moti on for new trial of any communicati on by the prosecutor

with a wit ness during t he trialor of any failur e by the State to com ply with discovery. During the Defendant’s hearing on the motion for new t rial, his counsel orally requested that

the porti on of his moti on referenci ng the “sentenci ng phase” of the trial be struck as the D efenda nt receive d the m inimum senten ce with regards to all counts. A s the De fendan t’s rema ining ass ertions of p ro secutorial misconduct
were not sp ecifica lly includ ed with in his m otion fo r new tr ial, this issue is not pro perly before this cour

t and is, t herefore, waived. Tenn. R. App . P. 3(e); State v. Clinton , 754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).-22- After a thorough rev iew of the l aw and the records in the case sub judice , we affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ PAUL G. SUMMERS , Judge