# FILED
July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) NO. 02C01-9612- CR-00455 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHR IS CRA FT, JUDGE DA RRYL S. WILKS, ) ) (Attempted Voluntary M anslau ghter ) Appellant. )

FOR THE APPELLA NT : FOR THE A PPELLEE : THOMAS E. HA NSOM JOHN KNOX WALKUP 659 Freeman Attorney Gen eral and Repor ter Memphis, TN 38122 EL IZ ABE TH T. RY AN Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 JOHN W. PIEROTTI Distric t Attorney General JAM ES M. LA MMEY Assistant

District Attorney G eneral 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE2 OPINION

The defendant, Darryl S. W ilks, was convict ed bya Shelby C ounty jury of attempted voluntarymanslaughter. On appeal, he challeng es the verd ict as being contrary to the law

and the evidence pr

esented. He further

contends that thetrial court’s curative instructions in response to a prosecuti on witness ’ statementwere prejudicial . We find no error and affirm the judg ment of the trial court.

FACTS

The state’s proo f at trial showed that on March 13, 1994, Prescill a Davis and her brother, Patrick Davis, were packing M s. Davis ’ belonging s at the home of the defendant. Ms. Da vis ha d bee n livin g with t he de fen dan t fo r app roxim atel y five years and was mov ing out of the home. After they had f inished packing, Ms. Davis and Mr. Dav is left the defendant’s house. On their w ay ho me, Ms. Dav is could not fin d her purse. She called the defendant to ask him to l ook for the purse. When he could not find it , she asked if they could come back to his h ouse to look for i t. After she unsucc essfully s earched the house, she asked the defendant if he had se en the purse. The defendant denied having seen the purse and accused Ms. Davis of wearing another man’s jacket. At this poi nt, the defendant threate ned Ms. Da vi s and Mr. Davis and told them to get out of hi s house. As he and his si ster were leaving , Mr. Dav is noticed that the defendant had picked up a gun. M r. Davi s turned around to say something to t he defendant, and the defendant hit him in the mouth. The de fendant f ollowed Ms. Davis o utside and pointed the gu n at h er. Ms . Davis turn ed to run a way, and the defendant shot her in the shoulder. Mr. Dav is then tri ed to grab the defendant to p reven t him from shooting his sister

again, and the defendant shot him in both arms. At this time, Ms. Davis was lying on her back, and the defendant stood over her and shot her again in the chest. As Mr. Davis and Ms. Davis ran across the street to get away from the3

defendant, Ms. Dav is heard another shot. The defendant testified on his own b ehalf. He stated t hat Ms. Dav is and her brother returned to hi s house unexpec tedly. Bec ause he was a former undercover narcotics offic er, he frequently answered t he door carry ing a firear m at his side when h e was not ex pecting anyone. After Ms. D avis acc used him of taking her purse, he asked both of the m to leave. Mr. Davis a nd t he defendant started fightin g, an d the gun fell dow n the defendant’s pants. As the defendant was reaching for the weapon, Mr. Davis grabbed the gun. Mr. Davis and the defendant struggl ed, and the gun fired se veral times, hitting M r. Davi s and Ms. Dav is. The defendant then went i nside to call an ambulance. The defendant was i ndicted on two (2) counts of attempted first deg ree murder. However, the jury found him guilt y of the lesser i ncluded offense of attempted voluntary

manslaughter of Ms. Davi s. The jury found him not guil ty ofthe attempted hom icide of Mr. Davis.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that the guilty verd ict was contrary to the law

and the evidence presented. Spec ifically , he claims that the verdi cts were inconsistent and represented a “compromise verdict. ” Therefore, he claims that no rational t rier of fact could arri ve at this verdict without a “total disr

egard for the l aw.” The defendant insists

that the ver

dicts we re inconsis tent and represented a compromise by the jury. There is no req uirement of consis tency in a jury verdict. Wiggins v. State , 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe , 851 S.W.2d 833, 836 (Tenn. Cri m. App. 1992); Stat e v. Hicks , 835 S.W.2d 32, 36 (Ten n. Cr im. App. 1992). An acq uittal on one count of an indi ctment cannot be cons idered res judicata to another count even thou gh both counts stem from the s ame criminal transaction. Wiggins , 498 S.W.2d at 94; Gennoe , 851 S.W.2d a t 836; Stat e v. Bloodsaw , 746 S.W.2d 722, 726 (Tenn. Crim. App. 1987). “This Court wi ll not upset
a seemingly

inconsistent

verdict by specul ating as to the jur y’s reas oning if we are1 The jury mig ht well have found

adequa te provocation due to the argument between Ms. Davis a

nd the def endant. 4 satisfied that the evi dence establis hes guilt of the offense upon which the convic tion
was returned.” Wiggins , 498 S.W.2d at 94. Therefore, the only issue is w hether the evidence is suff icient to sustain the verdic t of gu ilt o f attempted voluntary manslaughter of Ms. Davis. This cou rt wil l not distur b a verdic t of guilt due t o the sufficiency of the evidence unless the defendant de monstrates that the facts contained in the record and the infer ences which may be draw n therefrom are in sufficient, as a matter of law, for a rational trier of fact to find the accused gu ilty bey ond a reasonable do ubt. State v. Brewer , 932 S.W .2d 1, 19 (Tenn. Crim. App . 1996). It is the app ellat e court's duty t o affirm the convi ction if the ev idence was sufficient for any

rational trier of fact to have fo und the essential ele ments of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317 , 99 S.Ct. 2781, 2789, 61 L. Ed.2 d 560 (1979); State v. Caz es , 875 S.W.2d 253, 259 (Tenn. 1994). We need not speculate as to the jur y’s acq uittal on the at

tempted murder of Mr. Davis w hile finding the defendant guilty of attempted volunt ary manslaug hter of Ms. Davis. Howev er, we dofind sufficien t evidence in the recor d for a rational trier of fact to conclude t hat the defendant attempted to kill Ms . Davis while he w as in a state of passion. 1 This issue i s without merit.

TRIAL COURT ’S CAUTIONA RY INSTRUCTIONS

In his final ass ignment of error , d efe ndant alleges that the trial court improperly commented on the evidence when the court made caution aryremarks to the jury

in response t o a statement made by Ms. Davis. When asked by the prosecutor

if sh e tol d the def end ant wh ere s he wo uld be living, Ms. Davis responded that she was “scared to tell him where [she] was going to be stayi ng.” After an objection by

the defense, the tri al court ins tructed the juryand Ms. Davis5

as follows: THE COURT: Ladies

and g entlem en, this w itness said something about, I w as af r aid to tell hi m where I l ived. And l et me tell you that that has absolutel y nothing to do wit h this case. And I will t ell you now , ma’am, that if you mention anythi ng about being afraid of him or this or that again, I can fin d you i n contempt of cou rt and send you to jail for 10 days. THE W ITNESS: Yes, sir. THE COURT: You are not to mention anything abou t being afra id

. You’re not to try to do anything like that. We’re interes ted in what happened on this date of March 13, 199 4. W e’re not interested in anything that may happen i n the future or in the past or w hat she thinks migh t happen or mig ht not happen; it’ s just w hat happened. So I’ m g oing to ask you to complet ely disr egard any

kind of thing in her mind about

whether or

not she want ed this man to tel l her to live [s ic] because that ’s not proof in t his case. C an y’all do that? All rig ht. Thank you. Subs eque ntly, the defendan t made a motion f or a mistrial as a result of these remarks. The tr ial court den ied his motion. The defendant claims that this instruction to the jury might have inadvertently emphasized Ms. Da vis’ te stim ony. He argues that when the trial court admonished the witness , this migh t have evoked sympathy in the minds of

the jury forthe v icti m, Ms. Davis. Init ially, we find nothing inappropriate about the trial court’s comments to the juryand the wit ness. Sec ond ly, there is no ev idence in the record to suppor t the allegation that these comments prejud iced the defend ant in any way. The trial court asked that the j ury disr egard Ms. Davis’ statement. The jury is p resu med to ha ve followed the trial cour t’s cu rative instr ucti ons, abse nt evi den ce to the c ontr ary. State
v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994); State v. William s , 9 29 S.W.2d 385, 388 (Tenn. Crim. App. 1996); State v. Melvin , 913 S.W.2d 195, 201 (Tenn. Crim

. App. 1995).

Furthermore, the trial court did not err in deny ing the defendant’s motion for
a mistrial. The decision to grant a mis trial li es within the discreti on of the trial court and will not be disturbed on a ppeal unle ss the trial court abuses t his discretion. State v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990). The trial cour t did notabuse6

its discretion in deny ing the motion for a mistrial . This issue has no merit.

CONCLUSI ON

We conclude that the evi dence presented i s sufficient for a reasonable trier of fact to find the de fendant guilty of attem pted voluntary manslaughter. A ddit iona lly, the tr ial c ourt’ s curativ e commen ts to t he jur y w ere not

imp roper no r prejudicial . According ly, the j udgment of the tri al court is affirmed.

JOE G. RILEY , JUDGE

CONCUR:

PAU L G. SUMM ERS, JUDGE

DAVID H. WELLE S, JUDGE