# FILED
November 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9708-CR-00313 Appellee, ) ) Shelby County v. ) ) Honorable Chris Cra ft, Judge MARCUS A. TERRY, ) ) (Vehicular Homicide) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Gerald Stanley Green John Knox Walkup 147 Jefferson Avenue Attorney General & Repor ter Suite 404 425 Fifth Avenue North Memphis, TN 38103 Nashville, TN 37243-0493 (On Appeal) Peter M. Coughlan Coleman W. Garrett Assistant Attorney Gener al 200 Jefferson Avenue 425 Fifth Avenue North Suite 850 Nashville, TN 37243-0493 Memphis, TN 38103 (At Trial) William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947 Daniel R. Woody Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947 Patience R. Branham Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FILED: ____________________________

_ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N
The appellant, Marcus Terry, referr ed herein as the defendant, appeals as of right from the judgment

of the Shelby

County Criminal Cour

t as a result of a jury v

erdict finding him guilty of two c

ounts of v

ehicular homicide and assessing fines of $10,000 for each offense. The trial court imposed sentences of fifteen years, as a career offender, for each offense to run consecutively with a number ofunrelated offenses. The defendant presents two appellate issues:

1. Whether or not the appellant’s conv icti on must be reversed when the evide nce int roduced at trial fairly raised either the defense of duress and necessity but the state did not prove the non-applicability

of those defenses by proof beyond a reasonable doubt and only proved theappellant’s mental state of recklessness by cir

cumstantial evidence. 2. Whether or not the trial court abused its discretio n whe n the trial court refuse d to accept the guilty plea of the appellant during the tr ial, based on reasons unrelat ed to the voluntariness of the appellant’s plea.
After a revi ew of the

entire eviden ce in th is reco rd, the b riefs of the parties, and the applicable law, we

affirm the trial court’s ju dgments.

FACTUAL BA

CKGROUND

On April 11, 1995, Mrs. De borah Hill, andher sister, Mrs. Walterine Crowder, were killed in an automobile collision in Shelby County. Amberly Hi ll, two-year-ol d daughter of Mrs. Deborah Hill, was injured in this collision.

John P. Hardy, special age nt for th e Tennessee Bureau of Investigati on, testified
on April 11, 1995 he was empl oyed by the Germantown Poli ce Department as a patrolman. On April 11, 1 995, Officer H ardy and Offi cer Chad Cun ningham were on traffic patrol observingwestbound traffic on Poplar Avenue. Officer Hardy observed a gray Buick, travelingwestbound on Poplar wi thout a license plate on the rear bumper. The platewas illegally displayed in the rear windshield. Officer Cunningham pulled in behind the Buick3

to investigate. Officer

Hardy observed the pl ate had an expired October, 1994 tag on it. Officer Cunningham turned on his blue lights in an attempt to st op the Buick. The driver slowed down a nd two pass engers gestured to the s ide of the road indicating the driver would pull over. Both the Bui ck and the police car w ere in the middle lane, and Of fic er Hardy believed the driver was going to pull over behind an 18- wheeler in the rig ht lane. Instead, the Buick sped up and got in front of the 18-wheeler. Officer Cu nningham followed behind the Buick.

Suddenl y, Officer

Hardy observed

a large puff of smoke come from the Buick and “it just took off at an extremely high rateof speed.” Officer Hardy estimated he and Officer Cunningham were going about 50 milesper hour when the Buick took off. Believing it w as a traffic stop, the officers reduced their spee d since “[they] didn’t have a chance if [they’d] wanted to stay with them and try to catch them.”

As the squad car approached the interse ction of Kirby Road and Poplar Av enue, Officer Hardy observed smoke and debris and realized there had been a major accident involving the gray Buick. Officer Hardy saw the Buick’s engine and transmission were torn from the body of the ca r. Officer Hardy also s aw a Peugeot that had been str uck by the Buick. Officer Hardy went to the Peugeot where he found the two women and a small child crying. Offi ce r Hardy was rel ieved by a paramedic and another person, who identifie d himself as a physician, and these two assisted the two women in the Peuge ot. Of ficer Hardy proceeded to the Buick and sawthe defendant in the driver’s seat holding the steering wheel. Thedefendant wasslumped over in a semi-da zed position. A passeng er in the backseat sat up and then lay down again. Officer Har dy saw a small scratch on the defendant’s head and a cut on his ear. In the meantime, Officer Cunningham was chasi ng a suspect who had run from the Buick. At 4:45 p.m., Off icer Ha rdy ob served this intersection was heavily tr aveled. Before leaving

the scene, Of ficer Har dy did not observe any unusual activity in the Buick. Officer Hardy was aware tha t a .45-caliber automatic pistol was found in some hedg es adjacent to the accident sc ene.4 Mr. Leslie W. Bjorklund, Jr., a Federal Express pilot, test ified he and his young daughter were traveling

eastbound on Poplar Avenue. At the i ntersection of Poplar Estates and Poplar

Avenue, Mr. Bjorklun d observed a police car,with its blue lights on, foll owing
an older model car

westboun d on Popl ar. Sudde nly, Mr. Bjorklund saw a “gray or dark-ish colored plume of smoke exiting from the r ear of that car” and the car sped away from the police car. Mr. Bjorklund estimated both the older car and the police ca r were t raveling about 40 miles per

hour when they passed hi m. Mr. Bjorklund looked over his left shoulder through the rearview mir ror and estimated the older car accelerated to 70

miles per hour.

Mr. Christopher Graham testifie d he was westbound onPoplar Avenue on April 1 1, 1995, occupying the middle lane of the three westbound lanes. Mr. Graham estima ted his speed at 40 miles per hour when a gray Buick passed him on the left and swerved into his lane. Mr. Graham testified th e gray Buick was going about 90 miles per hour.

On April 11, 1995, Mrs. Ho llye Harrison-Guy wasin her office on the sixth floor of
a building on the

corner of the intersection of Kirby and Poplar. Mrs. Harrison-Guy heard
some sirens and looked out her w indow down to the inter section. She observ ed a dark automobile go through the inters ection “extremely fast. ” This car was w estbound on Poplar. Mrs. Harrison-Guy heard a loud explosion and saw something come up int o the air and fall back down to the gr ound. She then observed a westbound police car s lowing to
a stop at the intersection. M rs. Harrison-Guy estimated the speed of the dark car at 70 miles per hour or more.

Officer Chad Cunningh am, pa trolman with the Germantow n Police Department, tes tifi ed he and Officer Hardy wer e sitting in their sq uad car observing tr affic on Poplar Avenue. Officer Cunningham saw a g ray Buick westbound on Poplar with an illegally displayed license pl ate in the rear window. The B uick had three occupants. Officer Cunningham followed the Buick in an attempt to stop it. As

Officer Cunningham activate d his blue lights, the tw

o passengers turned and look ed at the o fficers and the driver gestured as if he was going to pull over. Howev

er, the driver sped up, changed lanes, and5

pulled in front of an 18-wheeler. Officer Cunningham pulled in behind the Buick, believing it would stop. Instead the driver accelerate d to an extremely hig h rate of speed, pulling away from the squad car

at an estimated speed of 80 miles per hour. Officer Cunningham observed a puff of smoke come from the rear of the Buick. O fficer Cunningham then “broke off” any attempt to stop the Buick, since it was a traffic stop. When Officer Cunningham approached the i nte rse ction of Poplar and Kirby, he observed a large cloud of white smoke and debris in the air and realized an accident had occurred. Officer Cunningham radioed for paramedics, f ire equipmen t, and assistance. Officer Cunningham saw the Buic k down the road and a Peugeot on the south side of Poplar with damage to the driver’s side. As Officer Cunningham got out of his squad car, he heard a bystander yelling “there he goes, there he goes.” Officer Cunningham saw one of the occupants of the Buick running southbound through some trees.

Officer Cunningham testified he chased this individual whil e his partner went to the Peuge ot. Officer Cunningham chased this individual to Poplar Pike where the individ ua l pulled a lady from her vehicle. Officer Cunningham attempted to talk the individual out of the car, but the individual put the car in drive, pushed two cars out of his wa y, and t ook off at a high rate of speed. After the Me mphis Police arrived,Officer Cunningham returned to the accident scene and saw the other

two occupants

in custody. Officer Cunni ngham testified he went to an area south of the accid en t scene and observed a pist ol that had been found by a bystander.

Mr. Richard Ha ll, Capta in with the Germant own Police Department, testified he was called to an accident sc ene at Po plar and

Kirby . Captai n Hall t

ook phot ographs of t h e acc ident scene, a beeper, and a pistol. Captai n Hall identified the pistol as a Llama .45 automatic with six live rounds in the magazine.

M r. J ohn Barry O’Neill,Jr., a firefighter/paramedic with Special Operati ons of the Memphis Fire Department, testified he was standing in the parking lot of his apartment complex when he hear

d squealing

tires and a major imp act or explosion. Mr. O’Neill6

looked up and saw a gray B uick that was airbor ne. The Buick had spun 180 degrees and
was traveling backwards through the air. Mr. O‘Neill saw parts of the Buick’s engine and other parts flying in all

directions. Mr. O’N eill also observed an i ndividual running, w ho he thoughtmight b e an injured occupant. Mr. O’ Neill told his roommate, J oe Merritt, a paramedic with the Germantown Fire Department, to gra b his me dical equipment. Mr. O’Neill got his first-aid equipment and ran to the Peugeot while M erritt ran to the Buick.In the Peugeot, Mr. O’Neill found two w

omen and a sma ll child. Thetwo women were seriouslyinjured, and Mr. O’N eill gave them what first-aid he could, while helicopters were summoned to take the women to the hospital. Mr. O’ Neill described both w omen as being in critical condition

.

Ms. Ghedda Cianciola testified sh e was eastbound on Poplar in the l eft lane at Poplar and Kirby. Ms. Cianciola testifie d she saw a car coming at her, but the car went past her. Asshe watched in her rearview mirror, this oncoming car struck a car behind her. Ms. Cianciola described the impact sound like “a tank running into -- you just heard metal, just impact, and you could see stuff just flying all throug h the air.” Abo ut this time, Ms. Cianciola saw a poli ce car arrive at the intersection.

Mrs. Kelli Wink el testified sh e was driving her 1994 Do dge Caravan eastbound on Poplar in the turning lan e, attemptin g a left turn into McDonald’s. Mrs. Winkel’s nine-yearold daughter

was in the right front seat. Mrs. Winkel testified she looked up and s aw “a car speeding at me, probably 60,70, 80 milesper hour coming right at me, and I’m thinking, I’m fixing to die.” Mr s. Winkel burie d her head and threw up her han d to protect her daughter. She then heard a loudexplosion, looked up, and s aw a car behind her

had been struck. Mrs. Winkel looked at the car beside her and saw a m an get ou t of the car and start running. The driv er of this car was slu mped over the wheel.

Dr. Jerry T. Francisco, Shelby

County Medical Ex

aminer, testified he performed an aut opsyon Mrs. Walterine Crowder. D r. Francisco testified M rs. Crowder died f ro m multiple injuries consistent w ith an automobile collision . As to Mrs. Deborah Hill, Dr

.7

Francisco conducted a post-mortem examination ofher body and found Mrs. Hill died from multiple injuries as a result of blunt trauma to the body. Mrs. Hill’s multiple injuries were consistent

with an automobile collision. D r. Francisco found no other cause of death for both women other than multiple injuries.

In his own behalf, the defendant testified that he received a call fro m a friend, Rodney McClinton, in which McClinton r equested him to take McCli nton to the correctional center to pick upsomething. McClinton asked if a mutual friend, Willie Harris, coul d ride with them. Upon leaving the correctional center, the defendant got on Poplar Avenue since it would take

him back to the city. The defendant was dr iving a gray Buick Regal westbound on Poplar when he saw a police cruiser to his right. McClinton was in the rear and Harris was in the right front seat. The defendant tes tified the police cruiser got behind him and activated its blue lights. Harris told the defendant “to keep going , don’t stop.” The defendant attempted to pull over, but an 18-whe eler wasblocking him. The defendant turned and gestured to the officers that he was going to pull over, but Harris pulled a gun and told him to keep going.

The defendant testified h e tried t o reason with Harris, but Harris just said “don’t stop.” At this time, the defendant estimated his speed at fiv e miles per hour over th e speed limit. The defendant testified as they approached the

hill at Poplar and Kirby, Harris turned to him and struck him in the head. Then, the defendant hit the gas and w ent through the intersection. The

defendant testified he cleared the int ersection and saw a car turning in front of him and the car panick ed a nd stopped. The defendant te stified he was not sure where the impact occurred, but estimated his speed at 65 miles per hour. The defendant informed the jury he was driving at this s peed because he was forced to.

The defendant testified the accident w as caused by “Willie Harris, his conduct, and
a third vehicle cause d me to swerve out of course to avoid hit ting i t and caused this accident.” The defendant testified Har ris did not indicate

why hepulled the gun, but just kept saying, “keep goi ng, don’t stop.” The defendant did not stop the car because he did8

not want to be shot. The defendant testified hehad known Harris for s ometime, but they
were not close friends and both had been i n prison before. The defendant admitted he called Harris “Prune,” and H arris called the defendant “Tony or B-Bunny.” The defendant admitted he had ap proximately elev en felony convictions, i ncluding auto theft, grand larceny, robbery, and possession of controlled subs tances for sale.

In rebuttal to thedefendant’s testimony, Ms. Sha ron Vanessa Williams, testified that the defendant, known to her as “B-Bunny,” c ame by her ho me on April 11, 1995 at approximately 11:00 a.m. The defendant waslooking for “Prune.” It was Ms. Williams’s understanding the defendant and Harris wer e close f ri ends. Willie Harris had spent the nightat Ms. Williams’s home, and Ms. Williams did not s ee Harris with a g un while at her home. After the accident, Ms. Williams lear ned Harris was out on an escape charge.

Based upon this evidence, the jury found the defendant guil ty o f two counts of vehicular homicide.

APPELLA TE ISSUES A. DEFENSE OF DURESS OR NECESSITY

The defendant argues that the eviden ce at trial raised t he defense of duress or necessit y, but the State failed to rebut these defenses beyond a reasonable doubt and only proved the defendant’s mental state of reckles snes s by cir cumstantial evidence. The defendant contend s he put o n proof that a passenger pulled a gun and forced the defendant to drive in a n erratic and unsafe manner, and the St ate has not refuted or impeached this evidence. The St ate maintains thedefendant failed to request a special instruction on duress or necessity . The briefs of both parties seem to indica te the trial court did not charge either dur ess or necessity

at the conclusion of the trial. H owever, the trial court did cha rge the d efendant’s request for a charg e on duress as a defense. Therefore, we must determine if the ev idence raised the defense of necessit y.9 Tennessee Code Annotated § 39-11-609 states, except as provided in §§ 39-11- 611 - 39- 11-621, conduct is justified if: (1) The person reasonably belie ves the conduct is immediately necessary to avoid i mminent harm; and (2) The d esi rability and urgency of avoiding the harm clearly out weigh, according to ordinary standards o f reasonableness, the harm sought to be prev ented by the law proscribing the conduct.
In this case, the defendant did not request an ins truction of necessity

as a defense. However, it is the duty of the trial court to give a complete c harge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). The test for whether a special instruction must be given is whether “there is any evidence which reasonable minds could accept as to any such [defense]. . . .” Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975). If admissible evide nce fairly raises either the defense of duress or necessity, the tri al court must submit the defense to the juryand the prosecution must “prove beyonda reasonable doubt that the defense do es not apply.” State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994) (a case involving the offense of esc ape and the criteria for the defense of necess ity).

The Sentencing Commission, in consideration of the Tennessee Sentencing Act of 1989, commented that the defense of necessity excuses cr im inal liability in those exceeding rare situations where criminal activity is an objectively reasonable response to
an extreme situation. Nec essity has traditi onally been used appropriately w hen the extreme situation is br

ought on by something other than a human act. Neil P. Cohen, et al., Prevalence and Use of Cri minal Defenses: a Prel

iminary Study, 60 Tenn. L. Rev. 957, 966 (1993). The defense of necessity c omes about “under the force of extreme circumstances, conduct which would otherwise cons

titute a crime is justifiable and not criminal; the actor en gages in the conduct out of necessity to prevent the greater harm from occurring.” Charl es E. Torcia, Wharton’s Crimina l Law, § 90 at 614 (15th ed. 1993). This Court has acknowledged that a defense of necessity may be appropriate in certain facts. State v. Green, 915 S.W.2d 827, 832 (Tenn. Crim. Ap p. 1995); Culp, 900 S.W.2d1 Harris was prosecutedfor his role in this accident, including his flight and carjacking to escape the scene. On advice of counsel, Harris inv oked his Fifth Amendment rights and did not testify at the defendant’s trial. 10 at 710; State v. Bobby Ray Jenkins, Hawkins County N o. 03C01-9202-CR-0005 0 , 1992 LEXIS 742 (Tenn. Crim. App., Knoxv ille, September 18, 1992) ( the defendant, intoxic ated,
was found with his foot on the brake of a car in the middl e of the street; defendant claimed
a friend went for help and the defendant put his foot on the brake to keep the car from rolli ng down a hill, and the engine was running to support the power brake syst em). However, this co urt has reject ed clai ms of e rro r in a trial court’s refusal to charge the defense of necess i ty in crimes of viol ence. State v. Albert Christi an Padgett, Hamilton County No. 03C01-9704-CR-00138, 1 998 LEXIS 834 (Tenn. Crim

. App., Knoxville, August 14, 1 998) (defendan t and companion kidnapped victi m and brutally raped vi ctim; defendant alleged he was in fear his co-defendant would shoot him with shotgun if defendant did not participatein rape); State v. Scotty Davenport, Davidson County No. 01C01-9611
- CR00477, 1998 LEXIS 212 (Tenn. Crim. App., Nashville, Febr uary 11, 1998) (defendant robbed a store to buy drugs for his addiction; defendant claimed h is family was threaten ed bydrug deale rs from o ther bad drug deals ; defen dant fa iled to sh ow, in aggrava t ed robbery, that he was in imminent harm and aggravated robbery was only alternative).

In this case a n d based on the defendant’s testimony,the trial court submitted an instruction on duress to the jury. The defendant alleged his longti me friend pulled a gun
on him, struck him, and told him to drive faster. 1 Although, the defendant testified he was drivi ng at 65 mil es per hour at the time of impact, the overwhelming number of other witnesses

estimated the defendant’s rateof speed fro m to 70 to 90 mile s per hour through
a heavily traveled in tersectio n. The defendant’s estimation of his speed i s questionable. The State countered the defendant’s testimony of his fear of Harris with the t estimony of Sharon Vanessa Williams, who indicated the defendant and Harris ( “Prune”) w

ere longti me friends.

Even if we accept the defendant ’s testimo ny as true, the defendant has not established the additional charge of necessity w as required. The

defend ant has n ot shown11

that the risk to him of defying his longtime friend clearly outweighs, according to ordinary stan dards of reasonableness, the obvious danger of driving 70 miles per hour into a crowde d intersecti on in the middle of rush hour traffic. From our review of the evidence in this record, the

defendant’s testimony as to the cause of his erratic d riving supports th e charge of duress more than that of necessity. Un der th e facts in this record, w e find a charge of necessity was not w arranted. Also, as a sub-i ssue, the defendant contends that the State failed to establish the defendan t’s state of mind as to the element of recklessne ss required in a vehicular homici de, in that thejury could have concluded the Bui ck was out of control for a number of reasons.

A criminal offense may be established exclu sivel y by circumstantial evidence, Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). However, before an accused may be convicted of a criminal o ffense based upon circumstantial eviden ce alone, the facts and circumstances

“must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” In other words, “a w eb of guilt must be woven around t he de fendant from which he cannot escape and from which facts and circu mstances th e jury could draw no other reasonable inference sav e the guilt of the defendant beyond a reasonable doubt.” State v. Crawford, 470 S.W .2d 6 10, 612-13 (Tenn. 1971); State v. Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

From the evidence in this r ecord, we find ample circumstanti al evidence to support the jury’s verdi ct as to th e defen dant’s re cklessne ss in caus ing these two fatalities. There is no merit to these issues.

B. TRIAL COURT AB USED DISCRETION IN REFUSING A

GUILTY PLEA

As to his l ast appe llate i ssue, th e defe n dant contends the trial court improperly denied him the right to enter a plea ofguilty pursuant to Tenn. R. Crim. P. 11. The State12

counters the trial court did not abu se its discretion in r ejecting thedefendant’s attempt to plead guilty during

the State’s proof in chief.

After the testimony of John Barry O’Neill, Jr., the record indicates the defenda nt wished to accept an offer of settlement of these charges upon a guilty plea. The State indicated it would offer the defendant two six -year sen tences to run consecutive ly upon pleading guilty. The trial court rejected the guilty pleas. In rejecti ng the guilty pleas , the trial court stated:

Well, I have here a No tice of Enhanced Punishment, says this defendant’s been convicted of petit larceny, grand lar ceny, auto larceny, robbery, robbery, ro bbery, rob bery, robbery, robbery, grand larc eny, grand larceny, agg ravated assault, grand larceny, drivi ng while license revoked

and reckless driving, which doesn’t enhance his punishment, possession of a weapon, theft over ten thousand do llars, three felony drug cases. Now, if this were true, that would make him acareer criminal, which means the least he could get on one of these would be 15 years at 60 percent. I’ve heard proof so far in the trial that he drove 90 mi les an hour, killed two ladies, with a small child w ho is apparently st ill severely traumatized. And if convicted the least sente nce he could get is much mor e than 12 ye ars. A nd it would shock my conscience to allow this case to

be settled on a

basis like that. Basically that would be just giving this case away. I just don’t think that’s proper. If he’s found not guilty, that’s fine. But to my mind, 12 years is n o t even the mini mum that he could get on one indictment if he’s convicted, if the notice is true. Of course, we haven’t had a sentencing hearing.
To find that a trial court has abused its discretion in r efusing to accept a plea of guilty, it must appear that no substanti al evidence supports the conclusion of the

trial court. Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995). Also, the trial court has the ultimate decision to accept or reject a guilty ple a with in its sound discretion. Farmer
v. State, 570 S.W.2d 359, 361 ( Tenn. Crim. App.), cert. denied (Tenn. 1978). The trial court did comply with Tenness ee Rules ofCriminal Procedure 11(e )(4), Rejection of a Plea Agreement. One valid reason for rejecting a plea agreement is that the proposed sentence is conside red too l enient u nder the circum stances

of aparticular case. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995); State v. Todd, 654 S.W.2d 379, 382 (Tenn. 1983). Also, the trial court must determine if the plea agreement is helpful in the administrationof justice and is in the best interest of the pub lic. State v. Williams, 851 S.W.2d 828, 831 (Tenn.2 The trial court felt that the admi nistration of justice would not be served by the pl ea

agreement. The trial court was c oncerned with the defendant’s beh avio r and demeanor during the trialby

interrupting the proceed ings with his ow n objections, pretending to not understand simple things, and attemptin g to lay the groundw ork for a post-convicti on petition by complaining about his retained counsel. 13 Crim. App.), per. app. deni ed (Ten n. 1992) (citing United States v. Bean , 564 F.2d 700, 702-04 (5th Cir. 1977)).

In this case, thetrial court was clearly conc erned with the leniency of the proposed plea agreement especially in a case where the defendant drove an automobile at int erstate spee ds into a c rowded intersection a

t rush h our, in

an effort

to evad e law enfo rcemen t officers. 2

In conclusion, we find there was substantial evidence to support the tria l court’s rejection of the defendant’s mid-trial plea.There is no merit to this issue. The trial court’s14

judgment is affirmed.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ DAVID G. HAYES, JUDG E