State of Tennessee v. Terry Dean Sneed

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1998 November 5, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9702-CR-00076 ) Appellee, ) ) ) UNICOI COUNTY VS. ) ) HON. ARDEN L. HILL TERRY DEAN SNEED, ) JUDGE ) Appe llant. ) (Aggravated Robbery, Aggravated ) Kidnapping, Aggravated Rape)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF UNICOI COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RAYMOND C. CONKIN, JR. JOHN KNOX WALKUP 320 Cherokee St., Suite B Attorney General and Reporter Kingsport, TN 37660 ELIZABETH B. MARNEY Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

DAVID CROCKETT District Attorney General

STEVEN R. FINNEY Assistant District Attorney General Carter County Courthouse Annex Elizabethton, TN 37643

LISA NIDIFFER Assistant District Attorney General Courthouse Erwin, TN 37650

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION The Defendant, Terry Dean Sneed, appeals as of right from a Unicoi

Coun ty jury verdict convicting him of aggravated robbery, aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated rape.1 The trial court sentenced him to a total of one hund red an d twen ty-four ye ars; wh ile the sente nces for the ra pe co nviction s qua lify as R ange II, multip le offender, the other sentences are Range III, persistent offend er. Th e Def enda nt app eals h is conviction . We affirm the ju dgme nt of the trial co urt.

The Defendant argues eight issues on appeal: (1) that the evidence in the record is n ot sufficient to supp ort a find ing tha t the D efend ant is guilty of aiding and abetting aggravated rape beyond a reasonable doubt; (2) that the evidence in the rec ord is n ot suffic ient to s uppo rt a findin g that th e Def enda nt is gu ilty of aggravated rape, aggravated robbery, and aggravated kidnapping beyond a reaso nable doubt; (3 ) that the trial co urt erred in allowing the victim’s pretrial statement to be introduced as evidence and made an exh ibit which was acce ssible to the jury during delibera tions; (4) that the trial court erred in allowing the State to amend the indictment on the day of trial; (5) that the trial court erred in overruling the D efenda nt’s motio n to dism iss two co unts of the indictme nt, which he arg ues w ere err oneo usly drawn and d uplicito us in nature; (6) that the trial court erred by instructing the jury on the issue of flight; (7) that the trial court

1 We note that both the indictment and the judgment form entered by the trial court refer to this crime as “aiding and abetting aggravated rape.” Under the 1989 revision of our criminal code, what was formerly the crime of “aiding and abetting” is now known as “criminal responsibility for the conduct of another.” See Tenn. Code Ann. § 39-11-402. However, on appeal, Defendant does not raise as an issue any irregularity concerning terminology, and even if he had done so, the error would not be fatal. For the sake of clarity, we will employ the terminology used by the trial court for the remainder of this opinion.

-2-erred in overr uling the Defendant’s motion for mistrial after a police officer testified that the co-defendant had given statements which led the officer to believe that the Defendant was guilty; and (8) that the trial court erred in finding the D efend ant co mpe tent to s tand tria l.

The victim in this case was an employee at the Stop-In Market in Carter County, where she generally worked the night shift from eleven o’clock p.m. u ntil seven o’clock a.m. On No vemb er 29, 19 92 at ap proxima tely one-th irty a.m., shortly after the victim’s co-wo rker left fo r the nig ht, leavin g the vic tim alo ne in the store, two males entered the market. The two men, who were captured on video surveillance tape, were armed with knives. They approached the victim and demanded that sh e get a bag a nd fill it with all the money in the cash registe r. The victim testified that both m en threa tened to kill her if she did not cooperate, and the victim a ccede d to their demands. The men then dragged her from the store and forced her into a car, wh ere the co-de fenda nt, Billy Joe Smith, shoved her head to the floorboard and held it there.

The victim testified that the Defendant drove the car to a cemetery. At the cemetery, the Defendant and Smith began drinking Mad Dog 20/20, which they also forced the victim to drink at one point during the night. Smith ordered the victim to remove her clothes. At that time, the D efenda nt stated, “J ust kill her. . . . [G]et it o ver with . I’m sick of hea ring he r cry.” Sm ith then raped the victim at knifepoint on the gr ound o utside wh ile the De fendan t watche d from th e car. The victim testified that immediately after the rape, the Defe ndant stated, “Give her up to me, it’s my turn. Let m e have her . . . . Damn it, Billy Joe, you said if I drove and did like you said that I could have her when you was done with her to do

-3-whatever I wanted to.” The D efenda nt, arme d with a knife, n ext rap ed the victim in the front seat of the car. He then attempted to force her to perform fella tio. The victim testified that when she refused, the Defendant said, “I’d love to kill you . . . . I can’t wait to see your b lood flo w . . . . I’m a son o f satan and it w ouldn ’t bother me a bit. I ought to kill you . . . . I’ve put five women u p there in that grave and it wouldn’t bother me to mak e you n umb er six . . . . I ble w one bitch’s brains out for scream ing.” After the rape, the victim was sobbing, and the victim testified that the Defendant threatened to “chop [her] up and fry [her] on the hood of the car” if she did not quiet down.

Shor tly thereafter, the two men forced her to hold a cigarette lighter so that they could se e to divide u p the m oney tha t they had taken fro m the S top-In Marke t. Smith then raped the victim a second time on the ground outsid e, while the Defendant again watched fro m the car. Th rough out the night a nd ea rly morning, the two men threatened numerous times to kill the victim, and each one told the victim that he had a gun. The victim also testified that she felt what she believed to be a gun under the ba ck sea t of the c ar while she w as be ing he ld down on the floorboard.

After the third rape, the three got back into the car, at which point the Defendant asked Sm ith if he could have a second turn at raping the victim. Smith refused. The victim testified that the three of them then sat in the car in silence for an hour or two so that Smith could “think.” Finally, as the sun began to rise, Smith started the car and drove to the Roadway Inn in Johnson City, claiming that he and the Defendant would abduct the victim and have her help them rob banks.

-4-According to testimony of the victim, Smith said, “We’re going to be Clyde and you’ll be Bo nnie.”

When they arrived at the motel, Smith held a knife to the victim’s back while the Defen dant, lean ing aga inst the op en doo r of the car, c alled to a motel employee in the parking lot to ask whether there were any vacant rooms. The employee refused them a room, citing their drunkenness, and while the Defendant was arg uing with the employee, the victim slid out of the car and ran to the motel office. The emplo yee la ter testified that he could identify the Defe ndan t and S mith a s the m en he had s een th at mo rning a t the m otel.

The victim testified that while she was running to the motel office, she heard the men running and she heard one of them say, “Let’s get the f__k out of here.” The motel employee stated that the men were driving too fast for him to get a license tag n umber.

Upon reaching the motel office, the victim called 911 and summoned the police. The w hole ord eal had lasted ap proxima tely seven hours. W hen th e police arrived, she wen t with them to the Jo hnson C ity Police Departm ent to give a statem ent deta iling the eve nts of the n ight. While at the police department, she identified not only the Defendant from a photo line-up, but also was shown and identified the car driven by the perpetrators on the night of the crime. At the Johnson City Hospital, she subm itted to medical testing, which was later introduce d at trial in the fo rm of a ra pe kit.

-5-

At trial the State introduced evidence recovered from the cemetery, including a Mad Dog 20/20 bottle, the cigarette lighter, and a knife. Although DNA evidence linked Smith to the crime, the police were unable to link the Defendant with the crime through DNA evidence.

Howeve r, with regard to the identity of the Defendant, the victim testified that during the car ride, the Defendant called Smith by his first name, to which Smith responded, “God damn it, Snuffy, you called me by my real name.” A defense witness later testified that the Defendant has a tattoo that read s “Snuffy.” The victim state d at trial that she did not re call see ing an y of the D efend ant’s tattoos, but she also testified that h e never to ok off his long-s leeved jac ket. In addition, she identified the men on the video surveillance tape as the Defendant and Smith. Furthermore, although the Defendant appeared to have lost weight and had shaved his beard and shortened the length of his hair since the time of the crime, the victim, who testified that she had numerous chances to see the perpetrators’ faces at close range during the night of her abduction, stated uneq uivoca lly that the Defendant was the same man who abducted and raped her.

I.

The Defendant first argues that the evidence is insufficient to support a jury verdict that he was guilty of aiding and abetting aggravated rape beyond a reaso nable doubt. Under Tennessee law, “[a] person is criminally responsible for . . . the conduct of another if . . . [a]cting with intent to promote or assist the commission of the offen se, or to benefit in the procee ds or res ults of the offense, the person solicits, directs, aids o r attem pts to a id ano ther pe rson to com mit the

-6-offense . . . .” Tenn. Code Ann. § 39-11-402. The Defendant argues that he was not an active participant in the rapes of the victim by Smith. He argues that he was merely present while Smith raped the victim and in no way offered any assistance or aid to Smith during the rapes. He further argues that he did not take any action that would manifest a desire or intent to carry out the rapes.

Tennessee Rule o f Appe llate Pro cedu re 13(e ) presc ribes th at “[findin gs] of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to suppo rt the finding by the trier of fact beyond a reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all factual issues ra ised b y the ev idenc e, are re solved by the tr ier of fac t, not this Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Nor may this court re-weigh or re-evalua te the evide nce in the record b elow. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978)).

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in favor of the State. (citing State v. Williams, 657 S.W.2d 405, 41 0 (Ten n. 1983 )). On a ppea l, the State is entitled to the strongest legitimate view of the e vidence and all infere nces the refrom. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the ac cuse d has the bu rden in this Court of illustrating why the evidence is insufficient to support the verdict returne d by the trier o f fact.

-7-McBee v. State, 372 S.W.2d 173, 17 6 (Ten n. 1963 ); see also Evans, 838 S.W.2d at 191 (citing Grace, 493 S.W .2d at 476 ); Tug gle, 639 S.W.2d at 914.

In the case at bar, the evidence presented by the State clearly con tradicts the Defendant’s assertion that he was not an active participant in the rapes perpetrated by Sm ith. The Defe ndan t’s state men t, “[Y]ou s aid if I drove and d id like you said that I could have her when you was done with her to do whatever I wanted to,” shows that the perpetrators shared at least some pre-formed intent to act in con cert in the c omm ission of th e rapes. Moreover, the Defendant actua lly drove the car to the cemetery where all three rapes occurred, and the Defendant remained arme d with h is knife d uring m uch o f the eve ning a nd ea rly morning. In fact, the D efenda nt himse lf urged S mith to kill the victim on at least one occasion. Therefore, viewing the evidence in light most favorable to the prosecution, there is clea rly sufficient evid ence fo r the jury to have found the Defendant guilty of aiding and abetting aggravated rape beyon d a rea sona ble doubt.

II.

Second, the Defendant argues that the e vidence was insufficient to support jury verdicts tha t he was guilty of agg ravated ra pe, agg ravated ro bbery, and aggravated kidnapping beyond a reasonable doubt. The basis of his argument is mistake n identity. He argues that no physical evidence links him to the scene of the crime. He also contends that the victim’s identification of the Defendant is suspect since the majority of the abduction took place at night in darkness, the victim was in an exc ited state at the time o f the crime, and she failed to notice tattoos on the D efendant’s bo dy.

-8-

As previously noted, because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this Court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fa ct. Tug gle, 639 S.W .2d at 914 ; see also Evans, 838 S.W.2d at 191 (citing Grace, 493 S.W .2d at 476). Th is Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts in the record and the inferences wh ich may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonab le doubt. Ten n. R. App. P. 1 3(e).

Desp ite the lack of physical evidence linking the Defendant to the crime, the victim positively identified the Defendant as her assailant. She spent appro ximate ly seven hou rs with her two ass ailants, and a few o f those hours were spent in b road da ylight. Additionally, she testified that sh e hea rd Sm ith call the Defendant by both his first name and his n icknam e. The victim’s testimony alone would be sufficient to convict the Defendant. However, in this case, the victim’s testimony was coupled with images captured by a video surveillance camera and an identifica tion ma de by the motel em ployee. This issue is without merit.

III.

Third, the Defendant contends that the trial court erred in allowing the victim’s pretrial statement to be introduced and made an exhibit which was acce ssible to the jury during deliberatio ns. The Defendant argues that although the adm issibility of such a document is normally left to the discretion of the trial

-9-court, the trial judge in this case abuse d his discr etion. In his brief, the Defendant relies upon T ennes see Ru le of Evidence 803(5), the hearsay exception regarding recorded recollections:

A memorandum or record concerning a matt er about which a witness once had knowledge but now has insufficient re collection to enab le the witness to testify fully and ac curately, shown to have been made or adopted by the witnes s whe n the m atter w as fres h in the witness’s mem ory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Tenn. R . Evid. 803(5).

The docume nt in question is a statement by the victim taken by Officer Donna Haynes on the morning following the crime. At trial, the officer had trouble remembering portions of the victim’s state ment a nd was therefore allowed to refresh her memory using the typed statement. The record reflects that the document was first introduced by the State on direct and was subsequently used during cross examination. The State published the document to the jury and later move d to introdu ce it as an exhibit.

Although the document had already been published to the jury when the Defendant objected, the trial court should not have entered the document as an exhibit. Rule 803(5 ) plainly states that a memorandum or record used to refresh a witne ss’s memory may be introduced as evidence but may not be introduced as an exhibit unless offered by an ad verse pa rty. Id. Here, the State m oved to have the statem ent introdu ced as an exhib it.

-10-

Howeve r, despite this apparent error by the trial court, the Defendant has failed to demonstrate any prejudice caused by use of the statement during jury deliberations. For this reason, a ny error that the trial court may have made was harmle ss. See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).

-11-

IV.

Fourth, the Defendant argues that the trial court erre d in allowin g the Sta te to amen d the indic tment o n the da y of trial. Spec ifically, the Sta te move d to amend the aggravated kidnapping count to include the word s: “so as to subs tantially interfere with the victim’s liberty.” The State also corrected the statutory citation listed in the indictment. The amended count reads as follows:

And these same Grand Jurors upon their same oath further

present that BILLY JOE SMITH and TERRY DEAN SNEED, on or

about the 29th d ay of No vemb er, 1992, in the C ounty an d State

aforesaid, and b efore th e findin g of this Indictme nt, did u nlawfu lly

remove the victim fro m her p lace of em ployme nt, so as to

subs tantially interfere w ith the victim’s liberty, while the said BILLY

JOE SMITH and TERRY DEA N SNEED were armed with a dea dly

weapon, to-wit: a Knife, in vio lation of Section 39-13-304 of the

Tennessee Code Annota ted, all of wh ich is aga inst the peace and

dignity of the State of Tennessee. (Em phas is added.) The Defendant argues that the amendments added an essential element to the crime without prior notice to the Defendant and without review of the gran d jury.

Rule 7(b ) of the Ru les of Crim inal Proc edure s tates that “[a ]n indictm ent, presentment or information may be amended in all cases with the consent of the defend ant. If no ad ditiona l or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced, the co urt ma y perm it an amendment without the defendant’s consent before jeopardy attaches.” Tenn.

-12-R. Crim. P . 7(b). Thu s, at its discre tion, a court may allow any amendment to an indictment that does not add an offense or substantially prejudice the rights of the defend ant.

In the case at bar, it is our opinion that the Defendant did not experience surprise as a re sult of th e am endm ents. T he im prope rly cited Tennessee Code Annotated § 39-13-3 01 refers to the definitional portion of “Kidnapping and False Impriso nmen t.” It should have been clear to the Defendant, from both the impro perly cited section and the language of the count itself, that the charge referred to aggravated kidnapping. Moreover, although inserting the language, “so as to substantially interfere with the liberty of the victim,” does add an essential element to the crime of aggravated kidnapping, as the Defendant contends, we do not be lieve tha t the ad ditiona l langu age re sults in r evers ible error.

Moreover, desp ite the fo regoin g discu ssion, the Defendant in this case failed make an objection to the form of the indictment before trial. Rule 12(b)(2) of the Tennessee Rules of Criminal Procedure requires that “[d]efenses and objections based on defects in the indictment, presentment or information” be raised before trial. 2 Tenn. R. Crim. P. 12(b)(2). Here, the Defendant raises the issue on ly on app eal to this C ourt.

More approp riately, not having raised the issue pre-trial, the Defendant could have moved for a continuance at the time opposing counsel presented the

2 With some exceptions, which are noted in the rule. Tenn. R. Crim. P. 12(b)(2).

-13-amen dmen ts to the court. When a defendant experiences actual surprise at trial resulting from an amendment to an indictment, a defendant sho uld move for a contin uance so as to allow time to prepare a defense to the new charges.3 Here, the Defe ndant n either objected at the time of trial nor m oved for a continua nce. More importantly, however, after review of the record, we are not convinced that the Defendant experienced actual surprise as a result of the amendments.

V.

The Defendant’s next argument also pertains to the indictment. He argues that the trial court erred in overruling the Defendant’s motion to dismiss two counts of the indictment, which the Defendant argues were erroneously drawn and duplicitous in nature. T he first two counts to w hich Defen dant refers are identic al:

The Grand Jurors of the State of Tennessee, duly summoned and elected, empaneled, sworn, and charged to inquire in and for the body of the County aforesaid, in the sta te afore said, u pon th eir oath, present that BILLY JOE SMITH heretofore, to wit, on or about the 29th da y of Nove mber, 1 992, in the Coun ty aforesaid, and before the find ing of th is indictm ent, did unlaw fully sexu ally penetra te the victim, by forcing her to h ave sexual inte rcourse with him while the said BILLY JOE SMITH was armed with a deadly weapon, to-wit: a knife, and did thereby cause bodily injury to the said victim, a nd furth er, the s aid BILLY JOE SMITH, was aided and abetted in com mitting this aggravated rape of the victim by another person, Terry Dean Snea d [sic], contrary to Tennessee Code Annotated, 39-13-502, and against the peace and dignity of the State of Tennessee.

3 In addition, if the Defendant believed that the indictment did not adequately apprise him of the charges against him, he could have moved for a bill of particulars pursuant to Rule 7(c) of the Rules of Criminal Procedure, which states: “Upon motion of the defendant the court may direct the filing of a bill of particulars so as to adequately identify the offense charged.” Tenn. R. Crim. P. 7(c).

-14-

Again we note that the Defendant failed to object to the form of the indictment before trial, as required by Rule 12(b)(2) of the Tennessee Rules of Criminal Procedure. Tenn. R. Crim. P. 12(b)(2). Nor did he move for a bill of particulars pursua nt to Rule 7(c) of the Rules of Criminal Procedure. Tenn. R. Crim P. 7(c). 4 However, we will proceed to discuss the merits of this issue.

In arguing that the counts were erroneously drawn, the Defendant points to the fac t that in c ounts one a nd two , initially Billy Joe Smith is charg ed with aggravated rape, while the Defendant is mentioned only later in the count as the person who aids and abets Billy Joe Smith in committing the rape. The Defendant argues that this does not afford him sufficient notice of the charges against him and therefore asserts that the indictment should be dism issed . Wh ile we agree with the Defendant that the language of the counts does not provide the clearest possible description of the crime, nor does it establish with com plete precision the role of each perpetrator in the crime, we find that the language of the counts is sufficient to apprise the Defendant of the charges against him.

The Defendant’s argument concerning the duplicity of the counts is less manife st. Althoug h we are unable to ascerta in the thrust of th e Def enda nt’s argum ent, we have exam ined b oth ind ictme nts an d are u nable to find e rror in them. “[A]s in the case of rape, where it appears that two or more persons acted together, aiding and assisting one another in the perpetration of successive rapes, or that the one committed the act and the other did n ot, but such stood by and aided and assisted the one in commission of such act, they m ay be jo intly

4 See supra note 3.

-15-charged with the com miss ion of such act.” Wa tson v. Sta te, 197 S.W.2d 802, 804 (Tenn . 1946) (c iting 42 C .J.S. Indictm ents and Informations § 159). Moreover, the facts clearly support the commission of two separate rapes by Smith with assistance by the Defendant which were separated by both time and the rape of the victim by the Defen dant. Fa cts such as tho se in the instant case provide a dequa te groun ds for cha rging rap e in two se parate c ounts.

VI.

Sixth, the Defend ant contend s that the trial court erred by instructing the jury on flight. He argues that no evidence of flight was introduced at trial and that therefore, a jury charg e on the issue of flight was improp er.

The jury was pro vided with the followin g instructio n on flight:

The flight of a person accused of crime is a circumstance which, when considered together with all the facts of the case, may justify an infe rence of guilt. F light is th e volun tary with drawa l of ones elf for the purpose of evading arrest or prosecution for the crime charged. Whether the evidence presented proves beyond a reaso nable doubt that the defendant fled is a question for your determination.

The law ma kes no nice or refin ed distinc tion as to the manner or metho d of flight; it may be open, or it may be a hurried or concealed departure, or it may be a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and subsequent hiding out, eva sion, o r conc ealm ent in the comm unity, or a leaving of the com munity fo r parts un known , to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find that the de fenda nt is guilty of the crime alleged. However, since flight by a defendant may be caused by a conscio usnes s of guilt, you may co nsider the fact of flight, if flight is so pro ven, toge ther with all of the other evidence when you decide the guilt or innocence of the defendant. On the other hand, an entirely innocent person may take flight and such flight may be explained by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reason s for it, and the weight to be given to it, are questions for you to determine.

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This instruction on flight is almost identical to that provided in State v. Kendricks, 947 S.W .2d 875 , 885 (T enn. C rim. App . 1996). In Kendricks, this Court noted that the instruction was “in sub stantial accord with o ur pattern jury instruction, T.P.I.-- Crim. 42.18, which has been c ited with ap proval by o ur Cou rt.” Id. at 886. Generally, the jury is “entitled to evalua te [evidence conce rning flight] and determine whether flight was established and if so, whether an inference of consciousness of guilt arose.” State v. Hill, 875 S.W .2d 278, 284 (Tenn. Crim. App. 1993) (citing Hall v. State , 584 S.W .2d 819, 821 (Tenn. Crim . App. 1979 )).

As stated in the facts, immediately after the victim escaped from the car at the motel, on e of the m en was heard to say, “Let’s g et the f__k out o f here.” They then got back into their car and exited the parking lot, driving too fast for the motel employee to ta ke dow n a licens e plate nu mber. A t trial, Unicoi C ounty Criminal Investigator Ron Arnold testified that he spent approximately seven months interviewing the De fendant’s fam ily and searching for the D efend ant in an attemp t to appre hend h im. We believe that this constitutes sufficient evidence to warrant the flight instru ction. The language in the instruction provided allows for a broad spectrum of methods of flight and appears to encompass the behavior of the Defend ant. Thus, the jury instruction on flight was appropriate in the instant case.

VII.

Seventh, the Defenda nt contends that the trial court erred in overruling the Defe ndan t’s motion for a mistr ial after a police officer testified that the Defe ndan t’s co-defendant had given statements which led the police officer to believe the Defendant was guilty. The Defendant argues that the statement was

-17-inadm issible hearsay and that in order to offer this statement into evidence, the State should h ave called co-defe ndant S mith to te stify so as to satisfy the Defen dant’s righ t to confron tation.

The exchange at issue took place during the cross examination of Unicoi Cou nty Crim inal Inve stigato r Ron Arno ld by de fense coun sel:

Q. Now I believe you stated a moment ago somebody told you to be on the lookou t for Terry Dean Sneed, or that Terry Dean Sneed might be involved. Is that correct, sir?

A. Tha t’s correct.

...

Q. What somebody told you?

A. The co-defe ndant.

The Defendant immediately moved for a mistrial, arguing that a Bruton violation had occurred.5 The trial court overruled the motion and gave the jury a curative instruction .

W e find it unnecessary to delve into discussion of Bruton violations in the instant case as this matter m ay be re solved on oth er grou nds: O fficer Ar nold’s answer was elicited by counsel for the defense. Having elicited the objec tionab le response, counsel for the defense cannot now be heard to complain. From a reading of the record, we do not find here an intentional reference to the Defendant in an attempt by the defe nse co unsel to c ompe l the court to grant a

5 See Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the United States Supreme Court held that the admission of a co-defendant’s confession implicating the defendant at a joint trial constituted prejudicial error. Id. at 126. The Court reasoned that because the co-defendant did not take the stand for cross examination, the defendant’s constitutional right to confrontation had been violated. Id. The Court determined that a curative instruction to the jury did not serve to remedy the error. Id. at 137.

-18-mistria l, as the S tate suggested at trial. The witness’s statement of what the co-defendant told him was very general and vague. We find instead an error which was rem edied w ith a curative instruction .

The decisio n of wh ether to grant a mistria l is within the sound discretion of the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996 ). This Court will not disturb such a ruling absent a finding of an abuse of discretion. State v. Adkins, 786 S.W .2d 642 , 644 (T enn. 19 90); State v. Williams, 929 S.W.2d 385, 38 8 (Ten n. Crim. A pp. 199 6). Furtherm ore, we presume that the jury followe d the tria l court’s explicit instruction s not to co nsider the inappro priate comm ent. State v. S mith, 893 S.W.2d 908, 923 (Tenn. 1994). In light of the limited nature of the offending testimony an d the trial court’s prom pt curative instruction, we find that the trial judge did not abuse his discretion in refusing to grant a mistrial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993). Although we are un able to find a ny erro r on the part of th e trial co urt, if any error was made , it was clearly h armles s. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52 (a).

VIII.

Finally, the Defendant argues that the trial court erred in finding the Defendant competent to stand trial. On the day of trial, Defendant filed a pro se motion requesting “proper medication,” claiming that without his medication, he was not competent to stand trial. The court conducted a hearing on the matter.

The court allowed the Defendant to testify on his own behalf outside the presence of the jury. Th e court a lso delaye d proce edings to attem pt to find the

-19-Defe ndan t’s docto r, who p roved to be u navaila ble. In the doctor’s stead, the court called a pharmacist to testify, who testified that the anti-depressant medications the Defendant had been taking were ge nerally use d for mild a nxiety “due to everyday life stresses .” The record reflects that the Defendant had not been taking his medication for at least two months preceding trial. The court called to the stand a jailer from the Defendant’s place of incarceration, and the jailer testified that the Defendant had not exhibited any form of abnormal behavior since he had stopped taking his medication. The Defendant introduced a letter from Assessment Services, dated November 8, 1994, stating, “It is important that Terry continues to receive his medications on a regu lar bas is to m aintain his comp etency.” However, the State also entered into evidence a letter, dated August 3, 1995, from the Defend ant’s doctor, who wrote, “I do not feel that T erry Sneed needs to be taking Loraze pam.” After ha ving heard all testimo ny and having tried unsuccessfully to locate a presc ription fo r the D efend ant’s medication, the court concluded that the Defendant’s pro se motion should be denied:

Based upon what I’ve heard here today from the pharmacist and from the jailer as to [the Defendant’s] actions lately and the motions filed by Mr. Sne ed we re not tim ely filed, a ccord ing to th e . . . local rules, therefore, we’re going to proceed with the trial without any Lorezapam. It would delay the trial too much, in my opinion, to try to get some doctor to prescribe Lorezapam for him, have it filled and get it in his system, so- and, therefore, we’re going to go ahead without any medication for Mr. Sneed.

The Defendant correctly cites the test for determining the competency of a defend ant to stan d trial in Ten nesse e. In order to stand trial, a defendant must (1) be able to understand the nature and object of the proceedings against him, (2) be able to consult with counsel, and (3) be capable of assisting in the preparation of his defense. Macke y v. State, 537 S.W.2d 704, 707 (Tenn. Crim.

-20-App. 1975); State v. Stacy, 556 S.W.2d 552 (Tenn. Crim. App. 1977). The determination of compe tency is within the discretion of the trial court. State v. Caughron, 855 S.W.2d 526, 538 (Tenn. 1993). “The trial court’s determination on competency will not be overturned absent a showing of an abuse of discretion .” State v. Howa rd, 926 S.W.2d 579, 584 (Ten n. Crim. App . 1996). After careful review of the record, we conclude that all three prongs of the competency test have been met in the case before us. Furthermore, the Defendant has failed to demonstrate any prejudice resulting from his being denied medic ation on th e day of trial.

The judgment of the trial court is affirmed in all respects.

_______________________ DAVID H. WELLES, JUDGE

CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ JOSEPH M. TIPTON, JUDGE

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