State v. Corey Powell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY SESSION, 1998 September 22, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

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. ) (FIRST DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL E. SCHOLL JOHN KNOX WALKUP 200 Jefferson Avenue, Suite 202 Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North Nashville, TN 37243

ELIZABETH T. RICE District Attorn ey Ge neral

CHRISTOPHER MARSHBURN Assistant District Attorney General 302 M arket Stre et Somerville, TN 38068

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION The Defendant, Corey Lemont Powell, appeals as of right from his conviction

in the Fayette County Circuit Court. Defendant was indicted on three counts, including especially aggravated robbery, murder during the perpetration of a robbery, and premeditated first degree murder. Following a jury trial, Defendant was convicted of second d egree m urder, felony mu rder and especially aggravated robbery. The trial court m erged th e seco nd deg ree mu rder con viction with the felony murder conviction and sentenced Defendant to serve a life sentence for felony murder concurrent with a sentence of fifteen (15) years for the especially aggravated robbery conviction. Defendant submits the following issues for appellate review:

1) whether the trial cou rt erred in denying Defenda nt’s motio n to suppre ss his state ment;

2) whether the trial court erred in refusing Defendant access to the results of a polygraph test for use as evidence;

3) whethe r the trial cou rt erred by re fusing to suppress evidence of the murde r weapo n and th e ballistics tes t;

4) whether the trial court erred in denying Defendant’s motion regarding the striking of specific jurors and motion for a change of venue;

5) whether the 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 regarding Defe ndan t’s restricted access to the telephone during police questioning;

7) whether the trial cou rt erred in overruling Defend ant’s motion for a judgm ent of a cquitta l;

8) whether the trial court erred by refusing to charge lesser included offenses of premeditated first degree murder; and

9) whether the trial court erred by allowing prosecutorial misconduct during the trial.

-2-

After a thorough review of the record an d the briefs in this ma tter, we affirm the judgment of the trial court in all respects.

Bess ie Russell, wife of Don Russell, testified that he was the owner and operator of Russell’s Grocery located in Hickory W ythe, a rura l area of Fa yette County. The store had been open since April 1947. In May 1994, Don Russell was seventy-four (74) ye ars old . Russ ell and his wife lived 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 with the newspaper for her to read. The store was open from 5:00 a.m. until 5:30 p.m.

On May 27, 1994, Mrs. Russell awoke and discovered that her husband had not yet returned with the newspaper. She walked to the store and found him lying on his back in a pool of blood. Mrs. Russell called 911, and the victim was transported by helicopter to a hospital in Memphis where he was pronounced dead. She noticed that the cigar box was missing from the store and estimated 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 utopsy of the victim. Dr. Smith report ed tha t the victim died as a result of a near gun shot wound to the head, and he rem oved a .22 ca liber bu llet fragment from the back of the victim’s brain. From his examination, Dr. Smith determined that the gun fired at the victim was between six (6) to tw elve (1 2) inch es from the victim ’s head at the time it was fired.

Bill Kelley, Sheriff of Fayette C ounty, testified that he led the investigation of the victim’s murder. After arriving at Russell’s Grocery on May 27, 1994, at 6:30

-3-a.m., Sheriff Kelley de termine d that a cigar box containing approximately $1200.00 had been stolen from the store and that the re were no witnesses to the shooting of the victim. On June 24, 1994, Ke lley interrogated a po tential suspect, Jerry Coleman, but after a brief investigation, Coleman was eliminate d as a su spect. The investigation, in She riff Kelley ’s word s, cam e to a “d ead e nd.” T wo yea rs later, in April 1996, Kelley discovered that the Defendant had told some people within the comm unity that he was responsible for the victim ’s mu rder. A lso, the Defe ndan t’s nine-shot .22 caliber revolver was seized from him by police du ring the M id-South Fair. After the revolver was recovered from the Memphis Police Department property room, both the revolver and b ullet fragments from the victim’s brain were sent for ba llistics testing.

Kelley interviewed the Defendant for the first time on May 1, 1996, advising him that he was investigating the victim’s death and that they had recovere d the Defe ndan t’s pistol. After reading Defendant his constitutional rights, the Defendant signed a waiver of these rights and did not request an attorney or his parents to be present during the interview. Defendant denied any involvement in either the robbery or murd er of the victim, but did advise Kelley that Br yant P owell a nd Er in Lucke tt were involved. The Defendant was released following that interview. After further investigatio n, the De fendant was again picked up by the police for questioning on May 3 or 4, 1996. After advising Defendant of his rights for a second time, Kelley interviewed the Defendant on May 6, 1996. Defendant again denied his involvement in the crime.

On May 7, 19 96, Sheriff Kelley wa s notified tha t the Defe ndant w anted to speak with him. After Defendant was advised of his constitutional rights and signed

-4-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 the Tennessee Bureau of Investigation came to interview the D efenda nt upon Sheriff Kelley ’s request. Sheriff Kelley verified that the Defendant was never mistreated or prom ised anything in exchange for his statement. Kelley also stated that he was never informe d by eithe r the Defe ndant o r his paren ts that they wanted or had retained an attorney, although Kelley spoke with Defendant’s parents several times throughout the investigation.

Agent Walley testified that he advised Defendant of his constitutional rights. During the first portion of the interview, Defendant denied involvement in the crime. Following a lunch break, Defendant returned to the interview and gave a statement to Agent Walley in which he admitted robbing and shooting the victim. Defendant stated that he entered Russell’s Grocery at approximately 5:30 a.m. on May 27, 1994, with his nine-shot .22 caliber revolver in his right front pocket. He told the victim to “give [him] the m oney a nd the re won ’t be no [sic] pro blem .” The victim pulled out the gold cigar box from underneath the counter, and then went to the beer cooler to get a six-pack of Miller be er as D efend ant req ueste d. W hile turning around with his elbows halfway up, the Defendant became 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 Walley took notes and then w rote out a statem ent in narrative form w hich Defen dant read and signed after initialing all corrections. Sheriff Ke lley returne d to the room and read the statem ent. W h en Defendant affirmed that this was indeed his statement, Kelley signed the statem ent as a w itness.

-5-

Steve Scott, an agent of the Tennessee Bureau of Investigation, administered the ballistics testing on the pistol and the bullet fragment. 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 testified that all four class characteristics of the bullet and the pistol were a match . These four class characteristics included the caliber of the gun and bullet, the directio n of the ba rrel twist, the number of lands and grooves, and the width of the lands and grooves. While the Defendant’s weapon could not be isolated as the murder weapon, it could “certainly” have been the weapon used. Agent Scott also noted that the pisto l required trigger press ure “between normal and heavy” to fire the weapon, dependent upon whether the weapon was cocked or uncocked when it was fired.

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

Tim Adams, a friend of the Defendant’s, testified that after the victim’s murd er, the Defendant left town for one or two weeks. When the Defendant returned, he had both new tire s and a new vinyl top on his car. Jokingly, Adams inquired whether the Defendant had “bumped old Do nn off,” b ut the D efend ant on ly laughed in response.

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 calls for the Defendant because the telephone in Defendant’s cell was not working.

Rodney Johnson testified that the Defendant never told him that 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.

-6-

Stevison Veasey, the Defendant’s stepfather, testified that Defendant visited his mother around May 27, 1994. During that visit, Veasey bought new tires for Defe ndan t’s car. During that same visit, Veasey stated that Defendant’s natural father put a new vinyl roof on the Defe ndant’s car.

M OTION TO SUPPRESS STATEMENT

Defendant argues that his state ment g iven to the police on his fifth day of incarceration should h ave bee n supp ressed as a violation of his Fourth, Fifth and Sixth Amendment rights under the United States Constitution. Wh en an accu sed is afforded an evidentiary hearing on the merits of a motion to suppress, the findings of fact made b y the trial court are bin ding upon the appellate court unless the evidence containe d in the rec ord prep ondera tes aga inst these findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the witnesses, the weight and value of the evidence , and resolution o f conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. Provided that the greater weight of the e videnc e sup ports th e trial co urt’s findings, then those findings shall be uphe ld by the appellate court and the party prevailing in the trial court is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn from that evidence. Id. In evaluating 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 the proof adduced both at the suppression hearing 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).

-7-

At the he aring o n the m otion to supp ress, S heriff B ill Kelley te stified that h e had the Defendant picked up for questioning for the first time on May 1, 1996. After the Defendant denied any involvement in the crime and implicated others, he was released and further investigation occurred. Kelley recalled that Defendant was picked up again for questioning on May 6, 1996, and was held until he confessed on May 8, 1996 . There is some discrepancy in Kelley’s testimony as to the date the Defendant was picked up by the police for questioning on the second occasion. Howeve r, the trial court’s findings of fact and the strongest legitimate view of th e evidence require us to conclude that Defendant was not picked up for questioning again by the police until May 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 his confession was obtained in violation of his Sixth Amendment constitutional right to counsel. The Sixth Amendment right to counsel does not attach until the adversarial judicial process has be gun. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1 986) (citatio ns om itted); State v. Stephenson, 878 S.W.2d 530, 547 (Tenn. 1994). The long-established law in Tennessee for the initiation of the adversarial judicial process is at the time of the filing of the formal charge, such as an arrest warrant, indictment, presentme nt, or preliminary hea ring in cases wh ere a warrant was not obtained prior to the ar rest. State v. Mitch ell, 593 S.W.2d 280, 286 (Tenn . 1980), cert. denied, 449 U.S. 845 (1980); State v. Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990). It is clear from the record that Defendant had not as yet been formally charged as of the time he gave his statement, therefore no right to coun sel had ye t attached and no violation of the Sixth Am endm ent occu rred.

-8-

Defendant urges this court to suppress his statement as involuntary based upon denial of the right to counsel during police interrogation pursuant to the Fifth Ame ndme nt. If a suspect requests that counsel be present during police-initiated custodial interrog ation, th en po lice m ust ce ase q uestio ning u ntil cou nsel for 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. Arizona, 451 U.S . 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed .2d 378 (1981); State v. S tephenson, 878 S.W.2d at 547-48. The Defendant waived his right to counsel verbally and/or in writing on each occasion when he was interrogated by the police. Therefore, his waiver is sufficient for the 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 asserts that at the time he gave his statement to the police he had been incarcerated for five (5) days and that this amount of time violated the Fourth Amendment right to prompt judicial d eterm ination of prob able cause after a warrantless arrest. The State concedes that Defendant may have been detained over a 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” analysis is to be applied to determine whether a statement obtained in violation of th e Fourth Ame ndme nt mus t be supp ressed . Huddleston, 924 S.W.2d at 674. The question is “whether [the statement] ‘was sufficiently 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)).

-9-

Four factors are useful in determining whether the statement was voluntary under the above standard: (1) the presen ce or ab sence of Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose 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 writing 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 violation, weighs only slightly in favor of suppression.

The third factor, the presence of intervening circumstances, points toward purging the initial illegality 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 submit to a polygraph examination on the following day. Defendant’s consent to submit and remain present for the polygraph examination exemplifies his “act of free will,” also pointing towards attenuation. Finally, the State concedes that Defendant’s detention under the fourth determining factor wa s neither in adverte nt nor unin tentional b ased u pon Sh eriff Kelley’s tes timony.

W hile the fourth factor is weighed heavily by this court when determining whethe r to suppress a statement, a review of the remaining three (3) factors leads this court to conclude that Defendant acted sufficiently of free will to purge the initial illegality of his statemen t. Both the intervening factors and th e use o f Miranda

-10-warnings clearly demo nstrate that Defe ndant acted of his own free w ill, and the third factor, that of temporal proximity, does not exhibit such a length of time as to require suppression.

Defendant also argues that this delay violated Rule 5 of the Tennessee Rules of Criminal Procedure. Rule 5(a) states that any person arrested without a warrant shall be taken without un neces sary dela y before th e neare st appro priate magistrate. As Defendant did not agree to a lengthy detention, it is argued that the delay was not in good faith and was unnecessary. The S tate ag ain co nced es tha t Defe ndan t’s detention violates this rule. Violation of this rule results in suppre ssion of a statement if the statement was not voluntarily given under the totality of the circumstances. Huddleston, 924 S.W.2d at 670. The following factors may be used in determining the voluntariness of the confession:

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 previous experience with the police; the repeated and prolonged nature o f the ques tioning; the length of the detention of the accused before h e gave th e statem ent in que stion; the lack of any advice to the accused of his constitutional rights; whether there was an unneces sary delay in bringin g him before a magistrate b efore he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was ph ysically abu sed; an d wheth er the su spect was threatened with abuse.

Huddleston, 924 S.W.2d at 671 (quoting People v. Cipriano, 431 Mich. 315, 429 N.W .2d 781 (198 8)).

There is no evidence within the record to support that the Defendant’s age, intelligence or education levels prevented him from voluntarily confessing. N or were any physical o r menta l limitations intro duced into evidence. Th ere is some evidence indicating Defendant has had prior contact with law enforcement. While Defendant was repea tedly questioned by the police, he was Mirandized prior to a ll questioning

-11-and he initiated many portions of that questioning voluntarily. Another factor favoring voluntariness of his con fessio n is the conta ct he w as allo wed to have w ith his family. At no time du ring the qu estioning was the re any evid ence th at Defen dant was deprived of any necessities, nor is there evidence of physical or mental abuse. W hile we agree there was an unnecessary delay and a violation of Rule 5(a) of the Tennessee Rules of Criminal Procedure, under the totality of the circumstances we canno t conclud e that De fendan t’s statem ent was involuntary .

P OLYGRAPH EXAMINATION

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 suppression hearing, Agent Walley testified that the results indicated that Defendant was “deceptive” as to his involvement in the crimes committed against th e victim. T herefore , Defend ant was a llowed access to the results of th e exam ination.

Well-established law in Tennessee holds that the results of a polygraph examination are not admissible as 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 (Tenn. Crim. App. 19 85); Grant v. S tate, 213 Tenn. 440, 443, 374 S.W.2d 391, 392 (1964). As the State correctly notes within its brief, neither the offer to take a polygraph 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.

-12-

R EVOLVER AND B ALLISTICS TEST RESULTS

Defendant argue s that th e trial co urt erre d in admitting a revolve r and b allistic test results into e vidence . Defend 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 efendant urges this court that the ballistics test results were so 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 the Mid-South Fair in Memphis, Tennessee, Defendant was arrested for carrying a loaded .22 caliber revolver. After pleading guilty to charges of carrying a weapon on recreational property, Defendant was placed on judicial diversion. Evidently, Defendant completed his sentence of diversion without furth er inciden t and his re cord wa s expun ged.

Expungement pursuant to judicial diversion includes “all recordation relating to the person’s arrest, indictment or informa 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 the sta tus the pe rson oc cupied prior to suc h arrest, indictment or information. Defenda 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 expunging records of a criminal charge is to place the person back in the position he or she occupied prior to being arrested or charged. State v. Sims, 746 S.W .2d 191 , 199 (T enn. 19 88). While the trial court did allow use of the revolver as admissible physical evidence, he refused to allow admission of any facts surrounding Defendant’s prior arrest. The expungement language in our judicial diversion statute precludes use of proof of any a rrest, indictm ent,

-13-information, or trial. State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim . App. 1995). Physic al evide nce is not excluded under this statutory section, and this issue is without m erit.

Defenda nt complains the ballistic test results should have been suppressed as they were “inconclu sive” and , although relevant, their probative value was subs tantially outweighed by the danger of unfair prejudice. The decision to admit or exclude evidence rests in the sound discretion of the trial court, and this court will not overturn the trial 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 officer who conducted the ballistics tests admitted the test results were not conclusive, he testified that the weapon could not be excluded as the potential murder weapon. The officer also stated that the four class characteristics of the Defendant’s weapon matched the bullet which killed the victim. The revolver and the murder weapon had matching calibers, same number of land and grooves, matching land and groove widths, and the same direction of barrel twists. Coupled with the statement of Defendant confessing to the crime, these test results are relevant, and the probative value clearly outwe ighs th e pote ntial prejudicial effect of the inconclusive nature of the results.

B ATSON CHALLENGE AND CHANGE OF VENUE

Defendant argues that the State’s exclusio n of ce rtain bla ck juro rs was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.E d.2d 69 (198 6). Following the conclusion of voir dire, the State exercised its peremptory challenges against four (4) jurors, specifically jurors Rivers, Howell, Wo ods an d Bryan t.

-14-Defendant objected under Batson that such challenges were based upon willful and purposeful discrimin ation by th e State. While the Defendant argued that these challenges resulted in all blacks being exc luded from th e jury, the State responded, “[I]t’s been an unfortunate coincidence that most everybody that knows the defendant or his family is African-American, but that’s a sociological fact that the State can’t be p rejudiced by . . .”

After Defendant objected, the State responded to each challenge with an individual explana tion for the p eremp tory challen ge. First, wit h regard to juror Rivers, the State cited the fact that he had been through the criminal courts before and worked with individuals similarly situated to the Defendant on a daily basis. The State referenced the challenge to juror Howell due to her relationship with the Defendant and his fam ily, and that, in response to questioning, so me of her a nswers “gave her some pause about her judgment in this case.” Juror Woods was excluded by the State as he has a son the same age as the Defendant and is friends with the Defendan t. Juror Bryant had two family members convicted of felony offenses in Fayette C ounty.

There is a three-step analysis defined in Batson which is u sed to determine whether purposeful discrim ination has o ccurre d in jury selection . Batson, 476 U.S. at 96-98. First, the opponent of the peremptory challenge must establish a prima facie case of racial discrimination. Second, the one exercising the challenge must present a race-neutral explanation for exercising the challenge. Th ird, the trial court is to determine whether the reasons given are sufficient or are pretexts for discrimin ation.

-15-

In Woodson v. Porter Brown Limestone Company, Inc., 916 S.W.2d 896, 904 (Tenn. 1996), our suprem e court h eld that in a ccom plishing the mand ate of Batson, the trial court should state clearly on the record, outside the jury’s presence, the facts relied upon fo r finding the presen ce or ab sence of a prima facie showing. If the trial court finds that a prima facie showing has been made, then the party seeking to exclude the juror m ust have an opportunity to offer neutral and no ndiscriminatory explanations for the exercise of the challenge. “Thereafter, the judge must determine, based on all the evidence, whether purposeful discrimination has been establish ed.” Id. at 904. While the procedure used by the trial court did no t explicitly follow these guidelines, we must conclude that the trial judge determined first that a prima facie case of discrimination was established and, second, that the trial judge rejected Defendant’s objection by concluding that there was no purposeful discrimination 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, the record of voir dire supports the trial court’s ruling as to Defendant’s Batson objection. Upon review 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 contemporaneous motion for a change of venue during his voir dire challenges, the trial court overruled his motion. Defendant objected on the basis of the prosecutor’s statement that most every African-American in the potential jury pool knew the Defendant. Rule 21(a) of the Tennessee Rules of Criminal Procedure provides for a change of venue “if it appears to the court that, due to undue excitement against the defendan t in the county whe re the offense was committed or any other 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

-16-not be overturned absent a clear abuse of discretion. 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 conviction due to the den ial of his mo tion to change venue, the defendant must establish that the 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 is no evidence in the record that undue excitement or any other cause threatened his right to a fair trial in that county. The mere fact that there was e xtensive knowledge of the crimes and the defendant is not sufficient to rende r the trial con stitutionally un fair. State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989) (citation omitted). 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 trial court erred in overruling his m otion for a mistrial base d upo n the p rosec utor’s reference to Defendant’s expunged conviction during the trial. During pretrial motions, the trial court determined that Defe ndan t’s prior arrest had been properly expunged and, therefore, the prosecution could not “go into the underlying circumstances of any crimes [the Defendant] would have committed while he had the gun or any charges against him.” Defendant claims that the prosecution did present testimony of and reference these inadmissible matters.

A mistrial is an appropriate remedy when a trial cann ot continue, or a miscarriage of justice wo uld result if it did. State v. McPherson, 882 S.W.2d 365,

-17-370 (Tenn. Crim. App. 1994). The decision to grant a mistrial rests in the sound discretion of the trial cou rt, and this court will not interfere with the exercise of that discretion absent clear abuse appearing on the face of the record. State v. Jones, 733 S.W.2d 517, 522 (Tenn . Crim. 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 demonstrates that the prosecutor elicited testimony regarding the pistol taken from the Defendant, but the prosecutor at no instance ever inquired into the underlying circumstances surrounding the Defe ndant’s a rrest. As previously 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 trial court 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 trial court erred in excluding some portions of the testimony of Jesse Jame s Jone s, a cellm ate of the Defen dant. Specifically, Defendant asserts that the trial court excluded testimony regarding the Defe ndan t’s lack of ability to use a telephone while incarcerated. As this issue was not spec ifically included within the Defendant’s motion for new trial, this issue is 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

-18-

Defendant argues that the trial 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 State’s proof and at the end of the trial. The duty of the trial judge and the reviewing cou rt on the determination of a motion for a judgmen t of acquittal is the sam e as for a motion for a directe d verdict. State v. T orrey, 880 S.W.2d 710, 712 (Tenn. Crim. App. 1993). This duty is as follows:

The rule for determining a motion for a directed verdict requires the trial judge and the reviewing court on appeal to look at all of the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, and to allow all reasonable 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 material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the m otion must be denied.

State v. Thompson, 549 S.W.2d 943, 946 (Tenn. 1977) (citing Jones v. State, 533 S.W .2d 326, 329 (Tenn. Crim . App. 1975 )).

Defendant was convicted of murder in the perpetra tion of robbery and second degree murder, wh ich the trial court merged as one conviction for felony murder. At the time of this offense, a reckless killing of another committed in the perpetration of or attempt to perpetrate any robbery or burglary constituted first degree mu rder. Tenn. Code Ann. § 3 9-13-20 2(a)(2). H e was a lso convic ted of especially aggravated robbery. Especially aggravated 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, it is clear that the evidence is sufficient to support the trial court’s refusal to grant these motions. While Defendant focuses upon the element of “premeditation” in his brief, this mental state was not required by these offenses and his argum ent is mo ot. In his own statem ent, Defe ndan t adm itted to in tention ally

-19-using a revolver to rob the victim of his store earnings. While the Defendant claims to have accidentally fired the handgun, evidence demonstrated that it would take a significant amount of pressure to discharge the weapo n. In any ev ent, the reckless use of the weap on res ulting in the death of the victim while Defendant committed a robbery is sufficient to c onstitute convictio 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 offenses of premeditated first degree murder, including volun tary manslaughter and criminally negligent homicide. Reasoning that there was not adequ ate evidence of passion or provocation, the trial court refused to charge the jury on these lesser offenses. The trial court charged second degree murder as a lesser offense of premeditated first degree murder and charged reckless homicide as a lesser offen se of felony mu rder.

W e note that the Defendant failed to include this issue in his motion for a new trial. Tennessee Rule of Appellate Procedure 3(e) requires that issues in a motion for new trial be “specifically stated . . . otherwise such issues will be treated as waived.” W e do have the autho rity to address the trial court’s failure to charge the jury on ap propr iate 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 Defendant was convicted by the jury of second degree murder, felony murder and especially aggravated robbery. The trial court merged the offense of

-20-second degree murde r into the conviction for mu rder in the perpe tration of a felony. Likewise, even if the jury had been charged with voluntary manslaughter and crimin ally negligent homicide and had delivered a guilty verdict on each of those counts, both volunta ry ma nslau ghter a nd crim inally negligent homicide convictions would have been merged by the trial court into the conviction for felony murder. The result would have been the same as Defendant’s current conviction for felony murder. There fore, any e rror in failing to charge these offenses is harmless. Tenn. R. App. P. 36 (b); Tenn. R . Crim. P. 52(a).

P ROSECUTORIAL MISCONDUCT

Defendant asserts in his brief that the State’s prosecutor conducted 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 witness during trial recess, and noting Defendant’s expunged conviction during the trial. Defendant’s motion for new trial specifically asserts that the trial court erred “in allowing the State to argue during the sentencing phase, matter which was outside the scope of the aggravating factors presented by the State.” There is no mention in his motion for new trial of any communication by the prosecutor with a witness during the trial or of any failure by the State to com ply with discovery. During the Defendant’s hearing on the motion for new trial, his counsel orally requested that the portion of his motion referencing the “sentencing 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 rosecutorial 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 court and is, therefore, waived. Tenn. R. App . P. 3(e); State v. Clinton, 754 S.W .2d 100 , 103 (T enn. C rim. App . 1988).

-21-

After a thorough review of the law 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

-22-