IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
May 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
) No. 01C01-9605-CC-00186
Appellee, )
) Houston County
v. )
) Honorable Robert E. Burch, Judge
)
BASIL MATHIS, ) (Attempted First Degree Murder)
)
Appellant. )
For the Appellant: For the Appellee:
Clifford K. McGown, Jr. (trial only) John Knox Walkup
113 North Court Square Attorney General and Reporter
Waverly, TN 37185 and
and Daryl J. Brand
Jim Sowell (appeal only) Assistant Attorney General
118 North Main Street 450 James Robertson Parkway
Dickson, TN 37055 Nashville, TN 37243-0493
Dan Mitchum Alsobrooks
District Attorney General
and
George C. Sexton
Assistant District Attorney General
Second Floor
Humphreys County Courthouse
Waverly, TN 37185
OPINION FILED:
AFFIRMED
Joseph M. Tipton
Judge
OPINION
Defendant, Basil Mathis, was convicted by a jury in the Houston
County Circuit Court of attempted first degree murder, a Class A felony, and
sentenced to twenty (20) years in the Tennessee Department of Correction. In this
appeal as of right, he raises the following issues for our review:
(1) whether the evidence was sufficient to sustain the
conviction for attempted first degree murder;
(2) whether the trial court erred by admitting evidence
of a pre-trial statement by a witness under the recorded
recollection exception to the hearsay rule;
(3) whether the trial court erred in denying a motion
for mistrial due to evidence of alleged prior threats
by the defendant; and
(4) whether the trial court erred in denying a motion
for mistrial due to the death of a juror’s father just
prior to deliberations.
We do not believe that any of these issues merit relief, and we affirm the judgment
of the trial court.
FACTS
On October 3, 1992, George Powell, Allen Ortago and Talmadge
Agee were conferring along the side of a road in Houston County. Upon seeing
Jerry Mathis and the defendant approaching in their vehicle, Powell placed a pistol
in his pocket because he had a prior altercation with the Mathises. All five men
engaged in casual conversation beside the road. The defendant picked up a pistol
he saw in the back of Agee’s truck. After he put the pistol back, Jerry Mathis picked
it up and, without provocation, shot and killed Agee. Jerry Mathis shot several more
times and wounded Ortago and Powell as they were fleeing.1 After running some
distance, Powell fired two shots and his pistol jammed. Powell continued to run
and heard Jerry Mathis yell, “kill the son of a bitches, kill the son of a bitches!”
Powell looked back and observed the defendant running toward the defendant’s car
and then saw the defendant come back around the vehicle. Powell heard five more
shots. Powell was not hit by these shots, however.
1
In a separate proceeding, Jerry Mathis was convicted of the murder of Talmadge Agee and
the attem pted m urder of Allen Orta go and Georg e Powe ll.
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A neighbor heard eleven or twelve shots being fired. Some of the
shots had a different sound, but it sounded as if all shots came from a small caliber
weapon.
Wayne Powell, a cousin of Jerry Mathis and the defendant, talked to
both of them shortly after the shooting. He stated that the defendant admitted to
“shooting at the ones running off.” The defendant also stated he was kidded by
Jerry Mathis “for emptying his gun and not hitting anybody.” Both Jerry Mathis and
the defendant were laughing about it. Wayne Powell also confirmed that he had
seen the defendant with a .38 caliber revolver on several prior occasions.
Scientific testing for gunshot residue conducted on the defendant
revealed that he “could have fired, handled, or was near a gun when it fired.”
The defense presented no proof at trial.
SUFFICIENCY OF THE EVIDENCE
In Tennessee, great weight is given to the result reached by the jury in
a criminal trial. A jury verdict accredits the state’s witnesses and resolves all
conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.
1978). Moreover, a guilty verdict removes the presumption of innocence which the
appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of
overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is challenged, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
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favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime or crimes beyond a reasonable doubt. T.R.A.P. 13(e);
Jackson v. Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401
(Tenn. 1996). The weight and credibility of the witnesses’ testimony are matters
entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
In this case, there was ample evidence for the jury to convict the
defendant of the attempted first degree murder of George Powell. Jerry Mathis,
after firing several shots, was heard to yell, “kill the son of a bitches”; the defendant
was seen going to his car and coming back around the car; and five more shots
were then fired. Furthermore, the defendant’s statements to Wayne Powell
acknowledging his participation in the shooting were also before the jury. Certainly,
the jury had sufficient evidence before it to conclude that the defendant acted
intentionally, deliberately and with premeditation in an attempt to kill George Powell.
This issue is without merit.
RECORDED RECOLLECTION
The witness, Wayne Powell, testified on direct examination that he
spoke with the defendant shortly after the shooting. The witness then stated that
during the conversation the defendant did not say anything about shooting at
anybody. The prosecutor then showed the witness his sworn statement that he had
given to the Tennessee Bureau of Investigation (TBI). In this statement, Powell
said that the defendant admitted to the shooting and had laughed about not being
able to hit anyone. After reviewing this statement, Powell then testified that the
defendant said that he had gone to the car to get his gun and shot once or twice at
the “one running.”
Subsequently, Powell stated that he could not remember all the
statements he made to the TBI. He further testified that the statement he gave to
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the TBI would have been correct, but that he was unable to “remember everything
that’s in there, today.” At this point, the prosecutor read to Powell from his pretrial,
written, sworn statement in which Powell said that the defendant had admitted to
the shooting and was laughing about it.
The admissibility of this evidence is controlled by Rules 612 and
803(5), Tenn. R. Evid. The first rule concerns present recollection refreshed, and
the latter concerns the past recollection recorded hearsay exception. There is a
thin line between present recollection refreshed and past recollection recorded.
Neil P. Cohen et al., Tennessee Law of Evidence, § 612.1, at 401 (3d ed. 1995).
In this case, when Powell first testified that the defendant had not
admitted to the shooting, he was immediately shown his statement to the TBI. After
reading that statement and without the statement being read into or admitted into
evidence, Powell testified that the defendant had made such an admission. This
evidentiary issue is controlled by Rule 612, present recollection refreshed.
However, a writing can be used for this purpose only if a witness’ memory requires
refreshing. See, Tenn. R. Evid. § 612, Advisory Commission Comments. At the
point Powell was shown the statement, it had not been established that his memory
needed refreshing. Accordingly, the evidence at the time of its admission did not
qualify under Rule 612. However, it became evident later in Powell’s testimony that
he had insufficient recollection at trial to testify fully as to what the defendant told
him. Thus, the factual foundation needed to refresh the witness’ memory was
ultimately shown, a circumstance that would still justify the previous refreshing.
See Tenn. R. Evid. 104(b).
Also, Powell’s testimony reflects that he claimed little recollection at
trial regarding what the defendant told him, even when shown his former statement.
Moreover, it was apparent that his statement to the TBI was made at a time when
the matter was fresh in his memory, and his statements accurately reflected his
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knowledge at that time. It was at this point that the state read into evidence
pertinent portions of the witness’ statement to the TBI confirming that the defendant
had made incriminatory admissions. The statement itself was not introduced as an
exhibit. These circumstances met all of the requirements of Rule 803(5), the
recorded recollection exception to the hearsay rule. There was a written record; it
concerned a matter about which the witness once had knowledge; the witness at
trial had an insufficient recollection to testify fully and accurately; the statement was
“adopted” (signed) by the witness; it was made while the matter was fresh in his
memory; and it accurately reflected his knowledge. Neil P. Cohen et al.,
Tennessee Law of Evidence, § 803(5).2, at 557-58 (3d ed. 1995).
The trial court’s premature allowance of Powell’s examination of his
pretrial statement to refresh his recollection was completely harmless. T.R.A.P.
36(b). Likewise, because the content of the statement was read pursuant to Rule
803(5), Tenn. R. Evid., the evidence was properly before the jury. This issue is
without merit.
ALLEGED THREATS BY DEFENDANT
George Powell testified during direct examination that the deceased,
Talmadge Agee, had a meeting with Jerry Mathis and the defendant “about them
passing threats on to us . . . .” After an objection, the trial court in a jury-out hearing
determined that the witness should not go into prior incidents. W hen the witness
was subsequently asked why he had ejected the clip to his gun after firing the two
shots, he stated “. . . since the time that I had heard about some threats . . . .” An
objection was made mid-sentence and sustained, and the jury was given extensive
instructions that the case must be decided on the basis of what happened on the
day in question and not before that day. The defendant contends the trial court
erred in not granting his request for a mistrial.
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The decision of whether to grant a mistrial 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 that decision absent a finding of abuse of
discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). Furthermore, we presume that the
jury followed the trial court’s explicit instructions not to consider the inappropriate
comment. State v. Smith, 893 S.W.2d 908, 923 (Tenn. 1994). In light of the limited
nature of the offending testimony and the trial court’s prompt curative instruction,
the trial court did not abuse its discretion in refusing to grant a mistrial. See State v.
Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993).
DEATH OF JUROR’S FATHER
At the conclusion of all the proof, the trial court adjourned after 4:00
p.m. on a Friday afternoon with instructions for the jury to return the following
Tuesday morning. When the jury returned on Tuesday morning, the trial court
learned of the death of one of the juror’s father. The funeral was to be that
afternoon. Upon inquiry by the trial court, the juror stated she would be able to
deliberate as long as she could leave by 1:00 p.m. The trial court advised the juror
that if they were not finished with deliberations by 1:00 p.m., they would stop so that
the juror could attend the funeral. The trial court determined the juror was “perfectly
competent” to continue to sit as a juror. The jury retired for deliberations at 10:50
a.m. and returned with its guilty verdict at noon.
The decision of whether to declare a mistrial when a juror is informed
of the death of a member of his or her family rests within the sound discretion of the
trial court. See State v. McCray, 614 S.W.2d 90, 93 (Tenn. Crim. App. 1981). In
this case, the trial court questioned the juror as to her ability to continue, and she
responded in the affirmative. The juror was informed that deliberations would
cease at such time as she had to leave for the funeral. We conclude that the trial
court’s discretion was properly exercised in refusing to declare a mistrial.
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In consideration of the foregoing and the record as a whole, the
judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
____________________________
Jerry L. Smith, Judge
____________________________
Joe G. Riley, Judge
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