IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 4, 1999
Cecil Crowson, Jr.
FEBRUARY SESSION, 1999 Appe llate Court
Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CC-00105
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
WILLIAM DOTSON, ) JUDGE
)
Appe llant. ) (Direct Appeal - Attempted Second
) Degree Murder and Aggravated
) Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
JOE COSTNER JOHN KNOX WALKUP
315 High Street Attorney General and Reporter
Maryville, TN 37804
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
EDWARD P. BAILEY, JR.
KIRK ANDREWS
Assistant District Attorneys
363 Court Street
Maryville, TN 37804
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
On February 20, 1990, Appellant William Dotson was indicted by the
Blount Coun ty Grand Jury for attempted first degree murder, aggravated assau lt,
and aggravated robbery . After a jury trial on Nove mber 19 –22, 1996 , the jury
acquitted Appellant of attempted first degree murder, but failed to reach a verdict
on the charge of aggravated robbery, the charge of aggravated assault, and on
all lesser included offenses of attempted first degree murder and aggravated
robbery. Appellant was subsequently tried for attempted second degree murder
and aggra vated robbe ry on J uly 15 –17, 1 997. O n July 17, 1997, Appellant was
convicted of attemp ted second degree murder and aggravated robbery. On
February 23, 1998, the trial cou rt sentenced A ppellant as a R ange I stand ard
offender to consecutive terms of twelve years for each conviction. Appellant
challenges his convictions, raising the following issue: w hether the trial court
erred when it refused to grant a mistrial after a witness for the Sta te testified that
Appellant had been arreste d for a federal paro le violation. After a review of the
record , we re verse the jud gme nt of the trial cou rt and re man d for a n ew tria l.
FACTS
Steven Bartlett testified that he was working as a gas attendant at the
Smoky View Mark et in Blo unt C ounty on De cem ber 31 , 1989 . At app roxim ately
11:00 p.m., Bartlett was checking the gas pumps when a dark-colored 1979
Cama ro pulled into the parking lot. When two men wearing ski masks and
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carrying guns got out of the Camaro and went into the store, Bartlett hid behind
a gas p ump . While he wa s beh ind the pum p, Bar tlett cou ld see that the driver of
the Cam aro ha d rem ained in the vehicle. Bartlett identified the driver as Larry
Goodwin. The two men stayed in the store for approximately five to ten minutes
before getting back in the Camaro.
Kari Irwin testified that she was working at the Smoky View Market on
December 31, 1989, when she heard a customer scream. Irwin then looked up
and saw one man pointing a gun at her and saw another man with a gun standing
next to a pay phon e by th e doo r. The m an wh o was pointin g a gu n at Irw in
ordered her to open the ca sh register. Irwin ope ned the registe r, and the armed
man took the money from the register and took a bag that had m oney in it. Irwin
testified that even though both of the armed men were wearing ski masks, she
could tell that the man pointing the gun at her was Caucasian and had blue eyes.
When the two men left, Irwin called the owner of the store and the police. Irwin
could no t identify the m an wh o pointed a gun a t her.
Depu ty Jerry Orr of the Blount County Sheriff’s Department testified that
on the evening of December 31, 1989, he received a report that there had been
an armed robbery at the Smo ky View M arket. Orr also received information that
a 1970 ’s mo del da rk-colo red C ama ro wa s involved in the ro bbery . Shor tly
thereafter, Orr saw a vehicle that matched the description he had been given.
Orr then notified some other police officers that he had seen the vehicle and he
began pursuit. When Orr turned on the blue lights of his police vehicle, the front
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passenger of the Ca maro c limbed through the w indow, sat on top of the door,
and fired three shots at Orr. Orr testified that the man who shot at him had the
same amou nt of baldn ess as A ppellant.
Orr testified that as he continued the pursuit of the Camaro, he and the
front passenger of the Camaro exchanged gunfire. Shortly thereafter, several
other police officers joined the chase. Orr testified that at one point in the chase,
his car collided with the Camaro, and he was able to see that the driver of the
Cama ro was Richard Burchfield. Orr subsequently lost sight of the Camaro, but
he even tually saw that the Camaro had been driven into a lake and some other
police officers ha d taken Good win into cu stody. O rr testified that he had seen
that Go odwin w as the pa sseng er in the ba ck seat o f the Cam aro.
Officer Ron Boruff of the Alcoa, Tennessee Police Department testified that
he participated in the pursuit of the Camaro on December 31, 1989. When O rr
left the chase, Boruff continued the pursuit. The front passenger of the Cam aro
fired three sh ots at Bo ruff. Boruf f contin ued p ursuit u ntil the Cam aro drov e into
a shallow lake. The driver and the front passenger got out of the Camaro and ran
away, but Goodwin fell as he attempted to run and he was apprehended by
Boruff an d anoth er officer.
Sandra Norto n testifie d that G oodw in, Bur chfield , and A ppella nt we re all
at her house on December 31, 1989. The three men arrived at Norton’s house
at approximately 6:00 or 6:30 p.m. and they left approximately one hour later.
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Norton was not sure whether the thre e me n all left in the same vehicle, but she
knew that at leas t one of the m drov e awa y in a dark Cam aro.
Richard Burchfield testified that he had been drinking heavily all day on
December 31, 1989. Burchfield testified that although he had pled guilty to the
robbery of the Smoky View Market and to aggravated assault, he could not
remember going into the market and he could not remember who had entered the
market with him. Burchfield testified that he had been driving the Camaro when
it went into the lake, b ut he c ould n ot rem emb er wh o else was in the ca r with h im
when it went into th e lake. H e assu med th at Goo dwin an d Appe llant were with
him becau se that is w hat he h ad bee n told. Bur chfield could not remember
whether he had fired any s hots during the police chase, but he did not think that
he had. Burchfield also testified that he turned himself in to the police the next
day.
Larry Goodwin testified that he met Appellant and Burchfield at the place
where Burchfield was living on December 31, 1989. Later that evening, the three
men went to the Smoky View Market. Goodwin testified that he drove the
Cama ro to the market, Burchfield sat in the front passenger seat, and Appellant
sat in the bac k seat. W hen they reached the store, Goodwin stayed in the car
while Appellant and Burchfield went in. When the two men came out of the
marke t, Burch field go t in the front passenger seat and Appellant got in the back.
Good win then drove a way.
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Goo dwin testified that shortly after he drove away from the Smoky View
Marke t, Burch field told him to stop th e veh icle. Bu rchfield got in the driv er’s seat,
Goodwin got in the b ack sea t, and Ap pellant go t in the front p assen ger sea t.
When a police vehicle began pursuit, Appellant leaned out of the front passenger
window and began shooting at the police vehicle with a rifle and then with a
pistol.
Goo dwin testified that after he was caught, he had initially lied to the police
about the events surrounding the rob bery a nd su bseq uent c hase . Goo dwin also
testified that he had given several different acc ounts of the ev ents. How ever,
Good win testified that he w as telling the truth at trial.
Depu ty Marshall Ronald Donelson of the United States Department of
Justice testified that he arrested Appellant in Greenville, South Carolina, on Ap ril
24, 1995. W hen the prosec utor aske d Don elson w hy he h ad arres ted App ellant,
Donelson responded, “Mr. Dotson was arrested on the basis o f a fede ral paro le
violation warrant.” Defense counsel then requested a bench conference during
which he objected to Donelson’s statement, requested a curative instruction, and
moved for a m istrial. Th e trial court told defense counsel it would consider the
motion for a mistrial and the court gave the prosecutor specific instructions about
how to question Donelson. After a series of questions, the prosecutor asked
Donelson whether Appellant was arrested on a fugitive warrant from Tennessee
for flight to avoid prosecution for the charges at issue in this case. Donelson then
stated, “That’s another reason, yes, sir.” Defense counsel then requested
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another bench conference during which he again m oved for a mistrial because
Donelson had “just reinforced what he sa id earlier.” The trial court stated that it
wou ld cons ider the matte r later, an d the p rosec utor co ntinue d with D onels on’s
direct examination. At the beginning of trial the next day, the trial court instructed
the jury as follows:
Yesterday, you heard testimony, one of the last witnesses, a Deputy U.S.
Mars hall, Ron Donelson. You’re instructed to disregard the statement by
Mr. Donelson that the Defen dant, M r. Dotson , was arre sted in S outh
Carolina on fede ral proce ss, and y ou sha ll not consid er that part of his
testimon y for any p urpose at all.
Although the reco rd is not en tirely clear, this instruction was apparently given
approx imately e ighteen hours a fter Done lson’s testim ony.
ANA LYSIS
Appellant contends that the trial court should have granted his request for
a mistrial after Donelson testified that Appellant had been arrested for a federal
parole violation. Specifically, Appellant contends that he was prejudiced by
Don elson ’s testimony because it informed the jury that Appe llant had been
convicted of some unknown federal crime in the past and created the impression
that Appe llant had violated his federal parole by committing the offenses for
which he was charged in this case. Appellant also contends that when Donelson
testified that the Tennessee fugitive warrant was “another reason” that Appellant
had been arrested, this reinforced the testimony about the federal parole violation
and also created the impression that Appellant was facing other charges besides
those in this case . Appellant place s great em phasis on the fact that the trial court
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failed to give a curative instruction until approximately eighteen hours after
Donelson’s improper testimony.1
The decision of wheth er 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 an abuse of discretion.
State v. Adkins, 786 S.W .2d 642 , 644 (Te nn. 199 0). “Gen erally, a mistrial will be
declared in a criminal case only when there is a ‘manifest necessity’ requiring
such action by the trial judge .” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn.
Crim. App. 1991). “The purpose for declaring a mistrial is to correct damage
done to the judicial process when some event has occurred which precludes an
impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.
1996). In determining whet her the re is a “manifest necessity” for a mistrial, “‘no
abstract formula should be mechanically applied and all circumstances should be
taken into account.’” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993)
(citation omitted).
There is no ques tion tha t Don elson ’s testim ony a bout A ppella nt’s federal
parole violation was im prope r. This te stimo ny ob vious ly had no relevance to any
issue in the case and w as clea rly preju dicial. D onels on’s testimony informed the
jury that Appellant had previously been convicted of a federal crime and created
the impression th at Appellant ha d violated his fede ral parole by committing the
1
We note that Appellant does not contend that the prosecutor intentionally elicited the
objec tiona ble te stim ony from Don elso n or a cted impr ope rly in a ny ot her m ann er in c onn ectio n with this
testimony. In fact, defense counsel expressly stated during the hearing on Appellant’s motion for a new
trial that the pro secuto r had ne ver acte d impro perly in reg ard to Do nelson’s testimon y.
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offenses for wh ich he was c harge d in this case . In add ition, Do nelso n’s
subsequent testimony that the Tennessee fugitive warrant was “another reason”
that Appellant was arr ested se rved to emp hasiz e the te stimo ny ab out Ap pellan t’s
federal parole violation. Of course, even though Donelson’s testimony about
Appe llant’s federa l parole violatio n was clearly inadm issible a nd wa s clear ly
prejud icial, a mistrial was only required if the error created a “manifest necessity”
for a mistria l.
We have exam ined n ume rous c ases in which th e failure to g rant a mistrial
has been upheld on appeal. While Tennessee Courts do not apply any rigid test
when examining the failure to grant a mistrial after a witness has given improper
testimony, there are certain factors that are often considered: (1) whether the
improper testimony was elicited by the State or whether it was a spontaneous
declaration by the witness, (2) whether the case against the defendant was
strong or weak, and (3) whether the trial court gave a prompt curative instruction.2
See, e.g., State v. Hall, 976 S.W.2d 121, 147–48 (Tenn. 1998) (holding that
improper testimony about defendant’s prior crime did not create a manifest
neces sity for a mistrial because trial court gave an immediate curative
instruction); State v. Ma this, 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997)
(holding that improper testimony did not cre ate a m anifest ne cessity for a mistrial
because trial court ga ve a pro mpt cu rative instru ction); State v. Hall, 947 S.W.2d
181, 184 (Tenn. Crim. App. 1997) (holding that improper testimony about
2
We note that these three factors are by no means the only factors which are relevant to a
determination of whether the trial court properly refused to grant a mistrial nor is it necessary to examine
these factors in every unique case. Rather, these are three factors which are often examined in cases
such as this one, and we conclude that they are especially important in this case.
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defen dant’s prior incarceration did not create a manifest necessity for a mistrial
because trial court gave a promp t curative ins truction); State v. McKinney, 929
S.W.2d 404, 405 (Tenn. Crim. App. 1996) (holding that improper testimony about
defen dant’s prior crime did not create a manifest necessity for a mistrial because
the evidence of defend ant’s guilt w as ove rwhelm ing); William s, 929 S.W.2d at
388 (holding that improper testimony about defendant’s prior bad acts did not
create a manifest necessity for a mistrial because trial court ga ve an im media te
curative instruction ); State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993)
(holding that improper testimony did not create a ma nifest necessity for a mistrial
because the evidence against the defendant was strong and the trial court gave
an imme diate cura tive instructio n); Millbrooks, 819 S.W.2d at 443 (holding that
improper testimony did not create a manifest necessity for a mistrial because trial
court gave a promp t curative ins truction); State v. David T. Jones, No. 01C01-
9710-CC-00445, 1998 WL 917810, at *2 (Tenn. Crim. App., Nashville, Dec. 21,
1998) (holding that improper testimony did not create a manifest necessity for
a mistrial because the testimony was wholly unsolicited, there was overwhelming
evidence of guilt, and th e trial court g ave an imme diate cura tive instructio n); State
v. Bill Sandel, No. 03C01-9606-CC-00237, 1998 WL 28260, at *3 (Tenn. Crim.
App., Knoxville, Jan. 26, 1998) (holding that improper testimony about
defend ant’s prior c riminal ac ts did not cre ate a m anifest ne cessity for a mistrial
because the testimony was spontaneous and nonresponsive and the trial court
gave a proper curative instruction); State v. Grover Livesay, No. 03C01-9510-CC-
00298, 1996 WL 578499, at *3–4 (Tenn. Crim. App., Knoxville, Oct 9, 1996)
(holding that improper testimony did not create a ma nifest necessity for a mistrial
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because the testimony was unresponsive and the trial court gave an imm ediate
curative instruction).
Initially, we note that contrary to the State’s assertions, the prosecutor in
this case is not entirely blameless for Donelson’s improp er statem ents. W e
agree with the State tha t there is nothing in the re cord which indicates that the
prosecutor intentiona lly elicited Do nelson ’s statem ent that A ppellant had been
arrested for a feder al parole v iolation. In fact, it appears from the record that the
prosecutor did not expect Donelson to refer to the federal parole violation.
Howe ver, Donelson’s response was hardly unforeseeable. Inde ed, it is
reaso nable to assume that when a United States deputy marshall who has
arrested a person because of a federal parole violation is asked why he arrested
that person, the deputy marshall would likely respond that he arrested the person
for a federa l parole vio lation. The prosec utor should hav e fores een th at his
question about why Appellant was arrested invited exactly the kind of response
that Donelson gave.
Second, we note that the evidence of Appellant’s guilt was far from
overwhelming. Although several witnesses testified that one of the masked men
who comm itted the armed robbery and subsequently fled the police in the
Cama ro had physical characteristics that were generally consistent with those of
Appe llant, Goodwin was the only witness who ever positively identified Appellant
as one o f the pe rpetra tors of th e crim es at iss ue in th is case . Furthe r, Goo dwin
expre ssly adm itted tha t he ha d bee n untru thful in s evera l of the statements he
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had given the police in regard to the armed robbery and subsequent police
chase. Goodwin testified that in his initial interview with the police, he had lied
about several asp ects o f the rob bery a nd ca r chas e and had a lso with held
information about his two accomplices. Goodwin also testified that he
subs eque ntly gave the po lice as m any d ifferent s tories a bout th e eve nts in
question as he possibly could. Goodwin testified that in addition to lying to the
police, he ha d also lied to o ther pe ople abou t the ev ents a t issue in this case. In
addition, Goodwin testified that his criminal record c onsis ted of a pprox imate ly
twenty-s even fe lony con victions.
Third, we no te that th e trial co urt did not give a curative instruction until the
day after Donelson had testified, and although the record is not entirely clear, the
instruction was apparently not given until approximately eighteen hours after the
improp er testimo ny. We agree with the State that there is no per s e rule that a
curative instruc tion m ust be given imm ediate ly in order to b e effective . Howev er,
as indicated by the authorities cited above, the vast majority of cases in which
Tennessee Cour ts hav e uph eld a tria l court’s failure to grant a mistria l in
situations similar to the one in this case have based that determination at least
partly on the fact tha t a cura tive instruction was given immediately or at least
shortly after the improper testimony. We conclude that in this case, the trial
court’s failure to give a promp t curative ins truction afte r Done lson referr ed to
Appe llant’s federa l parole violatio n and subs eque ntly reinforced that testimony
was especially prejudicial. The general rule is that the jury is presumed to follow
the trial cou rt’s instruction not to con sider the im proper te stimon y. See Math is,
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969 S.W.2d at 422. However, because the trial court did not give the curative
instruction until the day after Donelson made the imprope r statements, the jury
had a minim um of a pproxim ately eigh teen ho urs durin g which they we re free to
consider the fact that Appellant had been arrested for a federal parole violation.
It is clear that Donelson’s improper testimony created the need for a prompt
curative instruction in order to p revent u nfair prejud ice to Ap pellant, an d in fact,
the prosec utor exp ressly ag reed w ith defense counsel that Donelson’s improper
testimony required a prompt curative instruction.3
We conclude that in this case, Donelson’s improper testimony about
Appe llant’s federal parole violation created a “manifest necessity” for a mistrial
because the trial court’s failure to give a curative instruction until appro xima tely
eighteen hours after the improper testimony precluded an impartial verdict. It has
not escaped our notice that the jury in Appellant’s first trial was unable to reach
a verdict on the charges for attempted second degree murder, aggravated
robbery, and all lesser included offenses.4 While we do not have the transcript
of the first trial before us, we presume that Donelson did not testify about
Appe llant’s federal parole violation in th e first trial. If Done lson did n ot testify
about Appe llant’s fe deral p arole v iolation in the first trial, the n App ellant’s
argument that he was unfairly prejudiced by the improper testimony in the second
trial is strengthened even more . If Done lson d id give the im prope r testim ony in
3
The reco rd ind icate s tha t after objec ting to Don elso n’s re feren ce to App ellant ’s fed eral p arole
violation, defense counsel stated that he believed the trial court should “instruct the Jury to disregard what
[Donelson] just said.” The prosecutor then stated, “Yeah, I think you better.”
4
The record indicates that for the charge of attempted second degree murder, seven jurors voted
for guilty and five jurors voted for not guilty. For the charge of aggravated robbery, nine jurors voted for
guilty and th ree jurors voted for n ot guilty.
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the first tria l, the pro secu tor’s failu re to pre vent th is error from h appe ning a gain
in the second trial is inexcusable.
Accordingly, the jud gme nt of the trial cou rt is RE VER SED and th is case is
REM AND ED fo r a new trial.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
L. T. LAFFERTY, SENIOR JUDGE
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