State v. Bowman

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL SESSION, 1997 January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00226 )

Appellee, )

)

) SULLIVAN COUNTY

VS. )

) HON. R. JERRY BECK

JOHNNY LEE BOWMAN, ) JUDGE )

Appe llant. ) (Dire ct Ap pea l-Agg ravat ed P erju ry)

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 T. RYAN

Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

DOUGLAS DIMOND

Legal Assistant

GREELEY W ELLS

District Attorney General

EDWARD WILSON

Assistant Attorney General P. O. Box 526

Blountville, TN 37617

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Johnny Lee Bowman appeals from a jury verdict rendered on September 12, 1995 in the Sullivan County Criminal Court finding him guilty of aggravated perjury. As a Range III persistent offender, Appellant received a sentence of ten years confinement in the Tennessee Department of Correction. Appellant presents two issues for consideration on this direct appeal: (1) whether claimed memory loss constitutes a retraction of perjured testimony within the meaning of Tenn. Code Ann. § 39-16-704; and (2) whether the evidence is sufficient to sustain Appellant's conviction for aggravated perjury.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

The proof shows that on December 22, 1987, Appellant gave a signed and sworn statement to Officer Bill Smith of the City of Bristol Police Dep artme nt. In this statem ent, Ap pellan t implic ated M ichae l Scott a nd him self in the November 9, 1987 burglary of a vehicle. Appellant stated that he served as a lookout while Scott burglarized the car and stole a suitcase conta ining w ome n's clot hing, a purse , and a pair of s hoes . At Ap pellan t's trial, Officer Smith testified that when Appellant gave his December 22, 1987 statement, Appellant did not appear to be under the influence of either alcohol or drugs . Moreov er, Officer S mith exp lained tha t, during his emplo ymen t with the Bristol Police Department, Smith had known Appellant quite well and had

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never known Appellant to use either drugs or alcohol. On January 20, 1989, Appellant pleaded guilty in the Sullivan County Criminal Court to the automobile burglary and to petit larceny. In his plea, Appellant agreed under oath that the facts o f the burglary set out in h is Decem ber 22 statem ent were true and correct. Appellant declined to supplement his statement in any respec t and also declined to mak e any ad ditional state ment.

On December 12, 1994, Michael Scott was finally tried for his role in the burglary, a s the auth orities had failed to loca te Scott p rior to this time . See State v. M ichael Sc ott, No. 228 48-850 , (Sullivan C ounty, D ecem ber 12, 1 994). Appe llant was c alled as a prosec ution witne ss in the S cott trial. At the S cott trial, Appellant initially testified on direct examination that he alone burglarized the vehicle and denied ever having served as a lookout for Scott. He then stated that he could not remember whether or not anyone else had participate d in the co mm ission of the burglary. A ppellant c ontinue d, "I honestly do not remember 1987. That's been seven years ago. There's been an extremely lot of things happen in my life since then, so, I couldn't give you an honest answer." Appellant then testified that he did not remember giving a statement to Officer Smith. When asked to identify his signature on the statement allegedly given by him to Officer Smith, Appellant responded, "Tha t's my w riting." H e then stated , "Tha t don't re ally look like it now , but it could have been seven years ago, I guess." Appellant then stated that he could no t positively say whethe r or not the signature on the sta temen t was his. Finally, Appellant flatly denied that the handwriting on the December 22, 1987 statement was his. Appellant then reiterated, "I don't remember a whole lot about seven years ago." W hen aske d whether h e recognize d the signature

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on the "Advice, Waiver of Rights" form, Appellant responded, "That looks a little mo re like it, s ir." App ellant th en tes tified, "I do n't reca ll ever se eing th is paper before in my entire life, sir." When again asked whether or not the signature on the form was his, Appellant replied that "It could be" but that he could no t say positive ly that the sign ature wa s his.

On cr oss-e xamin ation, A ppella nt expla ined th at the re ason for his inability to remember 1987 is because he was an alcoholic and a drug addict at that time. Furthermore, Appellant admitted that he was "high" much of the time and that he used alcohol, marijuana, and cocaine.

At Appellant's trial for aggravated perjury, the State introduced redacted transc ripts of A ppella nt's Ja nuary 20, 19 89 ple a hea ring an d of Ap pellan t's testimon y given du ring the S cott trial. At the c lose of the State's pr oof, Appe llant m oved fo r a judg men t of acq uittal, bu t the trial c ourt de nied th is motion . The ca se wen t to the jury wh ich convic ted App ellant.

II. CLAIMED MEMORY LOSS AS RETRACTION OF PERJURED TESTIMONY Appellant’s first contention is that his alleged memory loss constitutes a “retraction” of his perjured testimony. Tennessee Code Annotated Section 39- 16-704 provides:

It is a defense to pro secution for agg ravated perjury that the person retracted the false sta tement be fore completion of the testimony at the official proceeding during which the aggravated perjury was committed.

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The question of whether claimed loss of memory constitutes a retraction and th erefor e a de fense to agg ravate d perju ry is an is sue o f first imp ressio n in Tenn essee . Indeed, w e have fo und on ly one cas e which directly dea ls with this question. In United States v. Veisch, 724 F.2d 451 (5th cir. 1984); the defendant, an attorney, appeared before a grand jury and denied that he had ever instru cted an yone to lie b efore a g rand jury. Id. at 458.

However, unknown to Vesich, the prosecution possessed a tape recordin g of a con versation which V esich ha d had w ith an imp risoned client. Id. at 459 n. 16. In this co nversation, Ves ich urged his client “to g et a story straight for when you do go [before the grand jury]” and informed his client that the gran d jury cou ld not prov e that his c lient was lying . Id. at 459 n.1 6. Following Vesich’s denial that he had ever urged any individual to lie before a grand jury, Vesich repeatedly responded to questions pertaining to the recorde d conve rsation by professin g his inab ility to recall certain statem ents made by him d uring tha t convers ation. Id. At 460. The Fifth Circuit Court of Appeals held in Vesich that the defendant’s claimed memory loss was insufficient to establish the defense of recantation under 18 U.S.C. § 1623(d)1 . Vesich, 724 F.2d 451, 460.

1 At the time of the Vesich decision, 18 U.S.C. Section 1623 provided:

Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such dec laratio n to b e fals e, su ch ad mis sion shall b ar pro sec ution unde r this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

Vesich, 724 F.2 d 451, 46 0.

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It is clear that T enne ssee Code Anno tated S ection 39-16 -704 is designed to provide an incentive to the perjurer to tell the truth before the falsity ca n do a ny har m. If ha ving lied the pe rjurer k nows he ca n avoid prosecution by recanting, the theory is he will have more reason to tell the truth then if recantation would gain him nothing. This policy is hardly served by a claim of memory loss. Indeed, a claim of memory loss makes the search for truth more difficult. We agree with the Veisch court that memory loss does not establish a recantation defense.

III. SUFFICIENCY OF THE EVIDENCE Appe llant als o cha llenge s the s ufficien cy of the eviden ce to s ustain his convic tion for a ggrav ated p erjury. W e find th at the e videnc e is con stitution ally sufficient.

This Court is obliged to review challenges to the sufficiency of the convicting evidence according to certain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replace s it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). H ence, o n appe al, the burd en of pro of rests with Appella nt to demo nstrate the insufficienc y of the con victing evide nce. Id. On appeal, "the [S]tate is entitle d to the strong est leg itimate view of th e evide nce a s well a s all reason able an d legitima te inferenc es that m ay be dra wn there from." Id. (citing

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State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is wh ether an y rational trier o f fact could have fou nd the a ccused guilty of every ele ment o f the offens e beyon d a reas onable doubt. Harris , 839 S.W .2d 54, 75 ; Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidenc e. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W .2d 776, 779 . Finally, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal actions whether by the trial co urt or jury sha ll be set asid e if the evide nce is insu fficient to suppo rt the finding s by the trier o f fact of guilt be yond a re asona ble dou bt." See also Matthews, 805 S.W.2d 776, 780.

We stated in Matthews that "A criminal offense may be established exclusively by circumstantial evidence. However, before an accused may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circum stances `m ust be so stron g and cog ent as to exclude every other reasonable hypothesis save the guilt of the defendant.'" 805 S.W.2d 776, 779-80 (quoting State v. Crawfo rd, 470 S.W .2d 610, 612 (Tenn. 197 1)).

T ENN. R. C RIM. P. 29(a) p rovides in p art, "The court on motion of a defendan t. . . shall order the entry of judgm ent of acquittal of one or more offenses charged in the indictment or information after the evidence on either

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side is closed if the evidence is insufficient to sustain a conviction of such offense or offense s." Id. Furthermore, in dealing with a motion for judgment of acq uittal, bo th the tria l court a nd this Cour t are ob ligated to con sider o nly all of the evide nce introd uced b y the State . State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). Finally, when resolving a motion for judgment of acquittal, the trial court's sole concern is the legal sufficiency of the evidence, and the trial court is pre cluded from rew eighing th e eviden ce. State v. Adams, 916 S.W .2d 471 , 473 (T enn. C rim. App . 1995); Hall, 656 S.W.2d 60, 61.

Tenn. Code Ann. § 39-16-702(a)(1) provides that "(a) A person commits [perjury] who, with intent to deceive:

(1) Mak es a false statem ent, und er oath." Id. Tenn. Code Ann. § 39-

16-703 (a) provide s, "(a) A pe rson co mm its [aggrava ted perju ry] who, with intent to deceive:

(1) Commits perjury as defined in § 39-16-702;

(2) The false statement is made during or in connection with an official proceeding; and (3) The false state ment is m aterial." Id. To sustain a conviction, the State was required to prove each and every element of the offense beyond a reason able do ubt.

Viewing the evide nce in light o f the abov e-stated criteria, we h old that a rational trier of fact could have concluded beyond a reasonable doubt that Appe llant co mm itted ag grava ted pe rjury. W e furthe r hold th at the e videnc e is sufficient to warrant the trial court's denial of Appellant's motion for judgment of acq uittal.

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The p rosecu tion called O fficer Sm ith as its only w itness. O fficer Sm ith testified that on December 2, 1987, he took Appellant's statement in which Appellant alleged that Michael Scott had burglarized an automobile and had taken a suitcase, a purse, and a pair of shoes while Appellant served as a lookou t. Additiona lly, Officer Sm ith testified tha t Appella nt did not a ppear to be under the influence of either drugs or alcohol at the time Appellant gave the statement. Officer Smith also stated that he knew Appellant quite well and that he ha d never k nown A ppellant to use dru gs or alco hol.

The jury next heard the Assistant District Attorney General read portion s of the transc ript of A ppella nt's Ja nuary 20, 19 89 gu ilty plea h earing in which App ellant pleaded g uilty to the Novem ber 9, 1987 b urglary and sw ore that the sta temen t given to O fficer Sm ith was true and co rrect.

The jury next heard portions of the testimony given by Appellant in the Scott trial. In his testimony, Appellant contradicted his earlier statement and testified that he alone had b urglar ized th e vehic le. App ellant th en ch ange d his testimon y, stating tha t he could not rem embe r whethe r or not Mic hael Sc ott participate d in the co mm ission of the offense. A dditionally, A ppellant s tated, "I honestly do not remember 1987." Appellant also claimed that he could not remember giving a statement to Officer Smith. After identifying the handwriting on the statement as his, Appellant then contended that the hand writing d id not re sem ble his hand writing a t the tim e of the Scott tr ial in 1994 b ut that it "could have be en [his ha ndwriting ] seven ye ars ago ." Appellant next asserted that the signature on the "Advice, Waiver of Rights" form more closely resembled his handwriting than did the signature on the

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statem ent. Finally, on cross-e xamina tion, App ellant attribute d his inab ility to remem ber 198 7 to his alleg ed add iction to dru gs and alcohol.

It was the jury's prerogative to reject Appellant's claim of memory loss and to convic t him o f aggra vated perjury . In light o f the fac t that Ap pellan t's testim ony at th e Sco tt trial was both in ternally incon sisten t and d irectly contra dictory of his ea rlier swo rn testim ony tha t the sta teme nt given by him was accurate, the trial court properly denied Appellant's motion for judgment of acquittal. Moreover, the verdict was amply supported by the evidence.

Finding no merit in either of the two issues presented by Appellant on this direct ap peal, we , therefore , affirm the ju dgme nt of the trial co urt.

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JERRY L. SMITH, JUDGE

CONCUR:

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JOE G. RILEY, JUDGE

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CHRIS CRAFT, SPECIAL JUDGE