IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1996 FILED March 12, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9312-CC-00276 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON DARRELL LEE EMERSON, ) JUDGE ) Appe llant. ) (Direct Ap peal)
FOR THE APPELLANT: FOR THE APPELLEE:
MIKE MOSIER JOHN KNOX WALKUP 204 W est Baltimore Attorney General and Reporter P. O. Box 1623 Jackson, TN 38302-1623 WILLIAM DAVID BRIDGERS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
JERRY W OODALL District Attorney General
NICK NICOLA Assistant District Attorney P. O. Box 2825 Jackson, Tn 38302
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE OPINION
On May 19, 1995, a Madison County Circuit Court jury found Appellant
Darre ll Lee Emerson guilty of attempted second-degree murder, aggravated
assau lt, two co unts o f reckle ss en dang erme nt, pos sess ion of m arijuana with
intent to sell, possession of marijuana with intent to deliver, possession of drug
paraphernalia, and poss essio n of a d eadly w eapo n with in tent to e mplo y it during
the commission of a felony. T he trial judg e merg ed the p ossess ion with inte nt to
deliver conviction with the conviction for possession with intent to sell. As a
Range I standard offender, Appellant was sentenced to twelve years for
attempted second-d egree m urder, six years for aggravated assault, two years for
each count of reckless en dange rment, tw o years fo r posse ssion of m arijuana w ith
intent to sell, eleven months and twenty-nine days for possession of drug
parap herna lia, and two years for p ossess ion of a de adly wea pon with intent to
employ it during the comm ission of a fe lony. All sentences were ordered to run
concurrently. On appeal, Appellant raises the following issues:
1) Whether the evidence is sufficient, as a matter of law to s uppo rt his convictions for attempted second-degree murder, aggravated assau lt, and two counts o f reckless endan germe nt, 2) Whether the trial court abused its discretion in permitting police officers to testify that they alw ays complied with the “knock and announce” rule and permitting the police officers to demonstrate how they allegedly complied with that rule, 3) Wh ether the trial court pro perly overru led App ellant’s motion to suppress, 4) Wh ether the trial court com mitted pr ejudicial erro r in denyin g Appe llant’s request for spe cial jury instructions on self-defense, the “knock and announce” rule, and character evidence, and 5) W hether th e trial court p roperly se ntence d Appe llant.
After a carefu l review of the record, w e reverse all of Appellant’s convictions,
dismiss the conviction for aggravated assault, attempted second degree murder
-2- and merge the two co unts of reckless endangerment into one, and remand for re-
trial on the re mainin g coun ts of the ind ictmen t.
I. Factual Background
Suspecting Appellant of possessing and dealing m arijuana, police officers
obtained a search warrant for Appellant’s home located in Jackson, Tennessee.
After obtain ing the warra nt, office rs from the Ma dison Coun ty She riff’s
Depa rtment, the Jackson Police Department, and the 26th Judicial District Drug
Task Force went to Appellant’s house on December 1, 1993 to execute the
warran t. The o fficers d ivided in to a front door and a rear door team . Mark
Cald well, Danny Mullikin, Alphonzo Newburn, Donald Holland, and James
Truelove were members of the front door team. Thomas Coleman, Matthew
Hardaw ay, and Glenn Penney were members of the back door team. According
to the plan o f entry, the fron t door team would announce their presence and
attempt to gain entry. Once the team s were in place, the front doo r team trie d to
pry open Appe llant’s sc reen d oor bu t were u nsuc cess ful. They th en rippe d it off
and bega n kno cking on the wood en do or at the front of th e hou se. W hile
knocking, they yelled, “Police. Sea rch W arran t.” At this p oint, O fficer C aldwe ll
heard noises inside the house that sounded as if someone was running from the
front of the house to the rear of the house. Afraid that Appellant was attempting
to flush his marijuana down the toilet, Caldwell and Newburn began kicking the
front door down. As they did so, officers continued to yell “Police. Search
W arrant.” After several kicks, the front door gave way and the front door team
entered the house. As Caldw ell entered the house, Appellant shot him, striking
him in the neck. Mullikin and several other officers then struggled with Appellant
to restrain him. S hortly a fter the fr ont do or team bega n kickin g on A ppella nt’s
-3- door, the rear door team began knocking on Appellant’s rear door while yelling,
“Police. Search Wa rrant.” The rear door team then b egan batterin g App ellant’s
rear door with a battering ram. When they entered the house, they heard a
poppin g soun d and s melled gunpo wder.
At trial, the d efens e argu ed tha t on the night of December 1, 1993,
Appellant was at home watching television when he heard someone fiddling with
his screen door. Fearful for his life, he went to h is bedroom to retrieve a gun.
Appellant claimed that he never heard anyone yell “P olice. Sea rch W arrant.”
According to Appellant, as soon as he realized that he had shot a police officer
he threw do wn his w eapon and su rrendere d. Appe llant testified on his own
beha lf claim ing tha t he wa s actin g in self-defense. Ap pellant’s neighbo rs testified
that they never heard anyone shout “Police. Search Warrant.” Several people
testified on behalf of Appellant that he was a truthful person.
At the suppression hearing, the proof submitted by the State showed that
Newburn used a screwdriver to pry open the screen door but was unable to do
so. He then ripped the door open. Caldwell proceeded to knock on the wooden
door, yelling “Police. Search W arran t.” After k nock ing an d ann ounc ing his
presence, Caldwell heard someone inside the house running toward the rear of
the house. In response, Caldwell and Newburn began kicking the door in.
Officer Colem an, part o f the back door tea m hea rd the fron t door team yelling
“police search warrant,” a nd beg an prep aring to bre ach the rear doo r. Once he
heard the front door being breached he yelled “police. Search Warrant,” and then
breached the rear d oor. The trial cou rt found that the police had la wfully entered
Appellant’s home, and therefore admitted the evidence found in the search.
-4- II. Sufficiency of the Evidence
Appellant mainta ins that the evidenc e was ins ufficient as a matter of law
to support his convictions for attempted second-degree murder and aggravated
assa ult of O fficer C aldwe ll and reckless endangerment of Officer Newburn and
Officer Mullik in. Appe llant does not conte nd that the State did not put forth
enough evidenc e to estab lish the elem ents of these crimes. Instead, he argues
that the officers’ stories varied so much among each other and between the night
of the search and the time of trial, they were not believable. When an appeal
challenges the sufficiency of the evidence, the standard of review is whethe r,
after viewing the evidenc e in the light m ost favora ble to the S tate, any rational
trier of fact could have found the essential elements of the crime beyond a
reaso nable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v. Evans,
838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740 (1994); Tenn.
R. App. P . 13(e). On appea l, the State is entitled to the strongest legitimate view
of the evid ence and a ll reaso nable or legitima te inferences which may be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978). This C ourt will
not reweigh the evidence, re-evaluate the evidence, or substitute its evidentiary
inference s for those reache d by the jury . State v. Grace, 493 S.W.2d 474, 476
(Tenn . 1973).
Once approved by the trial court, a jury verdict accredits the witnesses
presented by the State and resolves all conflicts in fa vor of the S tate. State v.
Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842
(Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony,
and the reco nciliation of c onflicts in the proof are matte rs entru sted e xclusive ly
to the jury as trier of fact. State v. She ffield, 676 S.W .2d 542, 547 (Tenn. 198 4).
For these reasons, had the jury been properly instructed, [see discussion infra.]
-5- we find that there was sufficient evidence to find Appellant guilty of attempted
secon d-degre e murd er, aggra vated as sault, and reckless endan germe nt.
Howeve r, Appella nt also claim s that he could not legally be convicted of
both attempted s econd-de gree mu rder and ag gravated assault of Officer
Cald well because the crimes involved the sam e perso n. In State v. Denton, 938
S.W.2d 373 (Ten n. 1996); our Supreme Court extended double jeopardy
protection under the Tennessee Constitution beyond that provided by the federal
constitution.1 That is, while multiple convictions for a single criminal action may
be permitted by the federal constitution under Blockberger v. United States, 284
U.S. 299 (1932), the result may be different under the Tennessee Constitution.
In order to determine whether multiple convictions for a single criminal episode
which violates two distinct statutes is permissible under Tennessee law, we must
now engage in the following four prong inquiry: “(1) a Blockberger analysis of the
statutory offenses; (2) an analysis, g uided b y the princip les of Duch ac [v. State ,
505 S.W.2d 237 (Tenn. 1973)], of the evidence used to prove the offenses; (3)
a consideration of whether there were multiple victims or discrete acts; and (4)
a comparison of the purposes of the respective statu tes.” Denton, 938 S.W.2d
at 381.
This Court in State v. Hall, Madison County, C.C.A. No. 02C01-9607-CC-
00211, Opin ion filed January 28, 1997, at Jackson; has previously held that
because each statutory provision setting forth these offenses requires proof of an
additional fact which the other does n ot, attempted second-degree murder and
aggravated assault are not the same offense for federal double jeopardy
purposes. We also held in Hall that the purposes of the statutes prohibiting
1 The double jeopardy clause of the Tennessee Constitution provides “[t]hat no person shall, for the sam e offens e, be twice put in jeopa rdy of life or lim b.” Ten n. Cons t., Art I, Sec. 10 .
-6- attempted murder and aggravated assault are the same: to prevent physical
attacks upon persons. Id. As in Hall, we find that the eviden ce used to p rove
both the offe nses in this case is the same: the defendant’s firing a loaded gun at
a person entering his home. The convictions were for a discrete act against
Officer Caldwell. Therefore, as in Hall and under the reasoning in Dento n, we
find that Appellant’s convictions for attempted second-degree murder and
aggravated assault must merge. Accordingly, we revers e App ellant’s conviction
for aggra vated as sault.
In addition, Appellant challenges his conviction for two counts of reckless
endangerment beca use th ere wa s only a sing le cou rse of c ondu ct. In fac t, this
Court held in State v. Ramsey, 903 S.W .2d 709 (Tenn . Crim. A pp. 199 5), that a
single course of conduct could only give rise to one conviction for reckless
endangerment despite the fact that more than one person may have been
endangered. Ther efore, th e trial co urt erre d in failin g to m erge tw o cou nts into
one.
III. Demo nstratio n of Co mplian ce w ith “Kn ock an d Anno unce ” Rule
Appellant also conte nds th at the tria l court e rred in permitting the officers
to testify that they always complied with the “kno ck an d ann ounc e” rule a nd in
permitting them to demonstrate how they yelled “Police. Search warrant” in the
courtroom. The trial court permitted the officers to testify that they always
complied with the “knock and announce” rule pursuant to Tennessee Rule of
Evidence 406(a) which provides th at “[e]videnc e of the ha bit of a pers on . . .
whether corroborated or not and regardless of the prese nce o f eye-w itness es, is
relevant to prove that the conduct of the person . . . on a particular occasion was
in conformity with the h abit.” Appellant objects to this testimony on the grounds
-7- of relevancy and prejudice. The evidence was clearly relevant considering that
one of the main issues in the trial was whether the police officers knocked and
announced their pre senc e in the execu tion of th eir warrant. Appellant argues that
the testim ony pr ejudic ed him beca use it led the jury to believe that since officers
had knocke d and a nnoun ced oth er times , it is more likely than not that they
knocked and announced at Appellant’s home. Of course, evidence of habit is
admis sible for this ve ry reason . See Tenn. R . Evid. 406(a). Appellant does not
state why the probative value of this evidence is outweighed by the danger of
unfair prejudice. Because the trial court complied with the dictates of Tennessee
Rule of Evidence 406 and Appellant has failed to demonstrate how the evidence
was unduly prejudicial, the trial court did not err in permitting the officers to testify
about their habit of knocking and announcing before the execution of a search
warran t.
The decision whether to allow a courtroom demonstration rests within the
discretion of the trial judge and will not be disturbed absent a showing of abuse
of that discre tion. State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App.
1984). How loudly the officers announced their presence was clearly relevant
because the issu e of wh ether A ppella nt hea rd the p olice knock and announce
their presence was central to the trial. If the police used a tone o f voice u sed in
everyday, regular conversation there would be a goo d cha nce th at App ellant d id
not hear them at his door. Again, Appellant has failed to show how the
demonstration was undu ly prejudicial. Therefore , it was proper to allow the
officers to testify as to how loudly they announced their presence.
-8- IV. Denial of Appellant’s Motion to Suppress
Appellant argues that the trial court erroneously ruled that evidence
gathered as a resu lt of the Dece mber 1, 1993 search of his home was
admissible. We must a gree with Appella nt for two re asons . First of a ll, we find
that the warrant was improperly executed. Secondly, we find that the search
warrant was not supported by probab le cause . At the outs et, we recognize that
a trial court’s de termina tion at a suppression hearing is presumptively correct on
appeal and may be overcome only if the evidence in the record preponderates
against the trial court’s findings. State v. Stephenson, 878 S.W.2d 530, 544
(Tenn. 19 94).
Before an officer may m ake a forced entry into an occupied residence, the
officer must give “notice of his authority and pu rpose.” Tenn. R . Crim. P. 41(e),
State v. Fletcher, 789 S.W.2d 565, 566 (Tenn. Crim. App. 1990). The knock and
announce rule is not merely a statutory or court rule, it is part of the requirement
under the Fourth Amendment to the United States Constitution that searches be
reasonable. Richa rds v. W iscon sin, ___ U.S . ___, 117 S.Ct. 1416, 142 0 (1997);
Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The
requirement mandates that officers (a) identify themselves as law enforcement
officials and (b) explain the purpose of their presen ce, i.e. the ex ecution o f a
search warrant. W . LaFave , Search and Seizure, § 4.8(c) at 606-07 (3d ed.
1996). If the officer is not admitted to the residence after giving proper notice, the
officer is authorized to “break open any door or window . . . , or any part th ereof,
. . . to the extent that it is reasona bly necessa ry to execute the warrant and does
not unnece ssarily damag e the property.” T enn. R. Crim . P. 41(e).
-9- The purpose of the “knock and announce” rule is threefold:
First, it provides protection from violence, assuring the safety and security of both the occupants and the entering officers. Second, it protects ‘the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. . . . Finally, it protects against the ne edless des truction of private prope rty.
Lee, 836 S.W.2d at 128 (citing U.S. v Moreno, 701 F.2 d 815, 8 17 (9th Cir. 1983)).
Absent exigent circumstances, officers must wait a reasonable period of
time before they may break a nd ente r into the pre mises . State v. Lee, 836
S.W.2d 126, 128 (Tenn. Crim. App. 1991) (citing State v. Carufel, 314 A.2d 144,
146 (R.I. 1974)). In State v. Fletcher, supra., this Court indicated that “sounds
indicative of flight or destruction of evidence -- running, scuffling, or toilet flushing”
could excuse compliance with the knock and announce rule. 789 S.W. 2d at 566.
Howeve r, the United States Supreme Court has recently refined the test of
exigency which will excuse compliance with the knoc k and a nnoun ce rule. In
order to excuse non-compliance with the rule, the police must have a “reaso nable
suspicion that kn ockin g and anno uncin g their p resen ce, un der the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for exam ple, allowin g the de struction o f evidence .”
Richa rds v. W iscon sin, 117 S.Ct. At 1421.
Turning now to the fac ts of this case the Sta te argu es tha t officers fully
complied with the knock and announce rule, and that even if they did not they
were excused from doing so because they heard someone run inside the house.
The evidence put forth at the s uppres sion hea ring and undispu ted by the State
revea ls that the officers quietly attempted to pry open Ap pellant’s screen d oor. 2
2 The State argues that officers tried to open the screen in order to aid the occupants of the residence in hearing the officers knock and identify themselves. One wond ers why if the officers were only interested in making their presence known, they felt it necessary to open the screen “quie tly”.
-10- When this wa s uns ucce ssful, they ripped it open. Only then did they knock and
announce. Clearly, ripping off Appellant’s screen door was a breaking within the
meaning of Tennessee Rule of Criminal Procedure 41(e). While the State
attemp ts to justify the officers’ actions by claiming that they heard running to the
back of the house, they did not hear the running until after they had, without
annou ncem ent, broke n ope n App ellant’s door. W hile it is doubtful that sounds
of running inside an occup ied dwe lling can, sta nding a lone, form the basis of a
“reaso nable suspicion” of attem pted e scap e or de structio n or evid ence , it is clear
that officers ma y not throu gh suc h mea sures a s ripping a screen door off its
hinge create an exigency they later claim justifies an unannounced entry. See,
State v. Lee, 836 S.W. at 129.
Since the officers did not knock and announce before tearing open the
screen door, they did not comply with the “knock and announce” rule. Under the
circumstances nothing excuses failure to comply with the rule. We conclude that
the trial court erre d in deny ing App ellant’s m otion to suppress the evidence
seized pursu ant to th e sea rch wa rrant, a nd the refore order a new tria l on the
conviction for posse ssion of m arijuana w ith intent to sell and possession of drug
paraphernalia.
Moreover, we find that the motion to suppress should have been granted
because the warra nt was d efective. In State v. Jacu min, 778 S.W .2d 430 (198 9),
the Tennessee Supreme Court adopted the two-pronged Aguila r-Spin elli test as
the standard by which probable cause is to be measured to determine if a search
warrant is proper under Article 1, Section 7 of the T ennes see Co nstitution. Id. at
436 (citing Aguilar v. Texas, 84 S.Ct. 1509 (1964) & Spinelli v. United States, 89
S.Ct. 584 (1969 )). Under that test, when a search warrant is based upon
informant information, the basis of the informant’s knowledge and his c redibility
-11- must be established before a magis trate may pro perly issue a warran t. Jacu min,
778 S.W.2d at 432.
The affidavit at issue stated that the police had received information from
“a confidential informant who has been proven reliable in the past through police
observation and supe rvision . . . .” “Said confiden tial informa nt has w orked w ith
investigators in an undercover capacity wherein conta ct has be en ma de with
alleged drug traffickers for the purpose of probable ca use drug p urchases.” A
conclusory statement that the info rmant is reliable is insu fficient. State v. Moon,
841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Likewise, the assertion that the
informant has w orked with po lice officers in the past does not cure the
insufficiency. See State v. Udzinski, No. 01C01-9212-CC-00380, 1993 W L
473308, at *3 (Tenn. Crim. App. Nov. 18, 1993). The State argues that this C ourt
has found that similar information has sufficiently supported search warrants in
the past. The State cites two cases wherein the credibility prong was satisfied
by a state men t in the affidavit that information from an informant had led to either
arrests or con victions . Wh ile inform ant relia bility has been estab lished by
showing that an info rmant’s past per forman ce has led to convictions or arrests,
here we have neither. See id. From the sta teme nts reg arding the info rman t’s
past work with the police one cannot even discern if drug purcha ses were
ultima tely made. All one can determine is that contact was made with alleged
drug traffickers . We find tha t the info rmatio n con tained in the a ffidavit is
insufficient to establish the cred ibility of the inform ant.
Both the failure to properly comply with the “knock and announce rule” and
the insufficiency of the sea rch warrant mandate that the evidence seized be
suppre ssed a nd a ne w trial ordere d.
-12- V. Failure to Instruct the Jury
Appe llant’s fourth issue dea ls with the trial court’s failure to instruct the jury on
(1) the presumption found in Tennessee Code Annotated Section 39-11-611(b)
(1991), which applies when a person uses deadly force against an intruder in his
own home, (2) the “knock and announce” rule, and (3) character evidence. The
presumption found in Tennessee Code Annotated Section 39-11-611(b) provides
that a person using deadly force against an intruder in h is hom e is presu med to have
held a reasonable fear of imminent peril or death or serious bodily injury. The
instruction on character evidence provides both that “a person of good character
may violate the law , but a person of good character is less likely to violate the law
than one of bad character,” and that the defendant’s character “may be considered
for the purp ose of en hancin g (the de fendan t’s) credibility as a witness.” A criminal
defendant has the right to a correct an d com plete cha rge of the law given to the jury
by the trial judge. Stephenson, 878 S.W.2d at 555 (citing State v. Teel, 793 S.W.2d
236, 249 (Tenn. 1990) & State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983)). The
State concedes that these instructions should have been given but that the trial
judge’s fa ilure to give th em wa s harm less. W e disagre e.
Although the trial judge gave a general self-defense charge which provided
that a pers on is justified in using deadly force if he reasonably believes that he was
in imminent danger of death or serious bodily injury, Appellant was entitled to an
instruction concerning the presumption found in Tennessee Code Annotated Section
39-11-611 (b). It was for the jury properly instructed, to decide if the entry by the
police was lawful for the purposes of self-defense. If it was unlawful and Appellant
used dead ly force in his ho me in a reas onab le belief he was in imminent danger of
death or serious bodily injury by an intruder, he was entitled to the benefit of the
presumption.
-13- Appellant was also entitled to an instruction on the “knock and announce” rule.
Of cours e, this is n ot so th at the ju ry could decid e if evide nce o btained from the
search was admissible. Instead, the testimony concerning whether the police
complied with the rule was necessary for the jury to determine if Ap pellant’s theory
of self-defense could be supported. Finally, th e jury he ard ev idenc e of Ap pellan t’s
good character but was not told how to use that evidence. Because the jury was not
given complete a nd correct instructions, Appellant’s convictions for attempted
second-degree murder and reckless endangerment must be reversed and retried.
Because we orde r a new tria l on these counts, w e preterm it determ ination of the
senten cing issu es raised by App ellant.
W e conclude that merger of the attempted second-degree murder conviction
and the agg ravated a ssault co nviction as well as m erger of th e two counts of
reckless endangerment is required. Furthermore , the convictions for possession
with intent to sell and possession of drug paraphernalia must be reversed due to the
improper execution of the search warrant and the lack of probable cause to issue the
search warrant. We order a new trial on these charge s. Beca use co mplete proper
instructions were no t given to the jury, we remand for a new trial on the indictme nts
for attem pted se cond-d egree m urder an d reckles s enda ngerm ent.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOE B. JONES, PRESIDING JUDGE
-14- ___________________________________ DAVID H. WELLES, JUDGE
-15-