IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 April 9, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704-CR-00137 )
Appellee, )
)
) CUMBERLAND COUN TY VS. )
) HON. LEON C. BURNS, JR.
JACK THOMAS NORRIS, ) JUDGE & ERNEST RAY MEADOWS )
Appe llant. ) (Direct Appe al - Attempted First ) Degree M urder)
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY M. WARNER JOHN KNOX WALKUP Attorn ey for Ja ck Th oma s Nor ris Attorney General and Reporter P. O. Box 601 Crossville, TN 38557 MARVIN E. CLEMENTS, JR.
Assistant Attorney General MARGARET JANE POWERS 425 Fifth Avenu e North Attorney for Ernest Ray Meadows Nashville, TN 37243-0493 79 North Main Street Crossville, TN 38555-4576 BILL GIBSON District Attorney General
ANTHONY J. CRAIGHEAD
Assistant District Attorney 145 South Jefferson Street Cookeville, TN 38501
DAVID PATTERSON
Assistant District Attorney 206 East Second Street
Crossville, TN 38555
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
The appellants, Jack Thomas Norris and Earnest Ray Meadows, were convicted by a Cumberland County jury of attempted first deg ree m urder . Norris received a sente nce o f 24 yea rs for his conviction, and Meadows was sentenced to 22 years. On appeal, Norris and Meadows raise several joint issues for our consideration:
1) whether the evidence presented by th e state wa s sufficient to suppo rt the jury’s verd ict;
2) whethe r the trial court erred in denying a motion for a continuance;
3) whether the prosecution improperly used the “missing witness”
argument in its closing; and
4) wheth er the tr ial cou rt erred in refus ing to g rant a n ew trial after a juror attem pted to im peach its own verd ict.
Additionally, Mead ows c laims that the trial cou rt erred by den ying his motion in limine regarding expert testimony. After a thorough review of the record be fore this Court, we affirm the judgment of the trial court as to both Appellants.
FACTS
Appellant Norris owned and operated a salvage yard located at the entrance to the subd ivision w here J ame s Yate s, the vic tim, lived . Norris lived in a mobile home adjacent to the salvage yard. Mr. Yates did not like the appearance of the junkyard an d made inquiries to state officials as to whether Norris was violating any governmental regulations.
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On April 18, 1995, Mr. Ya tes an d his wife dro ve pas t Norris ’ hom e on th eir way to dinner. As their car passed, Danny Wiggins, an employee of Norris, made an offensive hand gesture towa rd the couple. M r. Yates stoppe d the car and attempted to speak with Wiggins. Wiggins returned to the trailer, but Norris came outside. Norris and Yates quickly got into an argument, and during the course of the arg umen t, Norris told Yates that he had “messed with the wrong . . . M F .” Norris also threatened to blow Yates’ head off. As Norris came off the porch towa rd the Yates’ car, Ya tes drove awa y.
Instead of going to the restaurant, the Yates attempted to find Sheriff Leon Tollett. When they located him at his residence, Yates told the Sheriff about the animo sity between Norris and him and that he was frightened. The couple then returned home .
Mrs. Yates left to pic k up d inner fro m a lo cal res tauran t. W hile he was waiting for his wife to return, Mr. Yates heard a loud car drive past, racing its engine. He noticed tha t the car was an older model brown Toyota. The car frightened him, so Yates retrieved his unloaded .12 gauge shotgun and placed it by the front d oor.
After Mrs. Yates returned, Mr. Yates heard the same car stop in front of h is home. Yates turned on his porch light, picked up the sh otgun, a nd step ped on to the front porch . He observed Norris standing on the passenger side of the brown Toyota he had seen earlier. He could not see and did not identify the driver of the vehicle. Yates saw a flash of light next to Norris’ head and realized that he had been shot. He dropped his gun and went inside the house. Mrs. Yates then drove him to the hospital where he was treated for shotgun wounds to his face, neck, an d torso.
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Shor tly after the shooting, an investigator for the Cumberland County Sher iff’s Depa rtment observed a car matching the description given by Yates. He and a fellow officer stopped the car, which was driven by Appellant Meadows. The license plate on the car was registered to a Plymouth in Meadows’ name. After obtaining Meadows’ consent to search the car, the officers discovered a yellow .20 gauge shotgun shell in the back floorboard. The officers had the vehicle towed to the ju stice center and later recovered another .20 gauge shot shell from a coat which was found in the car. The shells were manufactured by Winchester and contained number 6 bird shot pellets.
Special Agent Donald Carman with the Tennessee Bureau of Investigation (TBI) analyzed the shot wad and shotgun pellets found at the scene of the crime. Carman concluded that the wadding was consistent with a .20 gauge filler shot wad manu factured by W incheste r. He furthe r determ ined that th e pellets were consistent with Num ber 6 bird shot. He also compared one of the shells taken from Meadows’ car with the physical evidence recovered from the victim’s home and found that all components of the shell were consiste nt with the wadding and pellets taken from the scene.
Russ ell Davis, another special agent with the TBI, testified that he conducted gunshot residue tests on Meadows’ Toyota. He found chemical compounds consistent with gu nshot residue on the roof, rear driver’s side window , passen ger doo r, and da shboa rd of the ve hicle.
At trial, Danny Wiggins testified for the state and stated that he was present at Nor ris’ resid ence throug hout th e day o n Apr il 18. W iggins testified that after Yates and Norris got into the argument that day, Norris became increa singly angry. Norris stated that he “ought to kill the m f .” Around the time o f the crim e, W iggins saw N orris an d Mea dows leave N orris’ ho me in
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Meadows’ brown older model Toyota. They stated that they were going to “take care of some b usiness.” Wigg ins testified that after Norris an d Meado ws left, he heard the car drive around the subdivision and stop. He then heard a loud bang, which sounded like a shotgun blast. When Norris returned home, he stated that Meadows had left to “get rid” of the gun. Meadows later returned with Johnny and N aomi B oles and told W iggins tha t the Bole s would give him an alibi.
Norma Harris testified that she was dating Meadows in April of 1995. She stated that she and Meadows owned a shotgun together at the time of the shooting. On April 18, Meadows came to her home asking to borrow the gun, and she gave him the gun along with three (3) yellow shot shells. Meadows was driving a brown car that night. Meadows did not return the shotgun, and when Harris asked him to retu rn it, Meadows told her to “forget the gun” and “forget [she] ever saw it.”
Each Appellant testified in his own behalf at trial. Both denied shooting the victim and being with anyone who shot the victim. Norris insisted that he was at home during the shooting, and Meadows claimed that he was at Naomi and Johnny Boles’ residence at the time of the incident. Meadows further attempted to explain the presence of gunshot residue on his vehicle. He testified that Bobby Cumby cam e by the salvag e yard on Ap ril 18 an d ask ed to s hoot a t old cars in order to set the scope on a rifle. Meadows stated that Cumby placed the gun on the top of M eadow s’ car in ord er to stead y the rifle while s hooting .
Naomi and Johnny Boles testified that Meadows was at the Boles’ home when the call came over the police scann er that a shoo ting ha d occ urred in Norris’ neighb orhood . Austin Le wis, a relative of Norris, testified that he was in Norris’ trailer with No rris on the n ight of the s hooting from ap proxima tely 8:00 until 9:10 p .m.
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In rebuttal, the state called Investigator Bradley Nealon with the Cumberland County Sheriff’s Department. Nealon testified that he spok e with Austin Lewis on the night of the incident, and Lewis stated that he had been at his reside nce all eve ning.
The jury convicte d both Appellants of attempted first degree murder. From their co nviction s, Nor ris and Mead ows b ring this appe al.
SUFFICIENCY OF THE EVIDENCE - NORRIS AND MEADOWS
Both A ppellants argue that the evidence presented by the State at trial is insufficient to sustain the jury verdict of attem pted murd er in the first degree. They claim that du e to var ious in cons istenc ies in th e evide nce, n o ration al trier of fact cou ld have fo und the m guilty be yond a re asona ble dou bt.
A.
When an appellant challenges the sufficie ncy of th e evide nce, th is Court is obliged to review that challenge according to certain well-settled principles. Wh ere the sufficiency of the evidence is contested on appeal, the relevant question for the review ing court is whether an y rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Tenn . R. App . P. 13(e); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitim ate view of the evidence as well as all rea sonab le and leg itimate inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evide nce. 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 ).
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Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d at 779.
A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all c onflicts in the te stimo ny in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn . 1994); State v. Harris , 839 S.W.2 d at 75. Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficienc y of the con victing evide nce. Id.
B.
Both Appellants were convicted of attempted first deg ree m urder , which is described as acting with intent to “engage[] in action” or to “complete a course of action” which would constitute the offense of first degree murder. Tenn. Code Ann. § 39-12 -101( a)(1), (3 ) (1991 ). First de gree m urder is the “in tention al, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13- 202(a)(1) (199 1).
C.
Yates testified that he observed Norris standing by an older model brown Toyota, saw a flash next to Norris’ head and then rea lized that h e had b een sh ot. Yates positively identified Norris as the shoote r. The testim ony of a victim identifying the defendant as the perpetrator of the crim e is sufficient, in and of itself, to support a conviction. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993 ).
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Furthermore, several witnesses, including Norris himself, testified that Norris threatened to blow Yates’ head off within hours of the shooting. Wiggins testified that Norris and Meadows left Norris’ home in Meadows’ car shortly before the crime , both claim ing that the y were go ing to “take care of some busine ss.” Althou gh Ya tes co uld no t positive ly identify Meadows as the driver of the car, he was able to identify Meadows’ vehicle. Harris testified that Meadows borrowed her sh otgun and s ome amm unition on the evening of April 18. Law enforcement authorities recovered a mmu nition from Me adows’ vehicle which was consistent with the physical evidence found at the crime scen e. Moreover, gunshot residue was discovered on Meadows’ vehicle.
The evidence against the Appellants was overwhelming. Although bo th Appe llants presented evidence of an alibi at the time of the shooting, the jury, as trier of fact, was free to disre gard tha t testimon y. Additio nally, any c onflicts in proof were resolved by the jury. The weight and credibility of witnesses’ testimony are matters entrusted sole ly to the jury as the triers of fac t. State v. Sheff ield, 676 S.W .2d 542 (Tenn . 1984); Byrge v. S tate, 575 S.W.2d 292 (Tenn. Crim. App . 1978).
D.
Meadows also claims that there was insufficient evidence to establish that Appe llants intended to kill the victim, due to the lack of evidence that Yates could have died from a sin gle shot of bird sho t. To the contrary, Dr. Rob erto Baylosis, an eme rgency room physician at Cu mberland Medical Ce nter, testified that the gunshot wounds inflicted upon the victim could have ca used h im to blee d to death had th e pelle ts pun ctured his arterial vess els. In an y even t, there is substantial evidenc e of the Appe llants’ int ent to k ill, in light of N orris’ m ultiple threats to kill Yates within hours of the shooting.
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E.
This Court concludes that a rational trier of fact could have determined that Appe llants intended to “engage[] in action” or to “complete a course of action” which w ould con stitute the offe nse o f first deg ree m urder . This is sue is without merit.
MOTION FOR CONTINUANCE - NORRIS AND MEADOWS
In the second allegation of error, Appellants claim that the trial court erred in denying their respective motions for a continuance in order to secure Bobby Cum by’s presence at trial. They contend that Cumb y’s testimony wo uld have corroborated Meadows’ testimony by explaining the presence of gunshot residue on Mead ows’ car.
On the first day of trial, Appellants filed a motion for continuance, on the basis that Bobby Cumby could not be located. Meadows wished to call Cumby as a witne ss to te stify that, o n the d ay of the incide nt, Cu mby h ad pro pped a rifle on the hood of Meadows’ vehicle while sho oting at old cars in the junkyard. According to Meadows, this testimony would explain the presence of gunshot residue on his vehicle. The Sheriff’s Department had attempted to serve a subpoena on Cumby to secure his presence at trial, but was unsuccessful because Cum by was on vac ation in Florida . Appa rently, th e trial ha d prev iously been rescheduled from a prior date due to inclement weather. However, the Sher iff’s Depa rtment w as una ble to loca te Cumby for service of the prior subp oena as we ll.
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Initially, we note that Norris failed to include this issue in his motion for new trial. 1 There fore, as to h im, the iss ue is waive d. Tenn . R. App . P. 3(e); State v. Maddox, 957 S.W .2d 547, 553 (Tenn. Crim . App. 1997 ).
Nevertheless, beca use th e issue was p roper ly raised by Mead ows, w e will address it on its merits. The pr ocedu re for requ esting a c ontinua nce in ord er to secure the presence of a witness is well-settled:
When requesting a continuance to accommodate a missing witness, the gro unds mus t be se t out in a n affida vit which alleges (a)
the substance of the facts the defendant expects to prove through the unavailable witness; (b) sufficient facts to establish the relevance and materiality of the testimony; (c) the admissibility of the testim ony, if the witness was available; (d) the non-cum ulative nature of the testimony; (e) the witness’ availability at a later date;
and (f) due diligence in attempting to obtain the presence of the witness. State v. Dykes, 803 S.W.2d 250, 256-57 (Tenn. Crim. App.
1990); Tenn. Code Ann. § 19-1-1 10(a). Fa ilure to file the m otion in proper form may be a groun d for den ial. State v. Dykes, 803 S.W.2d at 257.
State v. Zirkle, 910 S.W .2d 874, 884 (Tenn. Crim . App. 1995 ).
A motion for a continuance is addressed to the sound discretion of the trial judge and his ruling on the m otion will not be disturbed in the absence of an abuse of discretion to the preju dice of the defend ant. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). An abuse of discretion is demonstrated by showing that the failure to grant a continuance denied defendant a fair trial or that it could be reaso nably concluded that a different result would have followed had the continua nce be en gran ted. Id. at 579.
Under the record before this Court, there is no indication that Cumby would be available at a later date. The Sheriff’s Department attempted on two occasions to serve Cum by with a su bpoen a to appea r in court. T hose a ttempts
1 In his motion for new trial, Norris alleges “[o]ther grounds which will be supplied by the Defendant.” Such an allegation is insufficient to preserve the issue on appeal. “[N]o issue presented for review shall be predicated upon error . . . unless the same was spe cifica lly stated in a motion for new trial.” Tenn. R. App. P. 3(e) (emphasis added ). No written amendm ent to the motion is in the record before this Court, nor did Norris attempt to orally amend the motion.
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were unsu cces sful du e to the inability to locate Cum by. Alth ough Appe llants attribute this to Cumby’s being on vacation in Florida during the second attempt at service , no exp lanatio n is offered as to why Cumby could not be located on the first attempt. Because Appellants have not established that Cumb y would have been availab le at a later date, we conclude there was no abus e of dis cretion in denying a continu ance. See State v. Zirkle , 910 S.W.2d at 884.
This issu e has n o merit.
EXPERT TESTIMONY - MEADOWS
Meadows additionally insists that the trial court erred in allowing TBI Special Agen t Russ ell Davis to testify. Davis’ testimony concerned the presence of gunshot residue on the top of Meadows’ car. Meadows claims that Davis’ testimony was prejudicial. Further, he argues that this testimony, coupled with the denial of a continuance, had the effect of compelling Meadows to testify at trial.
Because Meadows failed to include this issue in his m otion fo r new tr ial, the issue is waived.2 Tenn. R. App. P. 3(e ); State v. Spadafina, 952 S.W.2d 444, 451 (Tenn. Crim. App. 1996). In any event, the evidence of gunshot residue on Meadows’ car was certainly relevant at trial. Tenn. R. Evid. 401. Furthermore, Meadows has cited no grounds for excluding the evidence, other than that it had a prejudicia l effect. Mead ows’ rig ht to refr ain from testifying does not include the right to be free of any prejudicial testimony against him.
This issu e is withou t merit.
2 Meadows’ motion for new trial also contains an allegation of “[o]ther grounds which will be supplied by the Def endan t.”
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MISSING WITNESS ARGUMENT - NORRIS AND MEADOWS
Norris and Me adows further ass ert that the prosecution made improper use of the “missing witness” a rgume nt during its closing argument. They argue that the state was precluded from mentioning Bobby Cumby in its closing, because Cumby could no t be locate d to testify at trial. Th ey con tend th at the p rosec ution’s argument overly e mph asize d the a bsen ce of C umb y’s testimony and, therefore, caused the jury to discredit Mead ows’ testimon y.
In its closing argument, the prosecution made the following remarks:
Now, Mr. Meadows came here today and told you that by some sheer coincidence, on the same day this happened, his good friend Mr. Cumby , his real good friend Mr. Cum by, was out there taking target p ractice. And not only was he taking target practice, but by sheer coincidenc e, he w as us ing his Toyo ta to sig ht this barrel over. What are the odds? Then they take -- and that’s all you have to go by, by the way, ladies and gentlemen, is Mr. Meadows’
word. . . . What are the odds?
“[A] party is entitled to argue, and have the jury instructed, that if the other party has it pe culiarly w ithin his power to produce a witness whose testimony would naturally be favorable to him, the failure to call that witness creates an adverse inference that the testimon y would not favor h is contentions.” State v. Middlebrooks, 840 S.W.2d 317, 33 4 (Ten n. 1992 ) (citations o mitted). Howeve r, in order to invoke the “missing witness” rule, the evidence must show that “the witness had knowledge of material facts, that a relationship exists between the witness and the party that w ould na turally incline th e witness to favor the party and that the missing witness was available to the process of the Co urt for trial.” Delk v. S tate, 590 S.W .2d 435, 440 (Tenn. 197 9).
In reviewing a claim of prosecutorial misconduct during closing a rgume nt, we are guided by such factors as:
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1. The conduct complained of viewed in conte xt and in light of the facts and circumstances of the case.
2. The curative m easure s unde rtaken b y the cou rt and the prosec ution.
3. The intent of the prosec ution in m aking the improp er statem ent.
4. The cumulative effect of the improper conduct and any oth er erro rs in the reco rd.
5. The relative strength or weakness of the case.
Judge v. State, 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ).
W e mus t initially no te that n either Appella nt obje cted to the alle gedly improper argume nt. Therefore, bo th have waived th is issue. State v. Green, 947 S.W.2d 186, 18 8 (Ten n. Crim. A pp. 199 7); State v. Seay, 945 S.W.2d 755, 762 (Tenn. Crim. A pp. 199 6); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992); Tenn. R. App. P. 36(a). Additionally, this issue was not included in Norris’ motion for new trial and is waived, as to him, for this reason as well. Tenn. R. App. P . 3(e); State v. Maddox, 957 S.W.2d at 553.
Regardless, from a reading of the state’s entire closing argum ent, it does not appear that the prosecution was asking the jury to draw an adverse inference from Cum by’s abse nce. The prosecution was merely exploring the credibility of Meadows’ explanation for the presence of gunshot residue on his vehicle . In light of the overwhelming evidence of guilt, we do not be lieve that an y referenc e to Cumby during clos ing argu ment a ffected the verdict. See Judge v. State, 539 S.W.2d at 346.
This issu e has n o merit.
JUROR TESTIMONY AS BASIS FOR NEW TRIAL - NORRIS AND MEADOWS
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In their final issue, Appellants argue that the trial court erred in denying their respective motions for a new trial on the basis of a juror’s testimony that she was un comfo rtable with th e verdict.
At the beginning of the sentencing hearing, defense counsel called Kathy Jan Burns to testify concerning her dissa tisfaction with the jury’s verdict. She stated that she w as a m emb er of the jury wh ich fou nd No rris and Me adows guilty of attempted first degree murder. She testified that she felt that the verdict was “rushed ,” and the jury did not fu lly deliberate on the evidence presented at trial. She further stated that sh e “had seriou s dou bts within five minutes” after the verdict.
At the hearing on the motion for new trial, the defense presente d an affidav it signed by James Morgan indicating that he heard W ayne Fin dley, a juror, state that three jurors were going to “hang Jack’s a ss.” How ever, the s tate called Findley to te stify at the hearing, and Findley denied making such a statem ent.
Norris failed to includ e this iss ue in h is mo tion for n ew trial. Therefore, as to him, the issue is waived. Tenn. R. App. P. 3(e); State v. Maddox, 957 S.W.2d at 553. Nevertheless, we will address the issue with regard to Meadows.
Tenn. R. Evid. 606(b) provides:
Upon an inquiry into the validity of a verdict or indictme nt, a juror may no t testify as to any matter or statement occurring during the cours e of the jury’s deliberations or to the effect of anything upon any juror’s mind or emotion as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juro r’s mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention, whether any outside influence was impro perly brought to bear upon any juro r, or wh ether th e jurors agree d in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
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A juror may testify or submit an affidavit in connection with a motio n for ne w trial, in the limited circums tances of:
(1) “extraneo us prejud icial informa tion” finding its way into the jury room,
(2) improper outside pressure on a juror, or (3) a quo tient or gam bling verd ict.
Tenn. R. Evid. 606(b), Advisory Commission Comm ents.
Juror Burns’ testimony concerning her personal dissatisfaction with the jury’s verdict was inadmissible e vidence in sup port of the Appellants’ motion for new trial. Clearly, her testimony did not indicate that she was subjected to improper outside press ure or that “extran eous p rejudicial info rmation ” came into the jury room. Nor did she testify that the jury’s verdict was a quotient or gamb ling verdict.
This same is true for the information contained in Morgan’s affidavit.
Although Findley testified that he ne ver made the stateme nt that three jurors were going to “hang Jack’s ass,” such a state men t would not be adm issible evidence un der Tenn . R. Evid. 606(b).
Because the trial court was presented with no competent evidence concerning the validity of the jury’s verdict, there was no error in failing to grant a new tria l on this ba sis. This iss ue is witho ut merit.
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CONCLUSION
After a thorough review of the record before this Court, we find no reversible error. Accordingly, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
CONCUR:
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THOMAS T. WOODALL, JUDGE
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WILLIAM B. ACREE, JUDGE