IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MAY SESSION, 1997 September 10, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9606-CC-00189 ) Appellee, ) ) CARROLL COUNTY ) V. ) ) HON. C. CREED M cGINLEY, JAMES LEONARD CORDER ) JUDGE ) Appellant. ) (AGGRAVATED ASSAULT)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
BILLY R. ROE, JR. SARAH M. BRANCH Assistant Public Defender Assistant Attorney General 117 North Forrest Avenue 425 Fifth Avenue North P.O. Box 633 2nd Floor, Cordell Hull Building Camden, TN 38320 Nashville, TN 37243
G. ROBERT RADFORD District Attorney General
ELEANOR CAHILL Assistant District Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defendant, James Leonard Corder, was charged in an indictment
returned by the Carroll County grand jury with two counts of aggravated assault
against Bobbie Jo Douglas (one by use of a deadly weapon and the other by
causing serious bodily injury), one count of aggravated assault upon Martha Jo
Hindman, and one count of aggravated kidnapping of Bobbie Jo Douglas. All
acts were alleged to have been committed on the same date. The jury found
Defendant guilty of aggravated assault upon Martha Jo Hindman, guilty of
aggravated assault upon Bobbie Jo Douglas by causing her serious bodily injury,
and guilty of the lesser included offense of assault on the other charge of
aggravated assault. The Defendant was acquitted of the charge of aggravated
kidnapping. The trial court subsequently merged the misdemeanor assault
conviction with the conviction of aggravated assault upon Bobbie Jo Douglas and
sentenced Defendant to serve six (6) years imprisonment on both convictions of
aggravated assault, to be served concurrently.
In this appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure, Defendant presents two issues: (1) The trial court erred by
overruling his objection to the admission into evidence of photographs of the
victim and (2) the trial court erred by denying his motion to suppress evidence
seized from his van during a warrantless search. We affirm the judgment of the
trial court.
-2- On January 26, 1995, Martha Jo Hindman, an elderly lady who was
normally confined to a wheelchair, and Bobbie Jo Douglas, who was the
Defendant’s girlfriend, were sitting in Ms. Hindman’s home when the Defendant
entered and began beating Ms. Douglas. Ms. Hindman tried to intervene, but
Defendant threatened her with a knife, placing the knife in her face and telling her
to “shut up.” This scared Ms. Hindman and, in her words, she “backed off.” Ms.
Hindman went to another room to a telephone to call for help. The Defendant
saw her, jerked the phone out of her hand and threw it on the floor. Defendant
then folded her wheelchair up and threw it on the floor, grabbed Ms. Hindman
and slung her over the wheelchair, and she was unable to get up.
Ms. Hindm an testified that after the Defendant came in the house, he
stated to Ms. Douglas, “What did you lie to me for?” He then grabbed Ms.
Douglas by the hair of her head and hit her several times in the face with his fist.
Ms. Douglas began to gather her belongings and the Defendant knocked her
down again. Ms. Douglas began bleeding and blood was on the floor, a footstool
and a blanket. In addition, the Defendant was kicking Ms. Douglas while she was
on the floor. As the Defendant was taking Ms. Douglas away from the home, he
told Ms. Hindman that if she told anyone what had happened, he would come
back and do to her what he had done to Ms. Douglas. After a considerable
period of time, Ms. Hindman finally called 911 and asked for a police officer to
come and help her get up. Being fearful of the Defendant and his threats, Ms.
Hindman told the officer that she had accidentally fallen out of the chair.
Subsequently, being concerned of Ms. Douglas’ well-being due to the extent of
her injuries, she called the police the next day and reported the incident.
-3- The proof showed that the Defendant resided in Benton County. Officers
of the Benton County Sheriff’s Department went to the Defendant’s residence
and found both the Defendant and Ms. Douglas. Pictures were taken of Ms.
Douglas as she was found at the Defendant’s residence and as she appeared at
the hospital in Camden on January 27, 1995.
To say that Ms. Douglas was a reluctant witness at the trial is to understate
the situation. She testified on direct exam ination when called by the State that
she could not remember the events which had occurred at Ms. Hindman’s home,
even though the record reflects that she apparently had a good memory of the
events during the preliminary hearing in General Sessions Court on February 9,
1995. During cross-examination, Ms. Douglas testified that she had spoken with
the Defendant over the phone and he said that if he ever got out of this he would
“never do it no more.” He apologized to her and she stated that she had written
to him and made phone calls to him since the incident had occurred. In
summary, Ms. Douglas testified that “[Defendant] don’t need to be -- he’s spent
enough time in jail for what he has done . . . I think he has been punished enough
for what he has done.”
Officers of the Benton County Sheriff’s Department searched the
Defendant’s van on the date of his arrest on January 27, 1995. Evidence of
items recovered from the van which incriminated the Defendant were introduced
at trial. In addition, the Defendant made a statement to the Sheriff of Benton
County that he [Defendant] wished he had just gone ahead and cut off the
victim’s head.
-4- Prior to the trial, the Defendant filed a motion to suppress all evidence
seized during the warrantless search of his van by the Benton County Sheriff’s
Department. Following a hearing, the court denied the motion. The record on
appeal does not contain the transcript of the proceedings of the motion to
suppress evidence.
It is the duty of the Defendant to prepare a record which includes the
proceedings relevant to an issue on appeal; otherwise, the doctrine of waiver
applies. T.R.A.P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.
1987). W hen the record is incomplete, or does not contain the proceedings
relevant to an issue, this court must presume the trial court ruled correctly. State
v. Hoosier, 631 S.W .2d 474, 476 (Tenn. Crim. App. 1982); Herron v. State, 3
Tenn. Crim. App. 39, 456 S.W .2d 873, 876 (1970). Based upon the status of the
record on appeal, this court must presume that the trial court ruled correctly on
the motion to suppress evidence seized from the Defendant’s van. This issue is
without merit.
The Defendant also filed, pre-trial, a motion in limine, requesting the trial
court to enter an order prohibiting the State from introducing into evidence the
photographs of the victim, Bobbie Jo Douglas. Defendant alleged in this motion,
and argues on appeal, that the prejudicial effect of the photographs far outweighs
the probative value.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MAY SESSION, 1997 September 10, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9606-CC-00189 ) Appellee, ) ) CARROLL COUNTY ) V. ) ) HON. C. CREED M cGINLEY, JAMES LEONARD CORDER ) JUDGE ) Appellant. ) (AGGRAVATED ASSAULT)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
BILLY R. ROE, JR. SARAH M. BRANCH Assistant Public Defender Assistant Attorney General 117 North Forrest Avenue 425 Fifth Avenue North P.O. Box 633 2nd Floor, Cordell Hull Building Camden, TN 38320 Nashville, TN 37243
G. ROBERT RADFORD District Attorney General
ELEANOR CAHILL Assistant District Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defendant, James Leonard Corder, was charged in an indictment
returned by the Carroll County grand jury with two counts of aggravated assault
against Bobbie Jo Douglas (one by use of a deadly weapon and the other by
causing serious bodily injury), one count of aggravated assault upon Martha Jo
Hindman, and one count of aggravated kidnapping of Bobbie Jo Douglas. All
acts were alleged to have been committed on the same date. The jury found
Defendant guilty of aggravated assault upon Martha Jo Hindman, guilty of
aggravated assault upon Bobbie Jo Douglas by causing her serious bodily injury,
and guilty of the lesser included offense of assault on the other charge of
aggravated assault. The Defendant was acquitted of the charge of aggravated
kidnapping. The trial court subsequently merged the misdemeanor assault
conviction with the conviction of aggravated assault upon Bobbie Jo Douglas and
sentenced Defendant to serve six (6) years imprisonment on both convictions of
aggravated assault, to be served concurrently.
In this appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure, Defendant presents two issues: (1) The trial court erred by
overruling his objection to the admission into evidence of photographs of the
victim and (2) the trial court erred by denying his motion to suppress evidence
seized from his van during a warrantless search. We affirm the judgment of the
trial court.
-2- On January 26, 1995, Martha Jo Hindman, an elderly lady who was
normally confined to a wheelchair, and Bobbie Jo Douglas, who was the
Defendant’s girlfriend, were sitting in Ms. Hindman’s home when the Defendant
entered and began beating Ms. Douglas. Ms. Hindman tried to intervene, but
Defendant threatened her with a knife, placing the knife in her face and telling her
to “shut up.” This scared Ms. Hindman and, in her words, she “backed off.” Ms.
Hindman went to another room to a telephone to call for help. The Defendant
saw her, jerked the phone out of her hand and threw it on the floor. Defendant
then folded her wheelchair up and threw it on the floor, grabbed Ms. Hindman
and slung her over the wheelchair, and she was unable to get up.
Ms. Hindm an testified that after the Defendant came in the house, he
stated to Ms. Douglas, “What did you lie to me for?” He then grabbed Ms.
Douglas by the hair of her head and hit her several times in the face with his fist.
Ms. Douglas began to gather her belongings and the Defendant knocked her
down again. Ms. Douglas began bleeding and blood was on the floor, a footstool
and a blanket. In addition, the Defendant was kicking Ms. Douglas while she was
on the floor. As the Defendant was taking Ms. Douglas away from the home, he
told Ms. Hindman that if she told anyone what had happened, he would come
back and do to her what he had done to Ms. Douglas. After a considerable
period of time, Ms. Hindman finally called 911 and asked for a police officer to
come and help her get up. Being fearful of the Defendant and his threats, Ms.
Hindman told the officer that she had accidentally fallen out of the chair.
Subsequently, being concerned of Ms. Douglas’ well-being due to the extent of
her injuries, she called the police the next day and reported the incident.
-3- The proof showed that the Defendant resided in Benton County. Officers
of the Benton County Sheriff’s Department went to the Defendant’s residence
and found both the Defendant and Ms. Douglas. Pictures were taken of Ms.
Douglas as she was found at the Defendant’s residence and as she appeared at
the hospital in Camden on January 27, 1995.
To say that Ms. Douglas was a reluctant witness at the trial is to understate
the situation. She testified on direct exam ination when called by the State that
she could not remember the events which had occurred at Ms. Hindman’s home,
even though the record reflects that she apparently had a good memory of the
events during the preliminary hearing in General Sessions Court on February 9,
1995. During cross-examination, Ms. Douglas testified that she had spoken with
the Defendant over the phone and he said that if he ever got out of this he would
“never do it no more.” He apologized to her and she stated that she had written
to him and made phone calls to him since the incident had occurred. In
summary, Ms. Douglas testified that “[Defendant] don’t need to be -- he’s spent
enough time in jail for what he has done . . . I think he has been punished enough
for what he has done.”
Officers of the Benton County Sheriff’s Department searched the
Defendant’s van on the date of his arrest on January 27, 1995. Evidence of
items recovered from the van which incriminated the Defendant were introduced
at trial. In addition, the Defendant made a statement to the Sheriff of Benton
County that he [Defendant] wished he had just gone ahead and cut off the
victim’s head.
-4- Prior to the trial, the Defendant filed a motion to suppress all evidence
seized during the warrantless search of his van by the Benton County Sheriff’s
Department. Following a hearing, the court denied the motion. The record on
appeal does not contain the transcript of the proceedings of the motion to
suppress evidence.
It is the duty of the Defendant to prepare a record which includes the
proceedings relevant to an issue on appeal; otherwise, the doctrine of waiver
applies. T.R.A.P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.
1987). W hen the record is incomplete, or does not contain the proceedings
relevant to an issue, this court must presume the trial court ruled correctly. State
v. Hoosier, 631 S.W .2d 474, 476 (Tenn. Crim. App. 1982); Herron v. State, 3
Tenn. Crim. App. 39, 456 S.W .2d 873, 876 (1970). Based upon the status of the
record on appeal, this court must presume that the trial court ruled correctly on
the motion to suppress evidence seized from the Defendant’s van. This issue is
without merit.
The Defendant also filed, pre-trial, a motion in limine, requesting the trial
court to enter an order prohibiting the State from introducing into evidence the
photographs of the victim, Bobbie Jo Douglas. Defendant alleged in this motion,
and argues on appeal, that the prejudicial effect of the photographs far outweighs
the probative value. He asserts that the extent of the victim’s injuries could be
adequately proven through the testimony of the treating physician.
As in the case of the motion to suppress evidence, the record does not
contain the transcripts of any proof presented to the trial court concerning the
-5- motion in limine. A pre-trial hearing was apparently held and an order was
entered denying the motion in limine.
Even if this issue is not waived by failure of the Defendant to include in the
record proceedings in the trial court related to the motion in limine, we are able
to rule that the probative value of the photographs is not outweighed by any
prejudicial effect. From the record it is apparent that the photographs accurately
and clearly display the injuries to the victim which support proof of serious bodily
injury. The victim’s treating physician testified during cross-examination by
Defendant’s counsel, that the photographs did not look worse than the victim’s
actual injuries and in fact, the photographs “looked exactly” like the injuries.
The physician further testified that the victim had massive swelling of her
face with bruising, especially around her eyes, to the extent that she was unable
to open her eyes. In addition, the victim had multiple bruises on her rib cage and
swelling of both hands. He related that the victim did not have massive bleeding
and had no broken bones. He further testified that the victim’s eyes were so
swollen that she would have been unable to get up and move around on her own.
The photographs which were objected to by the Defendant show the victim’s face
with the eyes swollen shut, bruising on the face, and the swollen left hand. The
photographs are not particularly gruesome.
Especially in light of the victim’s inability to remember events of the
aggravated assault, we conclude that the probative value of the photographs far
outweighs any prejudicial effect. See State v. Banks, 564 S.W .2d 947, 951
-6- (Tenn. 1978). The trial court did not err in overruling the Defendant’s objection
to the introduction of the photographs of the victim.
Finding no error, we affirm the judgment of the trial court.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ GARY R. WADE, Judge
___________________________________ JOHN H. PEAY, Judge
-7-