IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE July 7, 1999
Cecil Crowson, Jr.
DECEMB ER SESSION, 1998 Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9807-CC-00243 )
Appellee, )
)
) COCKE COUNTY
VS. )
) HON. J. KENNETH PORTER JAMIE DWAYNE REED, ) JUDGE )
Appe llant. ) (Dire ct Ap pea l - Volunt ary ) Manslau ghter)
FOR THE APPELLANT: FOR THE APPELLEE:
CARL R. OGLE, JR. JOHN KNOX WALKUP P. O. Box 129 Attorney General and Reporter Jefferson City, TN 37760 ERIK W. DAAB
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
AL SCHMUTZER, JR.
District Attorney General
W. BROWLOW MARSH
Assistant District Attorney 339 East Main Street
Newport, TN 37821
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
On September 25, 1990, a Co cke Cou nty jury convic ted Ap pellan t Jam ie Dwayn e Reed of voluntary man slaughter. Th at same d ay, the trial court sentenced Appellant as a Range I standard offender to a term of five years in the Tennessee Depa rtment o f Correc tion. Appellant filed a motion for a new trial on October 19, 199 0, and the trial court de nied the motion on October 22, 1990. Appellant filed notice of appeal on October 22, 1990. Apparently, no further activity occurred in this case until September 25, 1997, when the State filed a motion to revoke Appellant’s bond because he had failed to file notice or perfect an appeal in this Co urt 1 . Appellant filed a motion to reinstate his bond on February 18, 1998, and the trial court reinstated bond on April 8, 1998. On appe al, Appe llant ch alleng es bo th his conviction and his sentence, raising the following issues:
1) whether the evidence was sufficient to support his conviction;
2) wheth er the jury w as prejud iced by a c omm ent ma de by a b ailiff;
3) whether the trial court imposed an excessive sentence; and 4) whether the trial court should have imposed probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
1 The delay in this homicide case of approximately nine years between conviction and the hearing of this appeal is nothing short of disgraceful. It is beyond belief that the Cocke C ounty Circuit Court Cler k’s o ffice did no t mo nitor th is app eal as it sho uld ha ve. W hat is even mo re inc redib le and distu rbing is that the Office of the District Attorney failed to take action to revoke Appellant’s bond in a homicide case until six years a fter the tim e for perf ecting an appea l had elaps ed.
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I. FACTS 2
Officer Lynn Shults of the Newport Police Department testified that he was called to the scene of a wreck at the Eastport Exxon Station on October 4, 1989. When Shults arrived, he received information that so meon e had b een sh ot. Shults subsequently entered the Eastport Market and found the victim, Jonathan Hicks, lying on his back. After determining that Hicks had no pulse, Shults saw that Hicks had car keys in his hand and that there was a trail of blood between Hicks a nd a ca r.
Ed Thompson testified that while he was at the Eastpo rt Market, a car sped through the car was h, mad e a u-turn , and hit a white car, m aking a lo t of racket. Shortly thereafter, Thompson heard what sounded like three firecrackers going off. Thompson then saw a man with blood coming out of his mouth run into the store, grab a ca ndy rack, and fall to the floor.
According to the autopsy report of Doctor Cleland Blake, Hicks died from internal hemorrhaging caused by a single gunshot wound to the chest. At the time of dea th, Hick s had an eth yl blood alcohol level of “0.10 gms 90” and had trace am ounts o f diazepa m and nordiaze pan in his system .
Detective Jimmy Gregg of the Newport Police Department testified that when he arrived at the scene at 9:18 p.m., he only found Hick’s car. Gregg then
2 During the approximately eight years between the notice of appeal and the filing of the record and briefs in this case, the tapes of Appellant’s trial, the hearing on his motion for a new trial, and the sentencing hearing were lost and thus, no transcript of the evidence could be prepared. Therefore, App ellant filed a state me nt of th e evid enc e and an am end ed st atem ent o f the e viden ce pu rsua nt to R ule 24(c) of the Tennessee Rules of Appellate Procedure.
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went to Cocke County Baptist Hospital where Appellant had been transported by Officer James Holt. After Appellant received treatment for two stab woun ds to h is left arm, Appellant signed a waiver of his Miranda rights. Appe llant su bseq uently gave a statement to the police that was introduce d into eviden ce alo ng with his waiver of rights form. A knife that was recovered from Appellant’s car was also appare ntly introduc ed throu gh the tes timony o f Detective Gregg .
In the statement that he gave to police, Appellant said that while he was at the service station, Hic ks drove up and crashe d into Ap pellant’s ca r. Appellant then demanded that Hicks pay for the damage and when Hicks refused, the two began fighting. At some point, Hicks stabbed Appellant in the arm. Appellant subseq uently went back to his vehicle, opened the door, pulled a gun out from under the driver’s seat, and then shot Hicks. Appellant then left the scene and threw the gun in a rive r. Appellan t later turned himse lf in to the police .
At trial, Appellant testified that he was parked at the car wash when Hicks crashed into his car. The two men got into an argument about the damage and they eventually began fighting. Hicks subsequently stabbed Appellant twice, and Appellant retrieved a gun fro m his car. App ellant then fired two wa rning sho ts into the air. Hicks then opened the passenger door of his car, and Appellant shot Hicks in order to disable him because Appellant believed that Hicks was attempting to get a gun. Appe llant then left the scene , threw the gun into a river, and the n turned himse lf in to the police .
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II. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to support his conviction. When an appellant challenges th e suffic iency o f the evid ence , this Court is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury, approve d by the trial jud ge, accre dits the testimony of the S tate’s w itness es an d reso lves all conflicts in the testim ony in favor of the Sta te. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). Although an accuse d is origina lly cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 91 4 (Ten n. 1982 ). Hence , on app eal, the bu rden of p roof rests with Appellant to dem onstra te the in sufficie ncy of the convictin g eviden ce. Id. On appe al, “the [S]tate is entitled to the strongest legitimate view of the evidence as well as all reas onable and legitim ate inferen ces that may be dra wn there from.” Id. Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is wh ether any rationa l trier of fact could have found the accused guilty of ever y elem ent of th e offen se be yond a reaso nable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducting our evaluation of the convicting evid ence , this Court is preclud ed from rewe ighing or re conside ring the ev idence . State v. Morgan, 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996). M oreover , this Court may not substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure provides, “finding s of gu ilt in crim inal actions whe ther by the trial court or jury
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shall be set as ide if the evide nce is insu fficient to support the findings by the trier of fact beyo nd a rea sonab le doub t.”
In this case , Appella nt was co nvicted of vo luntary m anslau ghter. At the time of the shooting, manslaughter was defined as “the unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act.” Tenn. Code Ann. § 39-2-221 (1989). “[V]oluntary manslaughter is when one kills another upon a sudden heat, produced by adequate provocation without malice, an d is an act of passion ra ther than judgm ent.” State v. Morgan, 541 S.W.2d 385, 390 (Tenn. 1976). Furthermore, a homicide that results from mutual combat has also been recognized as volunta ry man slaugh ter by Te nness ee cou rts. See State v. Johnson, 909 S.W .2d 461 , 464 (T enn. C rim. App . 1995); Wrig ht v. State, 497 S.W .2d 588, 592 (Tenn. Crim . App. 1973 ).
It is clear that the ele ments of the offense of volun tary manslau ghter were proven by the State. Indee d, the evidence showed that after a car wreck, Appellant and H icks en gage d in a heated argument, Appellant and Hicks began fighting, Hicks stabbed Appellant in the arm, Appellant returned to his car and retrieved a gun , and A ppella nt then shot a nd killed Hicks. Appellant does not challenge these fac ts. Rathe r, Appellant contends that the evidence was insufficient to support his conviction because the State failed to ne gate his claim that he ac ted in self-d efense .
At the time of the sh ooting, the app licable self-defense statute provided that a party could prevent an offense against his person by employing “resistance
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sufficient to preven t the offens e.” Tenn. Code A nn. § 38-2-10 2 (1989). Furthe r, in order to excuse a homicide on the ground of self-defense, the defendant must show that at the time of the killing he or she was acting upon a well-founded fear of death or great bodily harm, an d that th e actio ns tak en we re nec essa ry in self-defense. See State v. Wilson, 556 S.W.2d 232, 234 (Tenn. 1977). The State had the burden of negating the claim that the ac cuse d acte d in self-defense. See, e.g., Henley v. State, 520 S.W.2d 361, 363 (Tenn. Crim. App. 1974). 3 Wh ether th e defe ndan t acted in self-d efens e is a factual determination to be ma de by the jury. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W .2d 724, 727 (Tenn. Crim . App. 1993 ). The jury obviously rejected Appellant’s claim of self-defense.
Appellant contends that the State failed to introduce any evidence that contra dicted his testimony that he only sh ot Hick s bec ause Hicks was a cting in a way that c aused him to be lieve that H icks was attempting to ob tain a gun to shoot him. Howe ver, the State introduced Appellant’s signed statement that he gave to police in which he admitted shooting Hicks after argu ing and fighting with him. In this statement, Appellant did not claim that he shot Hicks in self-defense and he made no mention of any belief that Hicks was attempting to retrieve a gun to shoot him . Appellan t also ma de no m ention of firing any warn ing shots at Hicks. Instead, Appellant stated that he had shot Hicks and he was not sure how many times he ha d sho t him. T his sta teme nt in wh ich Ap pellant made no mention of self-defense or the belief that Hicks was attempting to retrieve a gun,
3 The S tate retains this burde n unde r curren t law. See, State v. Belser, 945 S.W.2d 776 (Tenn.
Crim. App. 1996).
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provides a sufficient basis for a rational juror to conclude that Appellant did not act in self-defense.4
In summary, the evidence established that Appellant shot and killed Hicks after arguing and fighting with him about the damage to his car. Thus, we conclude that whe n the evid ence is viewed in the light most favorable to the State, a rational jury could find beyond a reasonable doubt that Appellant had comm itted the offe nse of vo luntary m anslau ghter. Th is issue ha s no m erit. 5
III. COMMENT FROM THE BAILIFF
Appellant contends that the jury was prejudiced as a result of a comment from the bailiff.
The record indicates that during delibera tions, the jury advised the b ailiff that it had a leg al questio n for the co urt. Wh en the b ailiff was asked whether one juror could go in and ask the court the question, the bailiff responded that all of
4
Appellant contends that the State’s introduction of pre-trial statement did not rebut his claim of self-defense because the statement was entirely consistent with his testimony at trial. While it true that the jury was entitled to co nclude th at the two s tatem ents we re cons istent, the jury w as also e ntitled to conclude that the two statemetns were contradictory and that the pre-trial statement was the one which was worthy of belief. Indeed, the determination of whether the two statements were consistent or contradictory and whether Appellant had been untruthful when he gave either of the statements was strict ly for th e jury. It is well- esta blishe d tha t “[t]he cred ibility of th e witn ess es, th e we ight to be giv en th eir testimony, and the recondiliation of conflicts in the evidence are matters entrusted excusively to the jury at the triers of fact.” State v. Cribbs, 967 S.W .2d 773, 793 (Tenn. 1998 ).
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Appellant also contends, for the same reasons that he contends that the evidence was insufficient to support his conviction, that the trial court erred when it denied his motion for judgment of acquittal. “When the trial court is presented with a motion for judgment of acquittal, the only concern is the legal sufficiency, as opposed to the weight, of the evidence.” State v. Blanton, 926 S.W.2d 953, 957 (Te nn. C rim . App . 199 6) (c itation om itted). “To d eterm ine w heth er the evide nce is insu fficie nt to s usta in the conviction, the trial court must consider the evidence introduced by both parties, disregard any evidence introduced by the accused that conflicts with the evidence adduced by the State, and afford the State the strongest legitimate view of the evidence, including all reasonable inferences which may be drawn from the eviden ce.” Id. at 957–58 (citation and internal quotations omitted). For the same reasons that we conclude that the evidence was sufficient to support Appellant’s conviction, we conclude that the trial co urt pr ope rly den ied th e m otion for ju dgm ent o f acq uittal.
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the jurors must go into open court to ask the question . The ba iliff was then asked what would happen if the jury could not agree on a verdict, a nd the b ailiff responded that there was a possibility that the jury could be sequestered overnigh t. The bailiff then left to inform the co urt that the jury had a question. Five minutes later when the b ailiff had gathered the jury into the court room, the jury inform ed the co urt that it had reache d a verdic t.
In its order denying the motion for a new trial, the trial court found that although the bailiff’s comment was improper, the error was harmless. The trial court based this determ ination on its findings of fact that the jury had only been deliberating for forty-five minutes when the comment was made, that the comment was m ade o ne an d one -half ho urs be fore the court’s usua l adjournment time, and that the jury already knew that it could be sequestered before th e bailiff made the comment. Thus, the trial court found that the verdict w as no t mad e in respon se to any appreh ension of overnig ht sequ estration.
W e agree with Appellant that the bailiff should not have made the comm ent. However, we conclude that it was harmless error. In State v. Howa rd Barn well, No. 935, 1986 WL 4491 (Tenn. Crim. App. April 14, 1986), the defendant alleged that the trial court impro perly influenced the jury and coerced the jury into reaching a verdict when the court informed the jury that if it could not reach a verdict, it would be sequestered until the next day. The defendant contended that because the jury returned with a verdict only forty-five minutes later, the verdict had been coerced. T his Co urt rejec ted the defen dant’s argument and he ld that the ve rdict was n ot forced by threats or coerc ion. Id. at *8. This Cou rt concluded that the trial court’s comment was “merely a comment
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upon the schedule for deliberations, no t coercion to influenc e a hung jury.” Id. This Court noted that there was no evidence that the jury had reached an impasse and could not agree on a verdict before the trial court made the comm ent. Id.
W e conc lude th at in this case, as in Barn well, the verdict was not coerced by a comment about possible sequestration. Nothing in the rec ord indicates that the jury had re ached an imp asse a nd we a gree with the trial cour t that the fact that the jury h ad on ly been delibe rating fo r a relativ ely short time supports the inference that they had not reached an im pass e. Furth er, con trary to A ppella nt’s assertion, there is absolutely nothing in the record that indicates that the jury was evenly divided, or even divided at all, when the bailiff mad e the com ment. Finally, the fact that the jury already knew about the possibility of sequestration and that they jury reached a verdict one and one-half h ours b efore d elibera tions w ould have been adjourned indicates that the verdict was not reache d in respo nse to the comment about sequestration. Thus, we conclude that the bailiff’s comment was ha rmless error. See Tenn . R. App . P. 36(b). T his issue has no merit.
IV. LENGTH OF SENTENCE
Appellant contends that the trial court erroneously imposed a longer senten ce than he des erves.
Initially, we note that the offense in this case occurred on October 4, 1989, before the 1989 Sentencing Act went into effect on November 1, 1989. How ever, Appellant was tried and sentenced after the effective date of the Act on
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September 25, 1990. Thus, “the trial court was required to calculate the proper sentence under both the 1982 and the 1989 sentencing acts and then impose the least severe sente nce.” State v. Carico, 968 S.W.2d 280, 286 (Tenn. 1998). Under the 1982 Sentencing Act, the sentence for a Range I offender convicted of voluntary manslaughter was between two and six years. Tenn. Code Ann. §§ 39-2-222, 40-35-109(a) (1982). Under the 1989 Sentencing Act, the pre-1989 version of voluntary manslaughter is considered to be a Class C felony. Tenn. Code Ann. § 40-3 5-118 (198 9). The sen tence for a Range I offender convicted of a Class C felony is between three and six years. Tenn Code Ann. § 40-35- 112(a)(3 ) (1989).
Appellant contends that he is entitled to a new sentencing hearing because the record does not indica te whe ther the trial cou rt sente nced him under the 1982 or 1989 Sentencing Act and does not indicate what enhancement or mitigating factors the court applied to his sentence.6 Howe ver, App ellant had the duty to prepare a record which co nveys a fa ir, accurate and co mplete accou nt of what transpired in the trial court with respect to the issues which form the basis of his appe al. State v. Gibson, 973 S.W .2d 231, 244 (T enn. C rim. App . 1997); State v. Griffis; 964 S.W.2d 577, 592 (Tenn. Crim. App. 1997); State v. S mith, 891 S.W.2d 922, 932 (Tenn. Crim. App. 1994). When the record is incomplete, or does not contain the proceedings relevant to an issue, this Court is precluded from conside ring the iss ue. Gibson, 973 S.W .2d at 244 ; Griffis; 964 S.W.2d at 592–93; Smith , 891 S.W.2d at 932. Furthermore, this Court must conc lusively
6 In the amended statement of the evidence, App ellant states that the trial court apparently gave mitigating weight to Appellant’s age at the time of the offense and to Appellant’s contention that he was acting under strong provocation when he committed the offense. However, the amended statement of the evidence contains no information about what enhancement factors were applied to Appellant’s sentence.
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presume that the rulin g of the trial co urt was correct in all partic ulars. Gibson, 973 S.W .2d at 244 ; Smith , 891 S.W.2d at 932. In this case, Appellant has failed to fulfill his duty of pre paring a record th at is a fair, acc urate an d com plete account of what transpired in the trial court with respect to sentencing.7 Therefore, this Court mus t presu me th at the tria l court’s imposition of a five year sentence was co rrect. See Gibson, 973 S.W.2d at 244; Smith , 891 S.W.2d at 932. T his issue has no merit.
V. DENIAL OF PROBATION
Appellant contends that the trial court erred when it failed to impose probation.8
Initially, we note that Appellant was eligible for probation under the 1982 Sentencing Act because he received a sentence of ten years or less and he was not convicted of certain e nume rated offe nses. See Tenn. Code Ann. § 40-35- 303(a) (1982). Appellant was also eligible for probation under the 1989 Sentencing Act bec ause h e receive d a sen tence o f eight years or less and he
7 Appellant contends that he should not be pen alized for failure to prepare a complete record because the tapes of his trial, the hearing on his motion for a new trial, and the sentencing hearing we re lost through no fault of his own. However, the record indicates that after Appellant filed notice of appeal on O ctob er 22 , 199 0, no effo rt was ma de to obta in tran scrip ts for appr oxim ately s even to eigh t years while he remained free on bond. In fact, in the affidavit of the court reporter who was at Appellant’s trial, the hearing on the motion for new trial, and the sentencing hearing, the court reporter stated that she has no record or recollection of the transcripts ever having been ordered until late 1997 or early 1998. “When the appellant is unable to prepare or have prepared a transcript of the evidence and proceedings, the burden is on the appellant to show . . . [his or her] inability to prepare a transcript, the reasons for the inability, and that the inability was brought about by matters outside . . . [his or her] control . . . .” State v. Rhoden, 739 S.W.2d 6, 14 (Tenn. Crim. App. 1987) (citation and internal quotations omitted). Having waited for seven to eig ht yea rs wh ile free on bo nd be fore requ estin g the trans cripts , App ellant cann ot no w cla im th at he is without fault in failing to have a complete record prepared.
8 Although Appellant’s statement of the issue refers to alternative sentencing, the subsequent argu me nt an d cita tion to auth orities relate s only t o the denia l of pro batio n. Ou r res olutio n of th is iss ue is the same regardless of the distinction between probation and the other forms of alternative sentencing.
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was not co nvicted of certa in enum erated o ffenses. See Tenn. Code Ann. § 40- 35-303(a) (1989). In addition, the trial court was required to consider probation as an alternative to confinement under both the 1982 and 1989 Sentencing Acts. See Tenn. C ode Ann . §§ 40-35-30 3(b) (1982), 40 -35-303(b) (19 89).
Appellant contends that he is entitled to a new sentencing hearing because the record does not ind icate w hethe r the trial c ourt co nside red pro bation and if it did, what fa ctors it relied o n in deny ing prob ation. Ho wever, as previously stated, Appellant had the duty to prepa re a record which conveys a fair, accura te and complete account of what transpired in the trial court with respect to the issues on app eal. Gibson, 973 S.W.2d at 244; Griffis; 964 S.W .2d at 592 ; Smith , 891 S.W .2d at 932 . Becau se App ellant has failed to fulfil this duty, this Cour t is precluded from considering this issue and we must conclusively presume that the trial court properly denied probation. See Gibson, 973 S.W .2d at 244 ; Smith , 891 S.W .2d at 932 . This issu e has n o merit.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
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JAMES CURWOOD WITT, JR., JUDGE