State of Tennessee v. Steve Carl King ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 13, 2009 Session
STATE OF TENNESSEE v. STEVE CARL KING
Direct Appeal from the Circuit Court for Giles County
No. 12504 Robert L. Jones, Judge
No. M2008-01251-CCA-R3-CD - Filed April 9, 2010
A Giles County jury convicted the Defendant, Steve Carl King, of attempted first degree
murder, and the trial court sentenced him to twenty-two years in the Tennessee Department
of Correction. On appeal the Defendant contends: (1) the evidence was insufficient to
support his conviction; (2) the trial court erred when it admitted statements the Defendant
gave to Illinois police; (3) the trial court erred when it allowed two witnesses to testify
although the State had failed to disclose their existence in accordance with Tennessee Rule
of Criminal Procedure 16; and (4) the trial court erred when it denied the Defendant’s
petition for a writ of error coram nobis based on the victim’s recanted testimony. After a
thorough review of the record and the applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and A LAN E. G LENN, JJ., joined.
Manuel B. Russ, Nashville, Tennessee, for the Appellant, Steve Carl King.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Renee W. Turner, Assistant Attorney General; Patrick Butler and Richard Dunavant, District
Attorneys General; Jeff Burks, Assistant District Attorney General, for the Appellee, State
of Tennessee.
OPINION
I. Facts
This case arises from the Defendant stabbing his girlfriend, Gloria McCormick, and
running over her while driving his tractor-trailer at a rest stop in Giles County, Tennessee. In
February 2006, a Giles County grand jury indicted the Defendant for attempted first degree
murder based on this event. In April 2006, before the Defendant’s trial on this charge, the
Defendant engaged in a physical altercation with the victim’s brother, David Edwards, in a bar
in Chicago, Illinois. Illinois police officers arrived to investigate the altercation, and, in the
course of the investigation, the Defendant made several statements about his conduct in the
events surrounding the November 2005 attempted first degree murder charge.
The Defendant’s trial was set for November 6, 2006. On September 19, 2006, the State
provided the Defendant with its initial list of witnesses who would testify at the Defendant’s
trial. On October 30, 2006, the State supplemented its original witness list to include one of
the Illinois police officers who witnessed the Defendant’s April 2006 statements. The
Defendant moved before trial to suppress these statements, and the trial court took the matter
under advisement.
At trial, the following evidence was presented: Gloria McCormick (“the victim”), who
lived in Chicago at the time of trial, testified the Defendant had been her boyfriend for eleven
years at the time of this attack. He was a commercial truck driver, and the victim sometimes
accompanied him on his “runs.” She was accompanying the Defendant on a run from
Jacksonville, Florida, to Chicago when she received the injuries that were the basis of this
prosecution. She recalled that on the day of the incident, November 4, 2005, she and the
Defendant stopped in northern Alabama and gained permission to park the truck overnight in
the parking lot of a Harley-Davidson shop.
After parking, they walked to a nearby Hooters where they shared three pitchers of beer.
The victim estimated she consumed two mugs of beer from each pitcher. While at Hooters,
the Defendant began to tell the victim she was a “whore,” and that she was “fat” and
“uneducated.” The victim explained “[t]hat’s just the way [the Defendant] gets when he
drinks: He just starts calling me a whore.” The name-calling escalated into an argument, and
the pair left Hooters and returned to the truck. When she returned to the truck, the victim took
their dog, a pit-bull, for a walk. When she returned to the truck, she and the Defendant
resumed the arguing and “name-calling.” The pair decided to continue driving rather than
sleep at the Harley-Davidson shop, and they continued arguing as they drove.
At some point while they drove toward Tennessee, the Defendant reached behind the
victim and retrieved a black-handled knife from a cabinet behind the victim’s seat. She
testified the Defendant had no set place he stored this knife, alternately carrying the knife in
his jeans or storing it in various areas of the truck. The victim identified a knife police
retrieved from the truck as the knife the Defendant retrieved. With the knife in hand, the
Defendant then asked the victim if she “wanted to see how sharp his knife [was].” He then
opened the knife and began to swing it at the victim, in the area between the passenger and
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driver seats. The Defendant continued to swing the knife for several minutes while repeating
his question, and the victim scooted as far away from the Defendant as she could, turning her
back to the Defendant and clinging to the passenger door. The victim, at some point, raised
her left hand to protect herself, and the knife sliced her ring and middle fingers. She began
bleeding profusely and asked the Defendant to get her medical attention, but the Defendant
initially refused, saying he knew she would have him arrested if she got medical attention. The
victim got a cloth from the back of the cab and wrapped the cloth around her fingers. She then
hung her hand out the passenger window to avoid bleeding in the truck because she did not
want the Defendant “to get in trouble.” The Defendant eventually agreed to stop at a rest area
in order for the victim to get help.
The Defendant exited the highway at the Ardmore Welcome Center in Giles County and
pulled up beside the sidewalk in front of the Welcome Center. The back portion of the truck’s
cab contained a top and bottom bunk, and the victim stored her clothes and medication beneath
the bottom bunk’s mattress in a storage compartment. When the Defendant pulled up to the
sidewalk, the victim went to the back of the truck’s cab to retrieve medication she needed for
her multiple sclerosis. As she raised the mattress to access the storage compartment, the
Defendant struck the victim in the back of the head, causing her to drop the mattress and fall
onto the bed. The victim lost consciousness briefly and, consequently, could not clearly recall
the details of what next occurred. She remembered seeing the Defendant standing over her,
at which point she tried to rise from the bed, but the Defendant fought with her. She struck at
the Defendant while he pulled her hair and screamed at her, continuing to call her a “whore,”
and tell her she was “fat” and “uneducated.”
The Defendant eventually sat back down in the driver’s seat. When the victim was
finally able to rise from the bed, she retrieved the plastic bags that contained her medication.
Carrying the bags, she returned to the front of the cab, opened the passenger door, and stepped
down to the sidewalk. As she exited the vehicle, she saw the Defendant’s knife on the
dashboard. The pit-bull exited the truck with the victim.
On the sidewalk, the victim realized her legs and shorts were covered in blood. The
victim could tell that blood was flowing “down [her] legs” and into her socks and shoes, but
she did not realize she had been cut and could not identify from where she was bleeding. At
trial, the victim identified a pair of jean shorts with several slashes in the back and crotch as
the shorts she wore the night she was run over. The victim said the shorts were brand new and
had no cuts or tears when she put them on before these events.
The victim saw a man behind the trailer, so she began to walk toward the man to ask
him for help. The victim testified that, as she walked, she stopped and stared at the truck for
reasons she could not recall: “I was walking and I stopped, and I stared at the truck. And I
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don’t know what I was thinking about. I don’t know why I stopped. I just stopped.” The
Defendant then moved the truck forward, turning so that its rear tires came onto the curb of the
sidewalk. The moving trailer hit the victim’s shoulders, knocking her to the ground. The
victim said she landed on either her side or buttocks and was unable to rise before the trailer’s
back tires began to roll over her body. The Defendant continued to drive the truck forward
over her body, even as a man yelled for him to stop. She recalled that the trailer kept moving
forward after it ran over her body.
The victim then began to pass in and out of consciousness. She next recalled seeing a
man standing over her talking into a cell phone and requesting an airlift team immediately.
Her last memory is of hearing the Defendant say, “Oh, baby, I can’t believe this; I’ve never
seen anybody’s body like this.” She woke up a month-and-a-half later in a hospital.
On cross-examination, the victim recalled that the passenger seat belt was broken and
had been replaced with a bolt and screw. She explained that the latch had been taken out and
that, in order to fasten the seat belt, she inserted a bolt through a hole in the belt and fastened
the bolt to a screw attached to the seat below her left buttock.
The victim testified she could not recall when she and the Defendant left Jacksonville,
the name of the city in Georgia where they stopped along the way to Tennessee, the name of
the city in Alabama where they stopped to visit the Harley-Davidson shop and the Hooters, or
the time they arrived in the Alabama city. She did recall that they drove between two and three
hours before reaching the city in Georgia where they stopped and that the Harley-Davidson
shop was closing when they arrived. She explained her disorientation was due to the fact that,
although she had accompanied the Defendant several times on the Chicago-Jacksonville run,
the Defendant took a new route every time. She also testified the Defendant took his
prescribed Valium on the day of the incident, as he “always” did.
The victim recalled there was still daylight outside when she and the Defendant entered
Hooters. She estimated she consumed six twelve-ounce mugs of beer, and the Defendant
consumed almost twice as much as she did at Hooters. She denied she was drunk when she
and the Defendant left Hooters around 10:00 p.m. but admitted she felt “buzzed.” She said she
and the Defendant only lay in bed for a short time while the trailer was parked at the Harley-
Davidson shop, while they continued to argue. The victim conceded she cursed and called the
Defendant names in response to his yelling. Approximately forty-five minutes after leaving
Hooters, the Defendant returned to the driver’s seat and drove the truck back onto the
interstate, despite their plans to spend the night in the parking lot.
When the Defendant began driving again, the victim returned to her place in the
passenger seat and fastened her seat belt with the bolt and screw. She recalled they had been
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driving approximately thirty to forty-five minutes when the Defendant began swinging his
knife at her. She struggled to free herself from her crude seat belt as he held onto the steering
wheel and leaned toward her, continuing to swing the knife at her. She explained his knife cut
her hand when she reached down to shield her legs from his swings. The victim recalled that
blood immediately began to “pulsate” out of her fingers, but she denied waving her hand
around the truck in a way that would spread blood throughout the cab. She also denied placing
her hand in a cooler between the passenger and driver seat, insisting she would never put an
open wound in a cooler that contained food. She said she finished freeing herself from the seat
belt and hung her hand out the window for less than a minute until the pain became unbearable,
at which point she went to the back of the cab to wrap a cloth she found on the floor around
her fingers. She spent only a few seconds in the back of the cab and returned to the passenger
seat where she remained until the Defendant exited the highway and parked at the Welcome
Center one or two minutes later. She recalled it was around 10:30 p.m. at this point, so it was
dark when they pulled off the highway.
The victim testified that when the Defendant stopped the truck in front of the Welcome
Center, her wrapped hand was bleeding less. She then rose and entered the back of the cab.
She recalled that, seconds after she entered the back of the cab, something struck her in the
back of the head, knocking her to the lower bunk. The victim reiterated that she did not see
the Defendant hit her, but she emphasized that she was facing the back of cab, away from the
Defendant, when she was hit. She testified that she did not “really remember being . . .
knocked out,” saying, “[I]t’s just because it all happened so fast. I dropped the bunk, and I fell
onto the bed. And the next thing I know, I was getting up out of the bed. So I must have been
knocked out or blacked out, . . . I don’t know.” The victim recalled fighting with the
Defendant in the back of the cab, and she testified that at some point she hit the Defendant’s
face with her fist. The victim fell out of consciousness again, and when she regained
consciousness, she saw the Defendant seated in the driver’s seat. She testified that, when she
woke up, she did not feel any pain, even in her hand, and that she did not notice any injury to
her vaginal area, her buttocks, or her stomach.
The victim rose from the bunk and lifted the mattress again to retrieve her medication,
which was inside one or more plastic grocery bags. She grabbed the bags against her chest
because she could not find their handles and passed through the front of the truck’s cab to exit
the truck. She agreed that this placed her easily within the Defendant’s reach and that the
Defendant did not physically or verbally attempt to keep her from leaving the truck, despite his
opportunity to do so. She agreed that the Defendant was still intoxicated when they arrived
at the Welcome Center.
The victim reiterated that when she exited the truck she did not realize she was bleeding
from anywhere other than her hand. She saw a public telephone, which she thought of using
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to summon help because her cell phone battery was almost dead. Instead, having noticed a
man standing behind the truck, she began to walk toward the man, traveling on the sidewalk
along the side of the truck. At trial, the victim could not recall whether Michael Soloman, who
testified he witnessed the victim being run over, was the man she saw. She estimated that she
was half-way down the truck when she stopped and stared at the trailer. As she stared she
heard someone tell the Defendant he could not park by the sidewalk, and then the trailer moved
forward and knocked her to ground. The victim recalled that she screamed for the Defendant
to stop moving the truck because she was lying on the ground beneath the trailer, in the path
of the back tires. The truck continued moving, however, and the back tires ran over the
victim’s body. Emergency responders later discovered several wounds in her groin and
abdominal area. She testified she did not recall how she received these wounds.
On redirect examination, the victim recalled that the Defendant, although he was
intoxicated, did not have any difficulty operating the tractor-trailer after they left Hooters. She
also recalled that the truck had come to a complete stop in front of the Welcome Center when
she went to the back of the truck’s cab and was hit in the head from behind.
Special Agent Michael J. Little, a forensic scientist supervisor with the Tennessee
Bureau of Investigation was certified by the trial court as an expert in the area of toxicology.
He testified he received blood samples taken from the victim at 3:00 a.m. and from the
Defendant at 1:45 a.m. From these samples, he determined the Defendant’s blood alcohol
concentration (“BAC”) was .05, and the victim’s BAC was .06. On cross-examination, he
explained that, after a person stops ingesting alcohol, his BAC level dissipates at a rate of
between .01 and .02 per hour. Therefore, Agent Little explained, the victim and the
Defendant’s BAC levels could have been higher around 10:30 p.m.
Jeffery Dale Crews, a Special Agent Forensic Scientist with the TBI Crime Laboratory
in Nashville and certified as an expert in the area of analytical toxicology, testified he received
a blood sample from the Defendant and the victim. From the Defendant’s blood sample, he
identified diazepam, which is a tranquilizer. He identified amitrptyline, an anti-depressant, and
nortriptyline in the victim’s sample.
Michael Solomon, a maintenance worker at the Ardmore Welcome Center, testified
he was working at the Welcome Center the night of the incident. Around 11:15 p.m., from
inside the Welcome Center, he saw the Defendant’s tractor-trailer pull up and park beside the
sidewalk. Because the Defendant was blocking traffic as he was parked, Solomon walked
outside to tell the Defendant to move. Outside, he saw the couple’s dog walking around the
ground near the trailer portion of the truck, and he saw the victim getting out of the cab. The
victim turned around and grabbed three small shopping bags from the truck after she got out.
Solomon described what he saw next:
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[S]he just held the bags in her arms, and turned and walked down the side of
the trailer. And about halfway down the trailer, she stopped, turned, facing the
trailer. And the driver, in the meantime, put the truck in gear and started to
pull over on the shoulder, off the ramp. And the trailer knocked her over, and
the wheels ran over her mid-section.
He recalled that the truck continued moving after it ran over the victim, so he ran in front of
the truck, flagging down the Defendant. The Defendant finally stopped when he was out of
the lane of traffic. When the Defendant stopped, Solomon walked to the driver side of the cab
and told the Defendant he had run over a lady. The Defendant said, “[N]o, I didn’t,” so
Solomon told the Defendant to get out and come see the victim. Solomon and the Defendant
approached the victim who lay near the curb on an area that was “more or less gravel.” He
said trucks commonly passed through this portion of the road and, when they did so, the tires
of their trailers went over the curb, which had gradually worn away the grass from the area
in which the victim lay.
Solomon recalled that the victim was unconscious and portions of her intestines were
lying outside her body. Solomon called 9-1-1 on his cell phone and went inside the Welcome
Center to get a flashlight. When he emerged from the Welcome Center, he found the
Defendant kneeling over the victim and trying to give her water. Soon thereafter, emergency
personnel responded.
On cross-examination, Solomon clarified that, because it was dark outside when he saw
the victim climb down from the truck, he could not tell whether she was bleeding. He recalled
that the victim spoke with the Defendant for less than a minute when she got out of the truck.
Solomon said that the victim was walking in the gutter when she turned and began to walk to
the end of the trailer. He explained that, although the Defendant kept moving the truck
forward after he ran over the victim, he was not sure whether the Defendant was trying to
drive back onto the interstate or to park the truck in a spot outside the parking lot. He further
noted that many other truck drivers parked outside the lot when the parking lot was full, but
Solomon could not recall whether the parking lot was full at the time of this incident. He
recalled that, when he later found the Defendant kneeling beside the victim, he did not hear
the victim say that the Defendant had cut her.
On further cross-examination, Solomon clarified that the victim spoke with the
Defendant for two or three minutes after she descended from the truck. He also said that, in
the two or three hours he spent at the Welcome Center after the accident, he did not notice any
blood where the victim stood beside the passenger door while she spoke with the Defendant.
Solomon said that, from where he stood, approximately thirty yards away, he did not notice
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that the victim had any difficulty walking when she went from the door toward the back of
the truck.
Maria Garrett, a Giles County Ambulance Service paramedic, testified she responded
to the Welcome Center to attend to the victim on the night in question. She confirmed
Solomon’s testimony that the victim lay on her back eviscerated on the grass beside the curb
when Garrett arrived. Garrett also recalled that the Defendant was kneeling by the victim’s
head, holding her hand, and telling the victim everything would be all right. She also
observed that the victim suffered “crushing” trauma to her pelvic area and legs. She testified
she removed the victim’s shorts by cutting the material along the left side of the zipper and
down through the legs areas. The State introduced the shorts into evidence, and Garrett
agreed that the back of the shorts bore tears and cuts that Garrett did not make. She recalled
that she attended to the victim until a Med-Flight team arrived to fly the victim to the Level
I Trauma Center of Maine Hospital in Huntsville, Alabama.
Dr. James Flatt, certified as a medical expert in the field of urology, testified he was
on call the night the victim was transported to Huntsville Maine Hospital. When he reported
to the victim’s surgery room, he found two tears in the victim’s bladder, which left eighty
percent of the front and top of the victim’s bladder torn open. He testified that the tears were
“straight cut[s]” that only a sharp instrument, such as a knife, could make. Dr. Flatt closed
the victim’s bladder and placed a tube in the victim’s bladder so it would drain properly. He
estimated this repair took thirty minutes. On cross-examination, Dr. Flatt said the State had
never asked him to view either the knife seized from the Defendant’s truck or the
underpinnings of the truck.
Dr. Rony Najjar, a trauma surgeon at Huntsville Maine Hospital and certified as an
expert in the area of trauma surgery, testified he treated the victim immediately after she
arrived at Huntsville Maine Hospital. He was the attending surgeon in the victim’s surgery
room. Dr. Najjar recalled that the victim, in physiological shock, was in extremely critical
condition when she entered the surgery room. Dr. Najjar learned the victim suffered her
injuries from being run over by a truck. The doctor observed that the victim had multiple
lacerations around her genital, pelvic, and buttock area. He testified one cut ran from the front
right hip into her groin, another ran across her abdomen where the bladder would be, another
ran across the left side of the groin area, and yet another ran on the backside of the right thigh
and buttock. Dr. Najjar confirmed that the cuts on the victim’s shorts coincided with the cuts
he observed on her abdomen and groin. Also, the doctor observed that the victim’s intestines
were protruding from her perineum, the area between her legs. Reviewing her medical
records, he confirmed that the victim had two lacerations on the fingers of her left hand. The
victim’s injuries made surgery immediately necessary.
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Describing the emergency surgery performed on the victim, Dr. Najjar said that when
he entered the victim’s abdomen, he immediately noticed that the bladder bore two large cuts
in the back and front that “lined up in a line.” He recalled that the victim’s intestines had
protruded through the cuts in her bladder. The doctor explained that crushing or blunt force
trauma causes a “very destructive type of pattern to the tissues,” usually in the form of a
“gaping hole”rather than the smooth cuts he found on the victim’s bladder. Because the cuts
on the bladder were long, linear, and smooth, allowing the intestines to pass through, Dr.
Najjar believed something sharp like a piece of glass or a knife caused the cuts in the front
and back of the bladder. He testified that the lacerations to the victim’s bladder could
“potentially” have caused her to lose consciousness “in a very short period of time.”
On cross-examination, Dr. Najjar confirmed that the victim’s medical records reflected
that neither he nor any other doctor present noticed any obvious laceration or bruise to the
victim’s head or oral cavity. He confirmed that he asked Dr. William J. McFeeley to examine
the victim and that Dr. McFeeley found the victim’s head showed no signs of struggle, such
as bruises around the eyes or behind the ears. He also reiterated that, while he could testify
that a knife probably caused the cuts to the victim’s bladder, he could not state with absolute
certainty that a knife caused the cuts. Dr. Najjar confirmed that the State never asked him to
examine the knife seized in this case or the underpinnings of the Defendant’s truck.
On redirect examination, the State showed Dr. Najjar the knife seized from the
Defendant’s truck, and the doctor testified that the knife could have been used to make the
lacerations in the victim’s bladder.
On recross examination, Dr. Najjar reiterated that he could not state with “100 percent”
certainty that the knife seized from the Defendant caused the cuts to the victim’s bladder.
Also, the doctor agreed that a person could receive both penetrating and blunt trauma injuries
from an automobile accident.
Trooper Allan Brenneis, a trooper with the Tennessee Highway Patrol’s Critical
Response Team, testified that his team reconstructs crash crime scenes. He recalled that he
reported to the Welcome Center in Giles County on the night in question. He testified that,
when he arrived, he realized that the injury could not have occurred where the victim’s body
lay and the truck stood because the ground bore little blood. Wishing to investigate this
discrepancy, he entered the cab of the truck and found it covered with blood.
Trooper Brenneis used a computer program to create a “Situation Map” documenting
his observations about the scene of the accident. The map reflected that Trooper Brenneis
found the victim’s blood beside the area of the curb worn down by trucks passing over the
protruding portion of the curb.
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The trooper then reviewed a series of photographs he took the night of the accident and
explained what they depicted. Several photographs show patches of blood on the grass, near
the protruding portion of the curb where several witnesses testified the victim lay after she
was run over. The trooper testified this picture also showed tire tracks running over the curb.
One photograph showed blood spattered on the back rear tire. Another photograph showed
a blood-spattered calender attached to the interior of the upper portion of the driver’s side
door. Another showed that the passenger window contained a large amount of blood on both
its interior and its exterior. The next photograph showed the outside of the passenger’s door.
The door contained blood spatter rather than a dripped line of blood, which indicated that the
blood struck the door at a high velocity. Another photograph showed blood spattered on the
front corner of the trailer immediately behind the truck cab, spattered from mid-way up the
corner of the trailer to the top of the trailer’s corner, and spattered above the passenger
window.
The Defendant told Trooper Brenneis that, after the victim opened her door at the
Welcome Center, their dog jumped out, the victim got out to follow him, and the Defendant
then accidentally ran over the victim. After viewing the truck’s cab, the trooper was confused
about why the interior of the cab was bloody, so he asked the Defendant to explain the blood.
The Defendant told the trooper that he had cut his finger that morning, but the trooper noted
that this cut could not have been the source of all the blood in the truck’s cab. Trooper
Brenneis also reviewed several photographs he took of the Defendant. In these, the
Defendant’s legs and shorts appear bloody, but his hands appear clean.
On cross-examination, Trooper Brenneis explained that the TBI took over the
investigation of the accident a short time after he arrived on the scene and that the TBI only
asked him to create the Situation Map and did not request further accident reconstruction.
Also, neither the TBI nor his superior officers within the Highway Patrol asked him to
examine the truck’s underpinnings. He testified that he ordinarily would have examined the
underpinnings in order to determine whether they bore human matter. The trooper also
acknowledged that he did not determine how deep the blood on the curb where the victim lay
had soaked into the ground.
Trooper Brenneis confirmed that the truck’s windshield was cracked and that a low
impact force from within the truck’s cab appeared to have caused the crack. He testified,
however, that he found no hair or blood from the victim near the windshield to suggest that
the victim’s body collided with the windshield.
Trooper Jason Kelley of the Tennessee Highway Patrol testified he reported to the
Ardmore Welcome Center and saw a tractor-trailer sitting in the emergency lane where it had
exited the Welcome Center parking lot. When he arrived, emergency responders and
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Ardmore police officers were already present. The officers pointed him toward the victim,
and he saw the Defendant sitting at the victim’s head, giving her water. When he asked the
Defendant what happened, the Defendant said that the victim had opened the door to let the
dog out to urinate, the dog jumped out, and the victim jumped out after the dog. The
Defendant said that when she jumped out, he “r[a]n her over.” The trooper asked the
Defendant to get his paperwork and log book from his truck, and the Defendant complied.
Trooper Kelley filled out paperwork and informed another officer that a vehicular homicide
may have occurred.
The trooper recalled that, while he spoke with the Defendant, he noticed the Defendant
had blood on his hands and clothing. He described the Defendant as “very emotional–about
half-crying. He would cry a little bit, you know, stop. Just seem[ed] very emotional.”
Trooper Kelley then entered the truck’s cab. Inside, he found a cooler half-full of
bloody water. He also noticed blood stains covering the inside of the cab, on the glass, the
windows, the dash, and the floor. He recalled that the cab was “disarranged,” with “stuff
thrown around.”
On cross-examination, Trooper Kelley confirmed that, because his observations led
him to believe the Defendant was intoxicated, he arrested the Defendant on suspicion of
driving under the influence (“DUI”) and later charged him with DUI. The Trooper did not
find blood outside the truck anywhere other than where the victim’s body lay. He testified he
shut down the Welcome Center’s exit lane so that no one could leave without being
interviewed. He recalled that no one had noticed that the victim had received a knife-wound
before she was run over. The trooper testified he never received any information that the
victim had placed her bleeding hand inside the cooler. Finally, Trooper Kelley confirmed that
the Defendant appeared distraught the night of the accident and persistently asked to be
allowed to go to Huntsville Maine Hospital to be with the victim.
On redirect examination, Trooper Kelley testified he did not see anything in the
underpinnings of the truck that was sharp or jagged that could have cut the victim. On recross
examination, the trooper acknowledged he did not crawl beneath the truck to examine its
underpinnings. He confirmed that a photograph of the Defendant’s truck showed a protrusion
common to such trucks: a piece of metal behind the rear wheel used to slide the tandems on
the rear axles. Trooper Kelley testified that no blood appeared on the protrusion he identified
in the photograph.
Scott Brandon testified he was a Special Agent for the Criminal Investigation Division
of the Tennessee Highway Patrol at the time of the accident but had since retired. Brandon
arrived at the Welcome Center shortly after midnight, and the victim had already been
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transported to the hospital by the time he arrived. Brandon recalled that the Defendant’s truck
was still sitting in the exit ramp of the Welcome Center, and the Defendant was speaking with
an officer. He testified he explained to the Defendant his rights under Miranda v. Arizona and
questioned him inside the Welcome Center.
Brandon testified the Defendant first described his and the victim’s Chicago to
Jacksonville “run” and then told Brandon he had inadvertently run over the victim when she
got out of the truck at the Welcome Center to chase their dog. The Defendant’s statement was
reduced to writing, and Brandon read the Defendant’s statement into evidence. The
Defendant’s statement set forth the following account of what occurred after he and the victim
left Jacksonville to return to Chicago:
We then went to Blakely, Georgia, and picked up a load of peanuts. We left
there, yesterday, around 11 or 12 a.m. We stopped in Birmingham, Alabama,
and had a couple of beers. We went to part of Dixey, Harley Davidson store.
We bought some t-shirts. And we slept about four hours in the truck. We
argued about getting her son a t-shirt. It was just a little argument. I didn’t
have enough money.
We left Birmingham and stopped at the Welcome Center in Tennessee. We
slept maybe a couple of hours. We did not get out. We went to leave. As we
went to leave, and the dog started playing, I stopped at the drive while they
were going out. Gloria [the victim] opened the door and the dog jumped out.
Gloria went after the dog. I pulled up to get out of the drive, a man came up,
yelling, Stop, stop; I think you have run her over. I went back to Gloria and
she was bleeding bad. I put the dog in the truck and ran back to her. The guy
called 911.
The Defendant did not explain to Brandon why the truck’s cab was covered in blood, and he
did not mention the victim being cut. The Defendant’s hands were not bloody when Brandon
interviewed him, and Brandon did not recall the Defendant’s clothing being bloody. Brandon
recalled seeing a small “nick” on the Defendant’s hand, but the Defendant did not explain
what caused the nick.
On cross-examination, Brandon confirmed that a photograph of the back of the
Defendant’s right hand showed the small “red mark” or “scratch” that he recalled seeing
during the interview.
Investigator Brad Elliot, a Special Agent, Criminal Investigator II with the TBI,
received a call at 3:30 a.m. from District Attorney Mike Bottoms on the night of the accident.
12
General Bottoms requested Investigator Elliot go to the Welcome Center. The investigator
arrived at 4:45 a.m. and requested all traffic through the Welcome Center be stopped and
everyone interviewed for information regarding the incident.
Investigator Elliot saw the Defendant seated on a bench outside the Welcome Center,
so he introduced himself and took the Defendant inside the Welcome Center to an office.
After he Mirandized the Defendant, the Defendant invoked his right to speak with an attorney,
so the investigator ceased the interview and allowed the Defendant to use the restroom and
sit outside. He instructed the Defendant he was not free to leave the scene.
As the Defendant waited inside, Investigator Elliot continued his investigation. He
observed the blood spatters where the victim lay, outside the passenger door, and inside the
truck’s cab. The investigator entered the cab through the driver’s side to retrieve the
Defendant’s medication for him and noticed blood spatter in the cab. As the investigator
entered, he noticed a “large folding knife” lying on the driver’s side corner of the dash. He
testified the knife had a reddish brown blood stain. Having observed the blood splatters
within the cab and the bloody knife, Investigator Elliot determined that a struggle likely
occurred inside the truck’s cab rather than outside. Consequently, he confined his
investigation to inside the truck’s cab and did not request additional agents to search the area
surrounding the truck for discarded weapons.
Investigator Elliot confirmed that as daylight returned he took several photographs,
which were shown to the jury, of the truck after his unit had the truck towed. One photograph
showed the steering wheel and the instrumentation and controls on the dashboard and blood
splattered across the steering wheel. Another photograph showed an open red and white
cooler between the driver and passenger seats. The cooler had blood splatter on its sides and
the top rims of the sides, and inside the cooler was a red liquid and soft drink cans. A final
photograph showed the disarray of the compartment area in the front area of the cab.
The investigator recalled that, the day following the incident, General Bottoms charged
the Defendant with attempted first degree murder, and the Defendant was transported to Giles
County jail in Pulaski, Tennessee. At the jail, Investigator Elliot and Deputy Scott Nations
prepared to serve the charging instrument upon the Defendant in a holding area of the jail.
The investigator, Deputy Nations, and the Defendant gathered at a desk in the holding area,
and the Defendant was read a copy of the warrant and the official charge. At this point, the
Defendant told Investigator Elliot he needed to “tell [him] something.” The investigator
reminded the Defendant that he could not ask the Defendant any questions because the
Defendant had requested an attorney, but the Defendant insisted on speaking with the
investigator in private.
13
Investigator Elliot then escorted the Defendant into a small office near the holding area
and said, “What [is it you] want to tell me[?]” Investigator Elliot described the version of the
accident the Defendant then gave him:
[The Defendant] replied that he could explain all the blood inside the cab of
that truck: That they were riding down the road. That [the victim] had his
knife out playing with it. That she had cut two fingers on her left hand, and
had been waving her hand around inside the cab.
[The Defendant] further told me that they had gotten band-aids out,
applied band-aids to the cuts. That they had arrived at the Welcome Center.
He was not sure when the cutting had occurred.
He had further stated, they arrived at the Welcome Center. They had
slept for approximately two hours at the entrance of the Welcome Center. And
that, as they were proceeding to leave, because they felt like she needed
medical attention for stitches for the cuts, that the dog needed to get out to use
the restroom, so they’re stopped in the exit lane, exiting the Welcome Center.
And that, he was going to get out and go around to let the dog out, and
somehow the dog got out. And after the dog [got] out, he pulled forward to
pull over and park. And as he was doing that, the man ran up and was banging
on his door and told him that he run over somebody. And that, he had stopped
[his] truck, went back to check on [the victim].
And the last statement he made to me was that, he could not have done
what he saw her condition to be in. I did ask [the Defendant] if he wanted to
tell me the truth at that point. He said, I am telling you the truth. And I ended
the conversation at that point, and told [the Defendant] I had other things to
take care of.
The investigator and the Defendant then left the office, the Defendant went back to the
holding area, and the investigator collected the clothes the Defendant wore the night of the
accident. All the clothes were bloody, including the Defendant’s socks. The investigator
understood that the Defendant’s clothes were bloody because he was attending to the victim,
but the investigator did not believe that this would explain why his socks were bloody.
Investigator Elliot identified the victim’s bloody shorts, socks, and tennis shoe as items he
received from the Emergency Medical Services. He also identified a bloody pillow case he
recovered from the scene.
On cross-examination, Investigator Elliot recalled that, when he arrived on the scene,
14
officers had neither stopped traffic from traveling through the Welcome Center nor marked
off the area surrounding the truck with crime scene tape. Investigator Elliot accordingly
stopped traffic and marked off the area surrounding the truck in order to secure the scene.
Also, he seized and secured the two “deadly weapons” used by the Defendant: the knife and
the tractor-trailer. Investigator Elliot said he did not ask Trooper Brennais to make a
complete accident reconstruction map because he was more concerned with what had
occurred inside the truck’s cab than what had occurred outside the truck. He explained that,
because Solomon witnessed the truck run over the victim, he felt he should focus his
investigation on the struggle inside the truck’s cab, which no independent bystander
witnessed.
The investigator estimated that the truck’s driver and passenger seats were two feet
apart. The investigator agreed that if both the passenger and driver were seated upright in
the center of each seat, the passenger and driver could reach out and touch the other. He
agreed that a person could not exit the rear portion of the cab without passing through the
area between the passenger and driver seats.
Investigator Elliot testified he did not become aware of the victim’s lacerated bladder
until after the night in issue. Because he was unaware of this injury, he did not ask the TBI
to search for uric acid, which would leak from a perforated bladder, on the knife or in the
truck’s cab and the area around the truck. The investigator agreed that, because he did not
request these tests, he possessed no proof that the victim’s uric acid leaked onto the knife or
into the truck’s cab or onto the ground surrounding the truck. Investigator Elliot testified he
observed blood on the rear right tire and its mudflap, but he did not closely examine the area
between the tire and the mudflap. As a result, the investigator conceded he could not
conclusively say no blood and tissue were trapped between the tire and the mudflap.
The investigator recalled that the Defendant did not make any statement that indicated
he knew that the victim’s bladder was lacerated. Although the Defendant was arrested in the
early morning hours of the day following the incident, he was not charged with attempted
first degree murder until later that day.
On redirect-examination, Investigator Elliot said he was not aware of a test the TBI
performed to detect uric acid.
Robert E. McFadden, a Special Agent Forensic Scientist with the TBI in Nashville,
testified he and Investigator Charles Hardy examined the truck cab, photographed the cab,
and collected several items from the cab for analysis at the TBI laboratory. One of the items
collected was the Defendant’s knife, which they found on the dashboard of the truck, and
upon which Agent McFadden was unable to find identifiable prints. The agent collected a
15
partial finger print and a partial palm print from the passenger window. He testified he did
not compare these prints with any known individual’s prints.
Linda Littlejohn, a scientist in the Nashville TBI Crime Laboratory, was certified by
the trial court as an expert in area of fiber analysis. She testified she was asked to analyze
the knife collected in this case and the shorts the victim wore when she was run over.
Littlejohn prepared a report of her findings that reflect that she found fibers on the knife and
that she compared these fibers to the shorts’ fibers by mounting fibers from the shorts on a
slide. Physical and microscopic examination of these fibers revealed both fibers to be
constructed of blue and white cotton fibers.
On cross-examination, Littlejohn testified the blue and white fibers “could be” from
denim blue jean material. She explained she could not determine whether the fibers from the
knife were exactly similar to the fibers from the shorts, saying that “there’s not a lot that you
can say about cotton fibers.” She testified that knives commonly have blue and white cotton
fibers because they are commonly carried inside blue jean pockets.
Charles Hardy, a Special Agent of the Serology and DNA Analysis Unit of the
Nashville TBI Crime Laboratory, was certified by the court as an expert in the area of DNA
analysis and comparison process. The agent explained that, in general, he examines physical
evidence for body fluids and genetically compares these body fluids to those of a known
individual by constructing a DNA profile of each sample. Agent Hardy recalled that he
and Agent McFadden examined and inventoried the truck and collected the knife and several
other items from the truck. These items included a piece of mattress from the lower bunk
bed in the truck cab, a cigarette butt from the ashtray, and a stained envelope from above the
driver’s visor. He also collected swab samples from reddish brown stains they observed
inside the truck. These reddish brown stains appeared on the gear shift lever, the outside
surface of the passenger window, the passenger side of the driver’s seat, the driver’s side
windshield, the passenger’s side of the windshield, the passenger side hand-hold at the rear
of the cab, the calendar above the driver’s seat, the blade and handle of the knife on the
dashboard, and the top middle surface of the dashboard. The agent also analyzed the
Defendant’s socks as well as a grocery bag found within a black duffel bag in the truck cab.
Agent Hardy identified a “blood swatch card” he created to profile the Defendant.
Agent Hardy created this card by placing the Defendant’s blood on a piece of paper and
letting it air-dry. This was the standard he used in his DNA analysis. He also collected
finger nail scrapings and oral swabs from the victim.
Agent Hardy described the results of his DNA analysis stating that all of the samples
16
taken from the reddish brown stains both inside the truck and on the rear passenger side of
the trailer contained the victim’s blood. Also, he determined that the victim’s nails scrapings
did not contain another person’s DNA and that the victim’s socks contained her own blood.
Finally, both the blade and the handle of the knife contained the victim’s blood.
On cross-examination, Agent Hardy explained that a different department of the TBI
laboratory is responsible for testing samples for uric acid. He said that he did not receive a
request to test the samples in this case for uric acid but that, if he had, he would have sent the
samples to the appropriate department.
On recross-examination, the agent said he did not see body tissue on the bloody knife
that he collected from the truck, saying that, had he found such tissue, he would have
performed DNA analysis upon it. Upon further direct examination, Agent Hardy testified
that, in his experience, knives used in cuttings do not always contain body tissue.
Michael Tomaso, a Chicago, Illinois, police officer, testified he and his partner,
Christina Pena, were assigned to a “battery-in-progress” in Chicago in April 2006. When
they arrived, a man they later identified as Thomas Edwards approached them and said he
had fought with a man they later identified as the Defendant. Officer Tomaso found the
Defendant and began to interview him, and Officer Pena interviewed Thomas Edwards.
Because the Defendant was highly intoxicated and belligerent, the officers handcuffed him.
Officer Tomaso recalled the Defendant then said, “This is f---ing bullshit because he’s mad
because what I did to his sister.”
Having determined that Edwards was the victim in this altercation with the Defendant,
the officers began to place the Defendant in the back seat of their squad car. The Defendant
continued to grumble about why Edwards was upset, and then the Defendant said, “I wish
I had done it right the first time.”
On cross-examination, Officer Tomaso acknowledged that he did not record the
Defendant’s statements in the report of the battery he prepared the night of the battery. He
explained he did not believe doing so was necessary because he was merely investigating the
battery, not the attempted murder. He emphasized that he had no knowledge of the
circumstances surrounding the Defendant’s case in Tennessee involving the victim. Officer
Tomaso did not testify in the Defendant’s trial on the charge that resulted from his altercation
with Edwards.
Officer Tomaso did not clearly recall speaking with the Defendant’s attorney one
week before trial. According to the officer, his supervisor had instructed him not to speak
with attorneys.
17
Officer Christina Pena, Officer Michael Tomaso’s partner, explained that the address
to which they responded to the battery-in-progress was a bar. She recalled that, after she and
her partner separated the parties, she interviewed Edwards and encouraged him to calm
down. Edwards calmed down and stood peacefully by his vehicle. She confirmed that the
Defendant was highly intoxicated and that she and her partner handcuffed him for their
safety. She recalled they asked the Defendant to sit in the back of their patrol car so they
could ascertain the nature of the dispute. She testified that, when she opened the patrol car
door, the Defendant said, “[T]his is bullshit; I should have did things right the first time.”
Officer Pena placed the Defendant in the vehicle, and then walked around and sat in the
driver’s seat. She and Officer Tomaso conducted an initial field interview of the Defendant.
She explained that, during a field interview, a subject is not in custody but rather is only
detained for a moment while the officers verify the subject has no outstanding warrants.
During this interview, the Defendant told the officers that he had been charged in Tennessee
with attempting to kill Edwards’s sister.
At the conclusion of the trial, the jury convicted the Defendant of attempted first
degree murder, and the trial court sentenced the Defendant to twenty-two years in the
Tennessee Department of Correction.
The Defendant timely filed a petition for a Writ of Error Coram Nobis, stating that
after trial the victim gave several oral and written statements recanting her trial testimony.
The court held a hearing to dispose of this and other post-trial motions. At this hearing, the
victim testified that, at trial, she had falsely testified that the Defendant knocked her
unconscious and stabbed her lower body. She said that her family had encouraged her to lie
because they were angry with the Defendant and that she lied at trial in order to punish the
Defendant. The victim testified that she still loved and missed the Defendant, that he was
a “good person,” and that, because the Defendant “was always there for [her],” she “need[ed]
him so much more, now.” She said that the Defendant only cut her fingers during their
argument on the highway and that he never stabbed her anywhere else on her body. She
insisted that she never lost consciousness and that the Defendant never attacked her while
they were stopped at the rest stop.
The trial court rejected the victim’s recanted testimony, noting that the victim never
actually testified at trial that the Defendant had stabbed her anywhere other than her hand.
Instead, the victim testified only that she remembered being knocked unconscious, struggling
with the Defendant, and noticing blood running down her legs as she got out of the truck.
The trial court explained that the Defendant’s guilty verdict was based on the multiple
wounds to the victim’s pelvic region and the physicians’ testimony that a sharp instrument
caused the lacerations to the victim’s bladder. The trial court also noted that, because the
18
Defendant testified neither at his trial nor the coram nobis hearing, he failed to provide an
alternative version of how the victim sustained her injuries. Given the inconsistencies and
weaknesses in the victim’s new testimony, the trial court explained it was not reasonably
satisfied that the victim’s trial testimony was unreliable and that her recantations were true.
As such, the trial court denied the Defendant’s petition for a Writ of Error Coram Nobis.
II. Analysis
On appeal, the Defendant contends: (1) the evidence was insufficient to support his
conviction; (2) the trial court erred when it admitted statements the Defendant gave to Illinois
police; (3) the trial court erred when it allowed two witnesses to testify although the State had
failed to disclose their existence in accordance with Tennessee Rule of Criminal Procedure
16; and (4) the trial court erred when it denied the Defendant’s petition for a writ of error
coram nobis based on the victim’s recanted testimony.
A. Sufficiency of the Evidence
The Defendant contends the evidence submitted at trial was insufficient to establish
his guilt of attempted first degree murder. Specifically, he contends the evidence does not
support a finding of premeditation, because the record fails to show he procured a weapon,
concealed evidence, or was particularly cruel. Also, he argues that any stabbing that
occurred inside the truck’s cab did not establish “continuous deliberation” and that his efforts
to comfort and aid the victim show he was not “calm” after his actions. The Defendant also
contends that the State’s evidence fails to conform to several evidentiary standards to which
he argues circumstantial evidence must conform in order to support a finding of
premeditation. See State v. Gentry, 881 S.W.2d 1, 4 (Tenn. Crim. App. 1993). Finally, he
argues that his struggle with the victim in the truck’s cab shows he was not free from the
“excitement and passion” a defendant must lack in order to commit attempted first degree
murder. See T.C.A. § 39-13-202(d) (2006). As to the jury’s finding that he ran over the
victim with the intention of killing her, the Defendant argues that his intoxication
incapacitated him from forming the intent to kill the victim.
The State responds that the evidence shows that the Defendant cut the victim’s fingers
and stabbed her, lacerating her bladder, before he intentionally ran over her with his tractor-
trailer. Consequently, the State argues, the evidence shows that the Defendant spent
considerable time contemplating the harm he would cause the victim, thus supporting the
jury’s conclusion that the Defendant premeditated the victim’s death.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
19
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W .3d 389, 392-93 (Tenn. Crim. App. 1999).
In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury see the
witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus
the trial judge and jury are the primary instrumentality of justice to determine the weight and
credibility to be given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a written record in this
Court. Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record, as well as all reasonable inferences which may
be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000). Importantly, the
credibility of the witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact.
Bland, 958 S.W.2d 651 at 659.
In this case, the Defendant was convicted of attempted first degree murder. Tennessee
Code Annotated section 39-12-101(a) states:
A person commits criminal attempt who, acting with the kind of culpability
20
otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an
offense if the circumstances surrounding the conduct were as the person
believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person’s part; or
(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes a substantial step
towards the commission of the offense.
T.C.A. § 39-12-101(a)(1)-(3) (2006).
First degree murder is the intentional and premeditated killing of another. T.C.A. §
39-13-202(a)(1) (2006). An “intentional” killing is one committed by a person “who acts
intentionally with respect . . . to a result of the conduct when it is the person’s conscious
objective or desire to . . . cause the result.” T.C.A. § 39-11-302(a) (2006).
“Premeditation” is defined as “an act done after the exercise of reflection and
judgment” and committed after the accused “was sufficiently free from excitement and
passion as to be capable of premeditation.” T.C.A. § 39-13-202(d) (2006). This is a question
of fact for the jury to determine, and it may be proven by circumstantial evidence, including
evidence of: “the use of a deadly weapon upon an unarmed victim; the particular cruelty of
the killing; declarations by the defendant of an intent to kill; evidence of procurement of a
weapon; preparations before the killing for concealment of the crime; and calmness
immediately after the killing.” Bland, 958 S.W.2d at 660. In general, circumstantial
evidence of premeditation should tend to show planning activity by the Defendant, motive
to cause the victim’s death, and “facts about the nature of the killing from which it may be
inferred that the manner of killing was so particular and exacting that the Defendant must
have intentionally killed according to preconceived design.” See Gentry, 881 S.W.2d at 4-5
(quoting 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986).
In the case under submission, the evidence when viewed in the light most favorable
to the State proved that, while the Defendant and victim argued as they drove from Alabama
to Tennessee, the Defendant swung his knife at the victim, slicing her fingers. The couple
then stopped at the Ardmore Welcome Center to get medical attention for the victim’s injury
21
to her hand. After the Defendant pulled the tractor-trailer up to the curb in front of the
Welcome Center and the victim turned around to retrieve medication from the back of the
truck’s cab, he attacked the victim from behind, striking her in the back of the head. The
victim fell on a bed in the rear of the cab and began to go in and out of consciousness. She
and the Defendant struggled in the back of the cab until the Defendant relented and sat back
down in the driver’s seat.
After the Defendant returned to the driver’s seat, the victim gathered her things and
got out of the truck. When she got out, she realized blood was rushing down her legs and
pooling into her socks and shoes. Medical examination later revealed that the victim’s
bladder was lacerated by a knife-like object and that her pelvic region bore several slice
marks. Also, the interior of the truck’s cab was covered in blood, and blood had spilled into
a cooler inside the truck. Both the nature of the victim’s wounds and the large amount of
blood inside the truck indicate that the Defendant had stabbed the victim several times as
they struggled in the back of the cab.
Having seen a man standing near the rear of the truck, the victim began to walk
toward the man to ask him to help her get medical attention. As she walked alongside the
truck, someone instructed the Defendant to move the truck from where it was parked in front
of the Welcome Center. The truck began to move, and the trailer knocked the victim to the
ground and into the path of its passenger-side rear tire. The truck continued moving and ran
over the victim’s body. Although her initial prognosis was grim, the victim survived her
injuries, which included disembowelment, a crushed pelvis, a lacerated bladder, and multiple
cuts to her pelvic region.
First, we conclude that the evidence establishes that the Defendant stabbed and cut
the victim while they were parked in front of the Welcome Center. The stab wounds inflicted
by the Defendant upon the victim’s abdominal and pelvic region were severe enough to be
life-threatening. This conduct alone supports the jury’s finding that the Defendant acted with
the intention to cause the victim’s death. This act also supports the jury’s inference that the
Defendant acted with premeditation when he later drove his tractor-trailer over her body. As
the Defendant argues, the record may lack proof that the Defendant procured a weapon or
concealed evidence. The record does include, however, circumstantial proof that the
Defendant planned to kill the victim and had a motive to kill the victim in the particularly
cruel manner of running over her body: The Defendant stabbed the victim, who was
unarmed, several times on her hand. The Defendant then refused to stop to get medical
attention for the victim’s hand, because he did not want her to report his behavior. Although
the Defendant ultimately stopped ostensibly to get medical help, his fear of being discovered
colors his later act of running over the victim. After he stopped the truck, the Defendant
attacked the victim, stabbing her in her abdominal and pelvic region. The record supports
22
the reasonable inference that, after having severely injured the victim, the Defendant allowed
her to get out of the truck so that he could mask her stab wounds by “accidentally” running
over her. As the victim walked toward the back of the truck, the Defendant, a seasoned
commercial truck driver, drove his truck so that it knocked the victim to the ground and then
rolled over her body. The Defendant then displayed a somewhat calm demeanor by
responding in disbelief rather than alarm when Solomon informed him he had run over the
victim.
The Defendant’s argument that his altercation with the victim caused him to be
excited and passionate in a way that prevented him from acting with premeditation is not
supported by the victim’s testimony that the Defendant took his driver’s seat after they
struggled and sat calmly while she got out of the vehicle. The record sufficiently supports
the jury’s determination that the Defendant exercised reflection and judgment before running
over the victim and that no “excitement or passion” prompted him to run over the victim.
See T.C.A. § 39-13-202(d).
Also, we conclude the evidence supports the jury’s inference that the Defendant
intentionally ran over the victim. As we discussed above, the Defendant was a seasoned
truck driver, his assertion that he accidentally ran over the victim strikes this Court as
disingenuous. Further, the statement to Illinois police that he “should have done it right the
first time” is a bare acknowledgment that he intended to kill the victim rather than only
accidentally run over the victim. Finally, the record does not demonstrate that the
Defendant’s intoxication was serious enough to incapacitate him from forming the intent to
kill the victim. See Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979) (“Proof
of intoxication alone is not a defense to a charge of committing a specific intent crime . . .
there must be evidence that the intoxication deprived the accused of the mental capacity to
form specific intent.”). As the victim testified, the Defendant navigated his tractor-trailer on
the highway without difficulty and no responding officers recalled that the Defendant was
highly intoxicated. As such, we conclude the evidence supports the jury’s determination that
the Defendant intended to kill the victim when he ran over her with his truck.
In summary, a rational jury could conclude that the Defendant premeditated killing
the victim, that he intended to kill the victim when he drove the truck forward, and that he
believed running over the victim would cause the victim’s death without further conduct on
his part. Therefore, the evidence was sufficient for a rational juror to conclude beyond a
reasonable doubt that the Defendant was guilty of attempted first degree murder. The
Defendant is not entitled to relief on this issue.
B. Admissibility of the Defendant’s Statements to Chicago Police Officers
23
The Defendant contends the trial court violated his constitutional rights to counsel and
against involuntary self-incrimination when it admitted the statements the Defendant gave
to Illinois police officers. He argues he gave the incriminating statements while he was in
police custody in response to police interrogation, which was initiated without
Miranda warnings. The State concedes that the Defendant was in police custody at the time
of the statements, but it argues that he made his statements spontaneously and not in
response to any question posed by Illinois police officers.
The statements to which the Defendant objects occurred in the course of Illinois police
officers’ response to a battery-in-progress involving the Defendant and David Edwards, the
victim’s brother. Soon after the officers arrived, they determined that the Defendant should
be handcuffed because he was intoxicated and belligerent. As Officer Tomaso was
handcuffing the Defendant, the Defendant said, “This is f---ing bullshit because he’s mad
because what I did to his sister.” The officers then began to place the Defendant in the back
of their squad car in order to question him about his altercation with Edwards. While he was
being placed in the car, the Defendant said, “I wish I had done it right the first time.” The
officers then began to interview the Defendant about his fight with Edwards, and he informed
them he had been charged in Tennessee with attempting to murder Edwards’s sister. Police
were unaware of this pending charge at the time the Defendant made statements regarding
the victim.
In disposing of the Defendant’s motion to suppress his statements to Illinois police,
the trial court found first that, because the officers handcuffed the Defendant, the Defendant
was in custody and, thus, his Miranda rights had attached when he made his statements. The
trial court went on to find, however, that his statements were not taken in violation of
Miranda because they were not given in response to interrogation within the meaning of
Miranda. The trial court explained that Officers Pena and Tomosa were not Tennessee
officials and had no independent knowledge of the charges in this case. Thus, the officers
could not have intended to question the Defendant about this case when they asked the
Defendant to explain why he was fighting with Edwards. As a consequence, the court
concluded, admission of the Defendant’s statements would not violate the Defendant’s rights
to counsel and against involuntary self-incrimination.
In Tennessee, when a defendant brings a claim that his statement should be suppressed
due to its not being knowingly and voluntarily given, this Court reviews the facts while
giving great deference to the suppression hearing judge. State v. Daniel, 12 S.W.3d 420, 423
(Tenn. 2000). The application of law to fact is reviewed de novo. State v. Bridges, 963
S.W.2d 487 (Tenn. 1997). The findings of the trial court will be upheld unless the evidence
preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
24
The Fifth Amendment to the United States Constitution provides in part that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Similarly, article I, section 9 of the Tennessee Constitution states that “in
all criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. The United States Supreme Court has held that the
protections afforded by the Fifth Amendment require that precautions be taken before
statements obtained through custodial interrogation are allowed as evidence against an
accused. Miranda v. Arizona, 384 U.S. 436, 479 (1964). Generally, when statements made
by an accused are the product of a custodial interrogation by law enforcement officers, the
statements may not be admitted into evidence unless the accused is:
Warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.
Id. Only when the suspect is informed of his rights via the Miranda warnings may a suspect
be deemed to knowingly and intelligently waive the right to remain silent and the right to an
attorney. Id. Moreover, any statement obtained after a waiver of this right must be voluntary
and not be extracted by “any sort of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper influence.” Bram v. United
States, 168 U.S. 532, 542-43 (1987).
The protections provided under Miranda do not apply in every instance where a police
officer questions a suspect; rather, these protections only apply “when the defendant is in
custody and is subjected to questioning or its functional equivalent.” Walton, 41 S.W.3d at
82. Miranda warnings are required only when a person is subject to custodial interrogation
by law enforcement. “Custodial” means that the subject of questioning is in “custody or
otherwise deprived of his freedom by the authorities in any significant way.” Miranda, 384
U.S. at 479. “Interrogation” has been interpreted to refer to questions that law enforcement
officers should know are reasonably likely to elicit an incriminating response. Rhode Island
v. Innis, 446 U.S. 291, 301 (1980). In order for Miranda to apply, the suspect’s statements
must be in response to interrogation by law enforcement personnel, or the suspect must know
that he is being interrogated by an agent of the State. State v. Brown, 664 S.W.2d 318, 321
(Tenn. Crim. App. 1983); see Illinois v. Perkins, 496 U.S. 292, 296-97 (1990). “Absent
either one of these prerequisites, the requirements of Miranda are not implicated.” Id. For
instance, on-the-scene questioning does not require Miranda warnings. Miranda, 384 U.S.
25at 477; State v. Goss, 995 S.W.2d 617, 629 (Tenn. Crim. App.1998).1
We agree with the trial court that the Defendant’s statements were not admitted in
violation of his rights to counsel and against involuntary self-incrimination. We agree that,
at the time of the Defendant’s statements, he was in custody. The Defendant was handcuffed
and then placed in the backseat of a police cruiser in the course of making the statements at
issue. Thus, the Defendant was “deprived of his freedom” by Illinois police. See Miranda,
384 U.S. at 479. Given this, we conclude the Defendant was in custody when he made the
statements at issue.
Fatal to the Defendant’s objection, however, is the fact that he was not being
interrogated when he made the statements introduced at trial. Officers Tomosa and Pena
were Illinois police officers investigating a battery-in-progress outside a Chicago bar. These
officers knew nothing about the Tennessee charge against the Defendant. As such, they
could not have intended to elicit incriminating responses about this charge when they asked
the Defendant why he and Edwards had fought. See Brown, 664 S.W.2d at 321. The police
officers’ inquiries were “on-the-scene questioning” limited to the altercation between the
Defendant and Edwards. Further, the Defendant made several of his statements
spontaneously, not in response to any question posed by the officers. None of the
Defendant’s statements to Illinois police were given in response to interrogation within the
meaning of Miranda. Their admission, therefore, did not violate the Defendant’s rights to
counsel and against self-incrimination. He is not entitled to relief on this issue.
C. State Compliance with Tennessee Rule of Criminal Procedure 16
The Defendant contends that the trial court erred when it allowed Officers Pena and
Tomosa to testify about the Defendant’s statements in Illinois. The Defendant argues first
that, because the officers are not listed on the Defendant’s indictment, their testimony
1
In Miranda, the Supreme Court stated:
When an individual is in custody on probable cause, the police may, of
course, seek out evidence in the field to be used at trial against him. Such
investigation may include inquiry of persons not under restraint. General
on-the-scene questioning as to facts surrounding a crime or other general
questioning of citizens in the fact-finding process is not affected by our
holding. It is an act of responsible citizenship for individuals to give
whatever information they may have to aid in law enforcement. In such
situations the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present.
Id. at 477-78.
26
violates Tennessee Code Annotated section 40-17-106, which instructs the State to list
witnesses that will testify at trial on the indictment. To this, the State responds that this
section is only directory and, as such, does not require exclusion of the testimony of omitted
witnesses, citing State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992).
Next, the Defendant argues that the trial court erred when it allowed the State to
supplement its witness list with the officers’ names one week before trial, which violated
Tennessee Rule of Criminal Procedure 16(a)(1)(A), the state disclosure rule. He argues this
late addition prevented him from traveling to Chicago to interview the officers before they
testified at trial and gave him insufficient time to prepare to raise the Miranda issues
involved in the officers’ testimony. The State responds that it complied in good faith with
Rule 16’s disclosure rule because it disclosed the officers’ testimony as soon as it had
contact information. Furthermore, the State argues, the Defendant fails to show bad faith,
undue hardship, or prejudice from the late disclosure. Finally, the State argues that, as Rule
16 does not authorize disclosure of the address of a State witness, the Defendant’s inability
to contact the officers has no bearing on his Rule 16 claim.
In addressing the Defendant’s claim that the officers’ testimony violated Tennessee
Code Annotated section 40-17-106, we note that our Supreme Court has observed that it is
“well settled” that this section is “merely directory,” not mandatory. State v. Dellinger, 79
S.W.3d 458, 489 (Tenn. 2002). As such, section 40-17-106 does not necessarily disqualify
from testifying a witness whose name does not appear on the indictment. Id.; State v. Harris,
839 S.W.2d 54, 69 (Tenn. 1992). Rather, the purpose of this section is to avoid surprising
the defendant, thereby providing the defendant with an adequate basis upon which to prepare
a defense. In Harris, our Supreme Court held that section 40-17-106 did not bar testimony
from a witness disclosed to the defense only four days before trial because the State notified
the defense as soon as it became aware of the witness and because defense counsel
interviewed the witness before trial. Id. In this case, the State did not intentionally omit
Officers Pena and Tomaso from the indictment; rather, the State disclosed their identities and
their potential testimony to the defendant soon after the State itself became aware of their
potential testimony. Because the State did not act in bad faith when it failed to list the
officers’ names on the Defendant’s indictment, we conclude that the State did not violate
Tennessee Code Annotated section 40-17-106.
The Defendant’s second objection is that the State’s supplementation of its witness
list was improper because the State did not comply with the disclosure requirements of Rule
16. Tennessee Rule of Criminal Procedure 16 describes the procedure for the State’s
disclosure of evidence:
(a) Disclosure of Evidence by the State.
27
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s request,
the state shall disclose to the defendant the substance of any of
the defendant’s oral statements made before or after arrest in
response to interrogation by any person the defendant knew was
a law-enforcement officer if the state intends to offer the
statement in evidence at the trial;
....
(2) Information not Subject to Disclosure. Except as provided in paragraphs
(A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the
discovery or inspection of reports, memoranda, or other internal state
documents made by the district attorney general or other state agents or law
enforcement officers in connection with investigating or prosecuting the case.
Nor does this rule authorize discovery of statements made by state witnesses
or prospective state witnesses.
Tenn. R. Crim. P. 16(a).
To enforce this rule, Rule 16(d)(2) provides that if there has been noncompliance, the
trial court may order the offending party to permit the discovery or inspection, grant a
continuance, prohibit the introduction of the evidence not disclosed or enter such other order
as the court deems just under the circumstances. See State v. Leon Goins, No.
W1999-01681-CCA-R3-CD, 1999 WL 1531111, at *2 (Tenn. Crim. App., at Jackson, Dec.
27, 1999), perm. app. denied (Tenn. July 17, 2000). Whether a defendant has been
prejudiced by the State's failure to disclose information is a significant factor in determining
an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The
Defendant bears the burden of showing “the degree to which the impediments to discovery
hindered trial preparation and defense at trial.” State v. Brown, 836 S.W.2d 557, 560 (Tenn.
1993). The determination of whether to allow the witness to testify is left to the sound
discretion of the trial judge, which is exercised upon examination of the circumstances
presented in that particular case. State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim.
App. 1984) (citing McBee v. State, 372 S.W.2d 173 (Tenn. 1963)). “Thus, it is clear that the
court has wide discretion to fashion a remedy that is appropriate for the circumstances of
each case and the sanction must fit the circumstances of that case.” Id. (citations omitted);
see State v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984).
The Defendant moved before trial for either a continuance or exclusion of the officers’
28
testimony based on the State’s non-compliance with Rule 16. During the hearing on that
motion, the State and the defense counsel described the chronology of the State’s discovery
and disclosure of the officers’ statements: The Illinois officers observed the Defendant’s
statements in April 2006. In mid-September, the State became aware that the Defendant
made statements about this case during his Illinois arrest. On September 19, 2006, the State
provided a Witness List and Discovery of Disclosures to the defense. Although this list did
not include Officers Pena and Tomaso, it included a note that the Defendant had given
statements to arresting officers when he was detained in Illinois. After furnishing the witness
list, the State began to contact Illinois officials in order to identify and locate the officers.
On October 23, 2006, the State obtained the officers’ names and badge numbers and
provided these to defense counsel, and began to search for the officers’ contact information.
On October 30, 2006, the State obtained this contact information and furnished it to defense
counsel. Trial began on November 6, 2006.
The trial court denied the Defendant’s request to exclude the officers’ testimony and
for a continuance. It found that the State timely communicated and disclosed information
to defense counsel. The trial court further found that the Defendant suffered no prejudice
from receiving the officers’ names and contact information only one week before trial.
Although it denied the Defendant’s motion, the trial court clearly communicated its
willingness to grant a continuance in the event the Defendant came upon new information
about the Defendant’s statements and requested more time to investigate this information.
First, we note that Rule 16's application to the disclosure of the statements at issue is
not altogether clear. As reproduced above, the language of Rule 16(a)(1)(A) requires
disclosure of only defendant statements “made in response to interrogation.” As we have
discussed, the Defendant did not make his statements in response to police interrogation.
Rule 16 did not obligate the State to disclose the statement at issue before trial. To be
thorough, however, we will assume Rule 16(a)(1)(A) applies to the statements at issue.
Rule 16 requires the State to disclose the substance of a defendant’s statements before
trial, if defense counsel requests such disclosure. Here, the defense requested the State to
disclose its witnesses and information it had about the Defendant’s statements, and the State
complied. It provided a list of witnesses, which included a note that Illinois police may have
observed the Defendant make incriminating statements about this case. As the State gathered
more information about what these officers observed, it communicated such information to
the Defendant. The State gave defense counsel the officers’ names and badge numbers the
same day it obtained them, and it disclosed the officers’ private cell phone numbers to the
defense on October 30, also the same day it obtained the phone numbers. The State promptly
informed defense counsel of the officers’ potential testimony and, later, of the officers’
contact information. The State, therefore, did not in bad faith provide the defense with the
29
officers’ contact information only one week before trial; instead, the State in good faith
provided defense counsel with information about the officers as it received the information.
Further, the Defendant fails to demonstrate how his late receipt of the officers’ contact
information “hindered trial preparation and defense at trial.” See Brown, 836 S.W.2d at 560.
Although defense counsel stated that, had he been given more advance notice, he would have
traveled to Chicago to interview the officers, Officer Tomaso testified his supervisor
instructed him not to speak about investigations with attorneys. Therefore, the extent to
which a trip to Chicago would have produced valuable information is unclear. Further, the
trial court said it would allow a continuance if at any point during trial defense counsel
requested time to obtain specific evidence in connection to the officers’ testimony. Because
defense counsel never made such a request, defense counsel does not appear to have come
across any new evidence with which to impeach the officers’ accounts of his client’s
statements. As such, we do not perceive the timing of the disclosure of the officers’ contact
information to have deprived the Defendant of the ability to thoroughly prepare for the
officers’ testimony. Smith, 926 S.W.2d at 270. Because the Defendant has failed to
demonstrate either bad faith non-compliance with Rule 16 or prejudice, we conclude that the
trial court properly allowed the officers to testify. Tenn. R. Crim. P. 16(a)(1)(A); Brown 836
S.W.2d at 560. The Defendant is not entitled to relief on this issue.
D. Writ of Error Coram Nobis
The Defendant contends the trial court erred when it denied his motion for a writ of
error coram nobis based on the victim’s recantation of her trial testimony. He argues that the
evidence preponderates against the trial court’s finding that the victim’s new testimony was
unreliable. The Defendant argues the record at trial and at the coram nobis hearing
established that the victim’s anger with the Defendant motivated her trial testimony and that
this intent to falsely implicate the Defendant explains her convenient failure to recall what
happened between the time when she supposedly lost consciousness and the time when she
left the truck. The Defendant further argues that the victim’s desire to falsely implicate the
Defendant also explains why no medical record referenced or testifying medical expert
observed an injury to the victim’s head consistent the victim’s testimony that she was struck
from behind.
In response to the Defendant’s arguments, the State largely adopts the coram nobis
court’s reasoning, arguing that the victim’s trial testimony did not actually contain an
assertion as to the cause of her pelvic and abdominal injuries and that evidence independent
of the victim’s trial testimony supported the Defendant’s guilty verdict.
A proceeding in the nature of a writ of error coram nobis is available to convicted
30
defendants in criminal cases. T.C.A.. § 40-26-105(a) (2006). Whether to grant or deny a
petition for writ of error coram nobis on its merits rests within the sound discretion of the
trial court. State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007). It is well-established
that the writ of error coram nobis “is an extraordinary procedural remedy . . . [that] fills only
a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999).
In fact, newly discovered recanted trial testimony may serve as the basis for a new trial only
where: “(1) the trial court is reasonably well satisfied that the testimony given by the material
witness was false and the new testimony is true; (2) the defendant was reasonably diligent
in discovering the new evidence, or was surprised by the false testimony, or was unable to
know of the falsity of the testimony until after the trial; and (3) the jury might have reached
a different conclusion had the truth been told.” State v. Ratliff, 71 S.W.3d 291, 298 (Tenn.
Crim. App. 2001) (citing Mixon, 983 S.W.2d at 673 n.17); see T.C.A. § 40-26-105(b).
In the case at hand, we agree with the trial court that the Defendant did not meet his
burden of establishing his eligibility for a new trial under Ratliff and Mixon. In essence, the
Defendant has failed to establish the unreliability of the victim’s trial testimony and, in turn,
the veracity of the victim’s testimony at the coram nobis hearing. We agree with the trial
court that the victim’s testimony at the coram nobis hearing that she did not recall the
Defendant stabbing her while they struggled in the back of the cab does not actually conflict
with her trial testimony that she could not recall what happened in the back of the cab
because she lost consciousness. Because the victim never claimed to remember that the
Defendant stabbed her and because the victim does not claim to have lied about losing
consciousness, her most recent testimony is not inconsistent with her trial testimony. As
such, the record does not preponderate against the coram nobis court’s finding that “the
testimony given by the material witness was false and the new testimony is true.” See Ratliff,
71 S.W.3d at 298.
Further, the Defendant fails to establish that the jury might have reached a different
conclusion “had the truth been told.” Id. At trial, several physicians that attended to the
victim testified that the lacerations to her bladder and abdominal region were straight line
lacerations, likely caused by a sharp, penetrating object such as a knife. Also, the victim
testified that blood was running down her legs and into her shoes when she got out of the
truck. The victim’s bloody shoes were introduced at trial to support this detail of the victim’s
story. The trial record, therefore, contains adequate evidence of the cause of the victim’s
abdominal and pelvic injuries to support the jury’s finding that the Defendant stabbed the
victim while they struggled in the cab. The record does not preponderate against the trial
court’s finding that the jury would not have reached a different result even assuming the
veracity of the victim’s new testimony. Because the Defendant fails to establish both the
veracity of the victim’s new testimony and the likelihood of a different verdict given this
testimony, we conclude the trial court did not abuse its discretion when it denied the
31
Defendant’s coram nobis petition. He is not entitled to relief on this issue.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that the
evidence is sufficient to support the Defendant’s conviction; that the trial court properly
allowed Illinois police officers to testify about the Defendant’s statements to them; and that
the trial court properly denied the Defendant’s motion for a Writ of Error Coram Nobis. As
such, we affirm the judgments of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
32