State v. Derrick Sayles

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1999 SESSION
FILED
August 19, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9805-CR-00142
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
DERRICK SAYLES, ) JUDGE
)
Appellant. ) (Second Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY S. GLATSTEIN MICHAEL E. MOORE
200 Jefferson, Suite 1313 Solicitor General
Memphis, TN 38103
(On Appeal) PETER M. COUGHLAN
Asst. Attorney General
EDWIN C. LENOW John Sevier Bldg.
100 North Main Bldg. 425 Fifth Ave., North
Memphis, TN 38103 Nashville, TN 37243-0493
(At Trial)
WILLIAM L. GIBBONS
District Attorney General
JAMES A. WAX, JR.
-and-
PATIENCE R. BRANHAM
Asst. District Attorneys General
201 Poplar Ave., Ste. 301
Memphis, TN 38103-1947
OPINION FILED:____________________
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
A jury found the defendant guilty of the second degree murder of Marvin
Randolph. The defendant now appeals, raising the following issues for our review:
I. whether the evidence is sufficient to support the defendant’s
conviction;
II. whether the trial court abused its discretion by refusing to
allow defense counsel to cross-examine a state witness regarding
possible promises made in exchange for his testimony;
III. whether the trial court abused its discretion in allowing
extensive juror questioning of a state witness;
IV. whether the state committed plain error by asking the
defendant on cross-examination whether he had ever “borrowed”
someone’s car without permission; and
V. whether cumulative error requires a new trial.
Finding error in the refusal to allow defense counsel to develop impeachment proof
of the state’s key witness, we REVERSE and REMAND for a new trial.
FACTS
At trial, Antonio Callicutt testified that on the afternoon of October 16, 1996,
while he was sitting on the front porch of his residence, he saw the victim, Martin
Randolph, in his car at a stop sign on the corner of his street. According to Callicutt,
he saw the defendant, also known as “Baba,” ride a bicycle to the victim’s car, yell
“Payback, mother f - - - - -,” and shoot him repeatedly. Callicutt testified that the
defendant was accompanied by other individuals, that “[t]hey were shooting the gun,”
and that when the victim’s car began to drive away, “[t]hey kept shooting” and then
left the scene in a Suburban driven by Corey Ragland. When asked to clarify who
“they” were and who shot at the victim, Callicutt explained that while the defendant
was accompanied by “some more boys,” the defendant was the only one shooting.
Callicutt testified that after the shooting, he followed the victim’s car to a local Piggly
Wiggly grocery store, where it crashed into a parked car. Callicutt admitted he was
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currently in jail awaiting an indictment on an aggravated robbery charge, but he
denied being promised anything in exchange for his testimony.
On cross-examination, Callicutt denied being with Rhonda Nichols, a family
friend, on the day of the shooting. He admitted he had a prior conviction for
solicitation to commit a felony. The defense attorney asked him several questions
regarding his prior inconsistent testimony at a preliminary hearing. The defense
attorney based his phrasing of Callicutt’s prior testimony on his own handwritten
notes from the audio tape of the preliminary hearing. Callicutt flatly denied making
almost all of the statements attributed to him by defense counsel.
The dairy manager at the local Piggly Wiggly store testified that he was eating
his lunch in his car in the parking lot when the victim’s car smashed into his car. The
dairy manager testified he asked the victim who shot him, and the victim replied,
“Baba did it.” The victim later bled to death from a gunshot to his leg that severed an
artery. An investigating officer testified that after the incident, the defendant admitted
his nickname was “Baba.”
After the state rested, Rhonda Nichols, a close friend of Callicutt’s family,
testified that on the day of the shooting, Callicutt was not at his house, but rather was
watching television with her and members of his family at his aunt’s nearby house.
She testified that when they heard the shots, they went outside to see what
happened, but the street was empty of people and cars.
The security guard at Piggly Wiggly testified that after the victim crashed into
the parking lot, he asked him who shot him, and the victim replied, “Ray-Ray.” He
testified the victim might have said “Baba,” but he heard “Ray-Ray.”
The defendant testified on his behalf, denying that he shot the victim, who he
claimed not to have known. According to the defendant, he spent the afternoon in
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question at home and at the Boy’s Club. He admitted that one of his nicknames was
“Baba.”
SUFFICIENCY OF THE EVIDENCE
The defendant complains that the evidence is insufficient to support his
conviction. As support for his argument, the defendant complains that Callicutt’s
testimony is internally inconsistent, in that he first testified “they” shot the victim, but
then later testified that only the defendant shot the victim. As the state concedes, the
record reveals that Callicutt was a rather inarticulate witness, which explains why he
was often prompted by the district attorney, the defense attorney, and even the jury
to explain his answers.
The defendant also asserts that the record shows Callicutt’s trial testimony
was inconsistent with his prior testimony at a preliminary hearing. The record reveals
that the defense attorney asked Callicutt several times about the substance of his
preliminary hearing testimony. Defense counsel did not have a written transcript of
the preliminary hearing testimony, so he relied upon the notes he took while listening
to the preliminary hearing audio tape to phrase what he represented Callicutt’s prior
testimony was. For example, the defense attorney asked,
Okay. And let me ask you please, sir, if you were asked these
questions and did you give these answers:
“Question: Who was driving your car? Corey
was...” -- and you gave this answer. “Corey was in my
car on the next street.”
Each time the defense attorney questioned Callicutt in this way, however, Callicutt
denied having testified the way the defense attorney represented he had. Questions
by counsel are not evidence.
The defendant also notes that Callicutt’s testimony is directly contradicted by
Ms. Nichol’s testimony that Callicutt was with her at the time of the shooting and did
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not witness anything. Because the jury, not this Court, decides questions concerning
witnesses’ credibility, the weight and value given to evidence, and all factual issues,
the defendant’s sufficiency challenge will not succeed merely because a state
witness’s testimony conflicts with a defense witness’s testimony. See State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
The gist of the defendant’s argument is that his conviction rests entirely upon
the testimony of Callicutt whose testimony is both incredible and contradicted. The
record does not support the defendant’s claim that Callicutt’s testimony is the only
evidence against him. To the contrary, the record shows that shortly after the victim
was shot, he told the Piggly Wiggly dairy manager that “Baba” shot him. There is
ample evidence, including the defendant’s own admission at trial, that the defendant
is “Baba.” Granted, the evidence presented by the defendant squarely contradicted
much of the state’s evidence. It is the jury’s duty, however, to sort through those
contradictions and assign credibility, and here, the jury opted to accredit the state’s
witnesses. Because a review of the evidence in the light most favorable to the state
reveals that a rational trier of fact could have found beyond a reasonable doubt the
essential elements of second degree murder, the defendant’s sufficiency challenge
must fail. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
ATTACK ON CALLICUTT’S CREDIBILITY
The defendant next challenges the trial court’s decision not to allow him
to cross-examine the prosecutor and/or Callicutt about whether promises were made
in exchange for Callicutt’s testimony against the defendant. The record shows that,
after jury selection but before the state presented any evidence, the bailiff reported
to the trial judge that Callicutt was refusing to enter the courtroom because he was
scared. With the jury absent from the courtroom, the trial judge ordered Callicutt to
enter the courtroom, and he eventually complied. Callicutt testified under oath that
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earlier that morning, the defendant threatened him and told him not to testify.
Callicutt also testified that two individuals visited his girlfriend and child at his house
and threatened that “something” would happen if Callicutt testified.
Callicutt insisted he did not want to “be involved” or testify in this case. The
trial court asked Callicutt if he would still be scared to testify if the court reduced his
bond in order to limit his exposure to the defendant in jail. Callicutt replied that he
would still be exposed to the defendant if he was indicted and the defendant was
convicted. He continued to adamantly insist that out of his and his family’s best
interests, he did not want to be involved in this case, even if that meant he would be
charged with perjury.
Following a recess, a bench conference was held during which the parties
discussed Callicutt’s testimony. The defense attorney related that the defendant
denied threatening or even being near Callicutt. One of the prosecuting attorneys
reported that she needed to talk to Callicutt to ask him for a phone number where his
girlfriend could be reached. The trial judge called another recess, suggesting that the
prosecuting attorney might send an investigator with a subpoena to talk to Callicutt’s
girlfriend.
After the second recess, the state proceeded with its first witness, the victim’s
mother, whose testimony was relatively short. Immediately following her testimony,
Callicutt was called to testify before the jury, where he proceeded to testify against
the defendant without a hint of hesitation or reluctance. The record does not explain
Callicutt’s change of heart regarding his testimony. Callicutt testified before the jury
that he was not promised anything in exchange for his testimony.
Following Callicutt’s testimony, the jury exited the courtroom for a recess.
However, prior to Callicutt leaving the courtroom and prior to any recess by the court,
one of the prosecuting attorneys addressed the trial court. He stated, “we feel that
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[Callicutt] testified truthfully and in light of the fact that there have been some threats
allegedly made . . . and I have reviewed the case against him, the state would
recommend a $1,000 bail for [Callicutt].” The prosecuting attorney stated that
“[Callicutt’s] file just appeared on my desk,” having been given to him by an assistant,
“not knowing at any time the involvement that Mr. Callicutt had with this case.” The
prosecuting attorney stated he believed Callicutt’s case would be submitted to the
grand jury as simple robbery, not aggravated robbery. Although noting Callicutt had
a prior felony conviction and numerous misdemeanors, he stated Callicutt testified
truthfully and recommended a $1,000 bond.
The trial judge accepted the state’s recommendation, reducing Callicutt’s bond
accordingly, and stated it was doing so because of the threats lodged against him
and his family so that “at least, we can keep this defendant and this witness
separated as long as possible.” The following then transpired:
[DEFENSE ATTORNEY]: Will that be told to the jury?
THE COURT: No. They don’t need to know that.
[DEFENSE ATTORNEY]: Because they had said that
there was nothing -- that he has nothing and now they’re
making --
[PROSECUTING ATTORNEY]: He was not promised
anything. I stated as an officer of the court he was not
promised anything for that.
THE COURT: No. He wasn’t promised anything. I’m
doing this based on threats. In fact, I may recommend
grand jury proceedings that may go against your client.
I’ve got it under advisement. So I’m doing this based on
threats to him. He’s testified under oath as well as
there’s allegations that his family members have been
threatened to keep him from testifying. All right. That’s
the end of that. It doesn’t go before the jury.
[DEFENSE ATTORNEY]: Could we make a tender of
proof so that will be in this trial record.
THE COURT: Proof of what?
[DEFENSE ATTORNEY]: To have [the prosecuting
attorney] testify that he’s made a recommendation so the
proof -- in case the case goes up that --
THE COURT: What do you mean?
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[DEFENSE ATTORNEY]: The jury has been told that
initially he had no deals and now they’re coming in after
he’s testified and recommending a $1,000 bond.
[PROSECUTING ATTORNEY]: He had no deal. I mean,
I don’t know how to say that any clearer.
THE COURT: He’s already testified now.
[DEFENSE ATTORNEY]: Yes, sir.
THE COURT: And the court is doing this based on
threats to him, too. I’m taking that into consideration
more than anything else. In fact, that’s about the only
thing about reducing the bond to that amount. It may
should be [sic] reduced some anyway if it’s not going to
proceed on aggravated robbery. But the reason I’m
considering a $1,000.00 [bond] is because of these
threats and his demeanor, scared to come in the court.
We had to force him in the court because of these
threats. And he finally came in. So that’s the court’s
action. All right.
An accused has the right to explore on cross-examination any promises of
leniency to the prosecution witness in order to show motive for testifying falsely for
the state. State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994); State v. Norris, 684
S.W.2d 650, 654 (Tenn. Crim. App. 1984). Undue restriction of this right may violate
a defendant’s right to confrontation. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106
S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Evidence of any understanding or agreement
relating to the future prosecution of a state witness is certainly relevant to credibility,
and the jury is entitled to know of it. Giglio v. United States, 405 U.S. 150, 154-55,
92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Specifically, the refusal to allow defense
counsel an opportunity to cross-examine a prosecution witness about an agreement
with the state as to future prosecution violates the Confrontation Clause of the Sixth
Amendment. Delaware v. Van Arsdall, 475 U.S. at 679.
In the case at bar defense counsel on cross-examination of Callicutt did not
ask him about his change of heart or a possible agreement with the state. Nor did
he ask the trial court to be allowed to recall Callicutt after the bond recommendation
was made. This may have been a tactical decision as it might have led to testimony
concerning alleged threats by the defendant. However, this does not end our inquiry.
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When Callicutt was first called into the courtroom, he adamantly and
continually insisted that he would not testify, even if it led to another criminal charge
against him. The trial court mentioned the possibility of a reduced bond. One of the
prosecuting attorneys stated she needed to talk to Callicutt concerning the alleged
threat to his girlfriend. Then, when called to testify before the jury, Callicutt obviously
had a change of heart and testified without any hesitation whatever. Immediately
after Callicutt’s testimony, the state recommended the reduced $1,000 bond.
The defendant was clearly entitled to explore what, if anything, the prosecuting
attorney told Callicutt prior to his testifying, and whether there had been an
agreement between the state and Callicutt. Specifically, the defendant was entitled
to determine if the prosecuting attorney told Callicutt anything that would make
Callicutt think he would be released on bail or receive any other favorable treatment
if he testified for the state. See Giglio v. United States, 405 U.S. at 154-55.
Defense counsel properly proposed to make an offer of proof by questioning
one of the prosecuting attorneys. See Tenn. R. Evid. 103(a)(2). The prosecuting
attorney argued there was no agreement, and defense counsel was not allowed to
pursue an offer of proof. W e do not know what would have developed if defense
counsel had been allowed to pursue his offer of proof. However, the mere statement
by the prosecuting attorney that there was no agreement is insufficient to deny
defendant the right to pursue evidence relating to the credibility of the state’s key
witness. Under these circumstances, the only possible remedy is a remand for a new
trial.
JURY QUESTIONING OF CALLICUTT
Next, the defendant challenges the trial court’s decision to allow the jury to
pose questions to Callicutt. A trial court has broad discretion in controlling the
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conduct of a trial. State v. Gibson, 973 S.W.2d 231, 245 (Tenn. Crim. App. 1997).
A key consideration for whether the trial court abused its discretion in allowing jury
questioning of a witness is whether it was prejudicial to the defendant. State v.
Jeffries, 644 S.W.2d 432, 435 (Tenn. Crim. App. 1982). Thus, a trial court abused
its discretion by allowing forty-two transcript pages of argumentative, prejudicial,
irrelevant, and biased questioning by several jurors who assumed the role of state’s
advocate. Id. at 434-35.
Here, the record reveals that near the end of the defense counsel’s cross-
examination of Callicutt, one juror spontaneously asked Callicutt a question. The trial
judge replied, “Don’t ask any questions. If you have a question, just pose it to us.”
The defense counsel’s questioning of Callicutt resumed, and a few moments later,
both the defense counsel and the prosecutor announced they had no more questions
for this witness. While the jury passed around some picture exhibits, the parties held
a bench conference on an unrelated matter. The bailiff then informed the trial court
that one of the jurors had a question. The trial court required the juror to pose the
question to the court, and before the witness answered the question, the judge
approved it.
In all, the jurors posed six questions to Callicutt. Prior to the witness
answering the questions, the trial court screened the questions, giving his approval
that the question was acceptable. Five of the six juror questions were rephrased by
either the assistant district attorney or the trial court, but one was not. Of the six
questions, one was previously asked and answered, another served to clarify the
witness’s testimony, and the remainder appeared to solicit new evidence; however,
all of the questions were germane to the issues raised during the witness’s testimony.
After three of the six questions, the defense attorney asked extensive follow-up
questions, even taking the opportunity at one point to try to impeach the witness with
his prior statement to police.
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We conclude the jury questioning was not prejudicial to the defendant. In fact,
given the substance of some of the witness’s answers and the additional opportunity
to impeach the witness, much of the questioning benefited the defendant. As such,
we find no abuse of discretion. This issue is without merit.
PREJUDICIAL QUESTION BY THE STATE
Finally, the defendant claims that a question posed by the state constituted
plain error. While cross-examining the defendant during trial, the state questioned
the defendant about his primary mode of transportation, that is, whether he had a car
or whether he relied upon his bike and/or rides from Corey Ragland. The defendant
testified that he sometimes drove his parents’ car. The state asked whether he had
ever driven any other cars, and the defendant replied he had. The state then asked
whether he had “borrowed” those other cars without permission. Before the
defendant answered, the defense attorney lodged a general objection, which was
sustained. The issue was then dropped; the state switched lines of questioning; and
the defendant did not request any further remedy, such as a curative instruction or
mistrial.
Because the defendant did not raise this issue in his motion for new trial, we
will reverse only upon a finding of plain error. See T.R.A.P. 3(e); Tenn. R. Crim. P.
52(b); State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Plain error is error that affects
the “substantial rights” of the defendant and needs to be corrected in order “to do
substantial justice.” Tenn. R. Crim. P. 52(b). This burden is not met under the
circumstances of this case. This issue is without merit.
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CONCLUSION
Based upon our examination of the record, we conclude the defendant was
improperly denied the right to develop evidence relating to the credibility of the state’s
key witness. The judgment of the trial court is, therefore, REVERSED and the case
REMANDED for a new trial.
_______________________________
JOE G. RILEY, JUDGE
CONCUR:
(See separate dissenting opinion)
JOHN H. PEAY, JUDGE
______________________________
THOMAS T. WOODALL, JUDGE
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