DocketNumber: 01C01-9702-CR-00068
Filed Date: 4/20/1999
Status: Precedential
Modified Date: 10/30/2014
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JANUARY SESSION, 1998 April 20, 1999 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9702-CR-00068 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER SHAWN D. LESLEY, ) JUDGE ) Appe llant. ) (Direct Appeal - Second Degree ) Murder) FOR THE APPELLANT: FOR THE APPELLEE: F. MICHIE GIBSON, JR. JOHN KNOX WALKUP 1416 Pa rkway Tow ers Attorney General and Reporter 404 James Robertson Parkway Nashville, TN 37219 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General JOHN ZIMMERMANN Assistant District Attorney 222 2nd Avenue, No. Nashville, TN 37201 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION On November 15, 1995, a Davidson County jury convicted Appellant Shawn D. Lesley of second degree murder. On February 29, 1996, the trial court sen tenced Appella nt as a R ange I sta ndard o ffender to a term o f twenty years. Appellant filed a motion for a new trial on March 28, 1996, and an amended motion for a new trial on September 6, 1996. The trial court denied the m otion fo r a new trial on O ctobe r 4, 199 6. App ellant c hallen ges h is conviction, raising the following issues: 1) whether the trial court erred when it allowed the State to introduce photographs of the victim’s hands into evidence; and 2) wheth er the trial co urt erred w hen it allow ed a witne ss for the S tate to testify about Appellant’s demeanor at the time that Appellant took the victim to the ho spital. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt. I. FACTS Steven Cernawsky testified that he was working as a nurse in the emergency room of Metro General Hospital on March 23, 1993, when Appellant entered the hospital carrying fifteen-month-old Laura Waters. When Appellant handed him the child, Cernawsky noticed that she was not breathing and he immediately attempted to resuscitate her. Although Cernawsky began performing C.P.R. when he determined that Laura had no pulse, Laura did not regain co nscious ness. -2- Cernawsky also testified that he observed that Laura had some bruising on her forehead and had burns on her hands. Cernawsky then identified some photog raphs o f Laura’s h ands a nd the p hotogra phs we re introdu ced into eviden ce with out ob jection . The p rosec utor the n ask ed Ce rnaws ky if he c ould describe Appella nt’s dem eanor w hen Ap pellant ha nded L aura to h im. Appe llant’s coun sel then o bjected o n the gro und tha t Cerna wsky wa s not a psych ologis t who w as qu alified to give an opinio n abo ut App ellant’s demeanor. The trial court then stated that it would reserve ruling on the objection until after it heard Cernawsky’s response.1 Cernawsky then testified that “[Appellant] walked up to the desk. I was sitting there charting, and he stood there with the child. I looked up and asked if I could help him. And he just handed me . . . the child calmly. And . . . that’s when he said to me that she had fallen and was h aving trouble brea thing.” Doctor Olayinka Onadeko testified that he had treated Laura in the emerge ncy room o n March 2 3, 1993. Althou gh Doctor O nadeko a nd others performed C.P.R. for almost twenty-five minutes, the child did not resume breathing. When Doctor Onadeko asked Appellant about the circumstances of Laura’s death, Appellant stated that Laura had fallen down some steps and had stopped breathing before they got to the hospital. Doctor Onadeko then testified that Appellant’s explanation was inconsistent with Laura’s injuries and her death from a head injury. Doctor Onadeko also testified that Laura had unusual second or third degree burns on her hands and he then identified the photog raphs th at show ed the b urns. 1 It appears that the trial court never formally ruled on the objection. -3- Doctor Julia Goodin testified by video taped deposition that she had perform ed an a utopsy o n Laura and ha d determ ined that th e caus e of dea th was “multiple head trauma” that was consistent with multiple blows to the head or violen t shak ing. Do ctor G oodin also ide ntified th e pho tograp hs of L aura’s hand s and testified that the burn in juries w ere inc onsis tent with Appe llant’s statement to the police that Laura had pulled herself up the stairs by grabbing the handrail because it would have been too painful for Laura to hold on to the handra il. Detective Ron Carter of the Metro Police Department testified that Appellant had given a statement in which he claimed that Laura had injured herself when she fell down some stairs. Detective Carter subsequently video taped a reenactment by Appellant of how Laura allegedly climbed up some stairs by holding on to the handrail and then fell down the stairs. Detective E.J. Bernard of the Metro Police Department testified that Appellant gave a subsequent statement in which he admitted that Laura had not fallen down the stairs. Detective Bernard also testified that Appellant had admitted that he had been angry and he had taken his anger out on Laura by shaking her very ha rd and th rowing L aura “for a flip” four times . Appellant testified that Laura had been climbing up some stairs when her hand slipped off the rail and she fell backwards. Appellant also testified that after Laura fell, he picked her up and ran to the hospital. Appellant testified that when he was subsequently taken to police headquarters, Detective Carter pointed a gun at his head and told him that if he “mess[ed] -4- up” he w as going to die. App ellant testified that at this po int, he dec ided to make up a story about h ow he h ad bea ten Lau ra and to ssed h er in the air. II. INTRODUCTION OF PHOTOGRAPHS Appe llant conte nds tha t the trial court e rred whe n it allowed the State to introduce the pho tograph s of Laur a’s burne d hand s into evide nce. Specifically, Appellant claims that the photographs were not relevant to any issue in the case and thus, their probative value was substantially outweighed by danger of unfair prejudice. Initially, we note that Appellant has waived this issue by failing to object to the introd uction of th e photo graphs at trial. See State v. Duncan, 698 S.W .2d 63 , 67 (T enn. 1 985) (s tating th at the fa ilure of a defen dant to timely object to the introduction of evidence is a waiver of appellate review of the issue); Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be gra nted to a p arty respo nsible for a n error or w ho failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.”). Notwithstanding the waiver, we conclude that Appellant is not entitled to relief on the merits. Rule 403 of the Tennessee Rules of Evidence states that Althou gh rele vant, ev idenc e ma y be ex clude d if its pro bative v alue is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or m isleading the jury, or by co nsiderations of un due delay, waste of time, or needless presentation of cumulative evidence. -5- Ten n. R. E vid. 403 . The d eterm ination of whe ther to a dmit p hotog raphs falls within th e sou nd dis cretion of the tria l court a nd the trial cou rt’s dec ision w ill not be o verturned unless th ere has been a clear abu se of disc retion. State v. Zirkle, 901 S.W .2d 874, 888 (Tenn. Crim . App. 1995 ). In this case, the photographs of Laura’s burned hands have obvious relevance to the issue of whether Laura was killed by Appellant or whether she died as the result of an accident. In both his pre-trial statements to police and his testimony at trial, Appellant claimed that Laura had been injured when she fell down some stairs after she walked up the stairs while holding on to the handra il. Doctor G oodin tes tified that Ap pellant’s cla im was inconsis tent with the burn wounds on Laura’s hands. Specifically, Doctor Goodin testified that Laura would have experienced a lot of pain when she touched something and thus, she would n ot have h eld on to th e hand rail to pull hers elf up the s tairs. The photo graph s were introdu ced in order to illustrate Docto r Goo din’s testimon y. This wa s a prop er purpo se. See State v. Stephenson,878 S.W.2d 530
, 542 (Tenn. 1994) (stating that trial court did not abuse its discretion when it admitted a photograph of a corpse to illustrate the testimony of a police detective). Finally, we have viewed the ph otographs a nd while they are certainly unpleasant, they are not particularly gruesome. Thus, we conclude that the probative value of the photographs was not substantially outweighed by danger of unfair prejudice. Accordingly, we hold that the trial court did not abus e its disc retion w hen it a dmitte d the p hotog raphs into evid ence . This issue ha s no m erit. -6- III. TESTIMONY ABOUT APPELLANT’S DEMEANOR Appellant contends that the trial court erred when it allowed Cernawsky to testify that when Ap pellant entered the emerge ncy room, A ppellant “calmly” handed Laura to him. Specifically, Appellant claims that this was error because Cernawsky was not an expert who was qualified to give his opinion that Appellant was calm. At the time that Appellant was tried in November of 1995, Rule 701 of the Te nness ee Ru les of Evide nce pro vided, in pe rtinent part: Gen erally. If th e witne ss is no t testifying as an exper t, the witn ess’s testimony in the form of opinions or inferences is limited to those opinions or inferences where: (1) The opinions and inferences do not require a special knowledge, skill, experience, or training; (2) The witness cannot readily and with equal accuracy and adequacy communicate what the witness has perceived to the trier of fact witho ut testifying in te rms of o pinions o r inference s; and (3) The opinions or inferenc es will not m islead the trier of fact to the preju dice of the objecting party. Tenn. R . Evid. 701(a). 2 We hold that C ernaws ky’s use o f the word “calmly” to describe Appellant’s demeanor satisfies the requirements of this rule. First, no “special knowledge, skill, experience, or training” is required to form an opinion that someone acted “calmly” because such an opinion is within the range of com mon exper ience . Seco nd, we conc lude th at Ce rnaws ky cou ld 2 In 1996, Rule 701(a) was amended to read as follows: Generally. If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issu e. Tenn. R. Evid. 701(a). Our decision would be the same under either version of the Rule. -7- not ha ve as “r eadily a nd with equa l accur acy an d ade quac y” expla ined h is interactions with and observations o f Appellant if he had not used the te rm “calmly.” T he Adv isory Com mission Com ments to Rule 7 01 state th at In situations where a witness “cannot readily and with equal accuracy and ad equac y” testify withou t an opinio n, the witne ss ma y state opinions requiring n o expertis e. Cons equen tly, a lay witnes s may te stify that a per son wa s “drunk ” or that a ca r was trave ling “fast.” Tenn. R. Evid. 701, Advisory Commission Comments. We can see no difference between giving an opinion that someone was “drunk” or traveling “fast” and giving an o pinion that som eone app eared to act “ca lmly.” Finally, we do n ot believe th at Cern awsky’s use of the word “ca lmly” misle d the jury to the preju dice of A ppellant. T his issue has no merit. Accordingly, the judgment of the trial court is AFFIRMED. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ JOHN H. PEAY, JUDGE ___________________________________ THOMAS T. WOODALL, JUDGE -8-