State v. Wilbert Rogers

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
SEPTEMBER 1997 SESSION October 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9611-CR-00418
Appellee, )
) SHELBY COUNTY
VS. )
)
) HON. CHRIS CRAFT, JUDGE
WILBERT K. ROGERS )
(A.K.A. PERSON ROGERS), ) (Second degree murder)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General and Reporter
WALKER GWINN (On appeal) SARAH M. BRANCH
TONY N. BRAYTON (At trial) Assistant Attorney General
Assistant Public Defenders 450 James Robertson Parkway
201 Poplar Ave. Nashville, TN 37243-0493
Suite 201
Memphis, TN 38103 WILLIAM GIBBONS
District Attorney General
AMY WEIRICH
Assistant District Attorney General
201 Poplar Ave.
Suite 301
Memphis, Tennessee 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant was convicted by a Shelby County jury of second degree murder
and sentenced to thirty-three (33) years as a Range II, Multiple Offender. Defendant
brings one issue for our review: whether the judgment should be modified to criminal
attempt to commit murder because the victim’s death did not occur within a year and
a day of the alleged mortal wound. We find that the Criminal Sentencing Reform Act
of 1989 abolished this common law defense and affirm the judgment of the trial court.
FACTS
Although the sufficiency of the evidence is not at issue, a review of the facts
is instructive. Lisa Sledge, paramour of the victim, James Bowdery, testified that on
May 6, 1994, she had been entertaining the victim during the afternoon of the
incident when the defendant arrived to do his laundry, a standard practice. Sledge,
Bowdery, and the defendant played cards and drank until about 8:00 p.m. Sledge
and Bowdery went to sleep in the upstairs bedroom. Defendant was asleep on the
downstairs sofa. At some point before daybreak, the defendant came into the
bedroom asking where his money was, stabbed the victim with a butcher knife, and
left. Ms. Sledge called 9-1-1.
Dr. Jerry T. Francisco, a pathologist, testified at trial. Although the victim did
not die until August 7, 1995, Dr. Francisco attributed the cause of death to the
wounds sustained on May 7, 1994. His review of the medical records showed that
Bowdery was stabbed in the heart, which caused the heart to stop. As a result, he
developed cerebral hypoxia. This deprivation of oxygen to the brain caused him to
become comatose. He remained in this vegetative state and developed a kidney
infection, which is not unusual for such patients. He died on August 7, 1995,
approximately sixteen (16) months after the defendant had wounded him.
Defendant presented no proof.
COMMON LAW DEFENSE
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The sole issue on appeal is whether the second degree murder
conviction must be modified since the victim did not die within a year and a day of the
infliction of the mortal wound. The “year-and-a-day rule” was the common law
requirement. See Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907); Cole v.
State, 512 S.W.2d 598 (Tenn. Crim. App. 1974).
This Court has considered this question previously in State v. Ruane, 912
S.W.2d 766, 774 (Tenn. Crim. App. 1995), and held the Criminal Sentencing Reform
Act of 1989 abolished common law defenses. Affirmative defenses are listed by
statute, and the “year-and-a-day rule” is not listed among those defenses now
available. Id.; Tenn. Code Ann. § 39-11-204. Furthermore, Tenn. Code Ann. § 39-
11-203(e)(2) specifically abolishes all common law defenses. We, therefore,
conclude the “year-and-a-day rule” defense is no longer viable in Tennessee.
Defendant’s contention that the abolition of this defense is an ex post facto
violation is also without merit. Tenn. Code Ann. § 39-11-203 went into effect in 1989.
The mortal wound was inflicted in 1994.
CONCLUSION
The judgment of the trial court is affirmed in all respects.
JOE G. RILEY, JUDGE
CONCUR:
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JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
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