State v. Christopher Barham

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
NOVEMBER 1996 SESSION
June 26, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 02C01-9606-CC-00205
)
Appellee )
) MADISON COUNTY
V. )
) HON. WHIT LAFON,
CHRISTOPHER M. BARHAM, ) JUDGE
)
Appellant. ) (Assault)
)
)
For the Appellant: For the Appellee:
Stephen P. Spracher John Knox Walkup
Assistant Public Defender Attorney General and Reporter
227 West Baltimore
Jackson, TN 38301
(At trial) Mary M. Bers
Assistant Attorney General
George Morton Googe 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
227 West Baltimore
Jackson, TN 38301
(On appeal) James G. (Jerry) Woodall
District Attorney General
James W. Thompson
Assistant District Attorney
225 Martin Luther King Drive
Jackson, TN 38302
OPINION FILED: ___________________
REVERSED AND REMANDED
William M. Barker, Judge
OPINION
The appellant, Christopher M. Barham, appeals as of right his conviction in the
Madison County Circuit Court of one count of assault. Appellant was sentenced to the
maximum eleven (11) months, twenty-nine (29) days for the misdemeanor offense.
This sentence was ordered to run consecutively to prior sentences unrelated to this
conviction.
On appeal, Barham contends that the trial court erred by neglecting to instruct
the jury on the defense of alibi. He also objects to the consecutive nature of his
sentence. After a thorough review of the record, we find that the failure of the trial
court to instruct the jury on the defense of alibi when it was fairly raised by the
evidence constitutes reversible error. Therefore, the appellant’s assault conviction is
reversed and the cause is remanded to the trial court for a new trial.
On a Friday afternoon in the summer of 1994, appellant went to Evelyn Day’s
home in Jackson to visit his four-year-old daughter, Lakesha. Evelyn Day was the
mother of the child and Lakesha’s primary caretaker. Appellant had recently pursued
his visitation rights and a court had ordered a regular visitation schedule. That
particular day, however, was not one of the scheduled occasions.
When Ms. Day came to the door, appellant asked to see Lakesha. The child’s
mother let him in the house and they sat down on the couch in the den. According to
Ms. Day, they started “playing around.” However, appellant soon began twisting her
arm. She told him that it hurt because she was suffering from carpal tunnel syndrome.
They wrestled to the floor, where appellant then put her in a head lock. Lakesha was
in the room and observed these events. Fearful that he was hurting her mother, she
went over to appellant and started hitting him. Appellant became upset and picked up
Lakesha, put her on his lap, and spanked her. Lakesha then ordered her father out of
the house, a sentiment that was echoed by Ms. Day’s mother, who had witnessed the
incident.
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Appellant went outside and asked Evelyn Day to accompany him to talk. She
complied by following him into the garage. Appellant sat down in a patio chair,
exposed his genitals to Day, and asked her to have sex with him. She declined his
advances and a shouting match ensued. Appellant then left. In August of 1994, Ms.
Day reported these events to the authorities after learning that she could not obtain a
restraining order against appellant. As a result, appellant was indicted for two counts
of assault, one against Evelyn Day and another against Lakesha. He was also
indicted for indecent exposure.
At trial, when questioned about which day the assault occurred, Ms. Day
candidly admitted that she did not remember the exact date. However, she testified
that she distinctly remembers that it occurred on a Friday. Also, she stated that it was
“around like two weeks before the 4th of July” and that it was close to the end of the
month. Relying upon a 1994 calendar, it was determined that that date would have
been June 24. She further testified that the incident occurred between 4:30 p.m. and
5:30 p.m. She had gotten off work at 4:00 p.m. and appellant stopped by just shortly
after she arrived home. Specifically, she remembers looking at the clock at 5:10 and
appellant had been there for a few minutes. She testified that the assault occurred
soon thereafter.
Most of Ms. Day’s testimony was confirmed by her mother, Ruby Day, with
whom she resided. Ruby Day stated that she was washing dishes when the events
occurred. She was able to observe her daughter and appellant because her kitchen
and den adjoin in one large area. Ms. Ruby Day observed appellant twisting Evelyn’s
arm and also when he put her in a head lock. She confirmed that she ordered him to
leave the house. Ms. Day had no firsthand knowledge about the events that occurred
in the garage.
Three witnesses testified on behalf of appellant. Phoebe Pearson was
appellant’s girlfriend at the time of the incident. She testified that on the day of the
incident she and appellant rode the bus downtown in the morning and then they
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parted ways. Later that day, she encountered appellant at the Hello Gorgeous Beauty
Shop where he was having his hair done. She and appellant left the shop around
3:00 p.m., and she drove him to his home where he changed his clothes for work.
She dropped him off at work sometime between 4:00 and 5:00. On cross-
examination, she admitted that she was not sure of the actual date when that
happened. Pearson remembered that those activities occurred one day, but was
relying on appellant’s assertion that the assault happened on June 24, 1994. She
also agreed that she had previously told an investigator that it could not have been on
a Friday. Other inconsistencies from her earlier statement were revealed as well.
Vanessa Watkins, a stylist at the Hello Gorgeous Beauty Shop, also testified on
appellant’s behalf. She was aware of the day the alleged incident happened, but
could not recall the particular events of that day. She did not remember whether
appellant was in her shop on the day of the incident. Watkins said she often does not
write down appellant’s appointments and she had no notation concerning him on that
day.
Finally, the appellant’s supervisor at Po Folks restaurant, where he worked at
the time of the incident, testified and introduced computerized records from the
restaurant. Those records reflect that on June 24, 1994, appellant clocked in at 5:06
p.m. and clocked out at 11:07 p.m. She had no independent recollection of the hours
that appellant actually worked that night.
The jury found appellant guilty of assaulting Evelyn Day, but acquitted him of
the assault of Lakesha Day and the indecent exposure charge. No fine was imposed.
The trial court later sentenced appellant to eleven (11) months, twenty-nine (29) days,
the maximum for a Class A misdemeanor. The sentence was ordered to be served
consecutively to appellant’s unserved prior sentences.
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Appellant first challenges the trial court’s failure to instruct the jury on the
defense of alibi. 1 He contends that he filed a notice of the alibi defense prior to trial
and that such defense was supported by the proof. As a result, he argues that it was
mandatory for the trial court to instruct the jury on this defense. He further contends
that the failure to do so is reversible error. We are compelled to agree with appellant.
It is incumbent upon a trial court to give the jury a complete charge of the law
applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.),
cert. denied, 476 U.S. 1145, 106 S.Ct. 2261, 90 L. Ed. 2d 706 (1986) (citation
omitted). Trial courts have an affirmative duty to instruct the jury on every issue raised
by the proof. Taylor v. State, 369 S.W.2d 385, 386 (Tenn. 1963). This duty for a full
exposition of the applicable law extends to the accused’s theory of defense, including
the defense of alibi. Poe v. State, 370 S.W.2d 488, 491 (Tenn. 1963). See also State
v. McPherson, 882 S.W.2d 365, 374 (Tenn. Crim. App. 1994) (citations omitted).
When a defendant pursues an alibi defense at trial, the trial court must instruct the jury
on the defense when it is “fairly raised” by the evidence. Manning v. State, 500
S.W.2d 913, 916 (Tenn. 1973); Poe, 370 S.W.2d at 491. See also Christian v. State,
555 S.W.2d 863, 864 (Tenn. 1977); State v. Hardin, 691 S.W.2d 578, 581 (Tenn.
Crim. App. 1985). This duty exists irrespective of a request for the instruction by the
defendant.2 Poe, 370 S.W.2d at 491.
Our supreme court has provided three scenarios reflecting when an alibi
defense has been “fairly raised,” thereby making the instruction mandatory. Manning,
500 S.W.2d at 916. Those scenarios are:
1
W e not e tha t app ellant failed to rais e this issue in his m otion for a n ew tria l. Ord inarily, th is
constitute s waiver. T enn. R. A pp. P. 3(e ); State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App.
1988). However, as an exercise of our discretion, we have chosen to address the issue. Furthermore,
we are mindful that the suprem e court has alluded that the omission of the alibi defense in jury
instruction s ma y constitute p lain error. See Mann ing v. State , 500 S.W.2d 913, 914 (Tenn. 1973)
(hold ing th at an appe llate c ourt is not p reclu ded from cons iderin g an u nas sign ed er ror on appe al if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings).
2
As a resu lt, app ellant ’s failu re to r equ est th e inst ructio n at tria l is of n o con seq uen ce on appe al.
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(1) where the defendant’s alibi has been corroborated by other credible
witnesses;
(2) where the victim has been unable to identify the defendant; or
(3) where the proof against the defendant is wholly circumstantial.
Id. Only where the evidence fairly raises the defense by meeting one of the above
circumstances does the trial court have an unequivocal duty to instruct the jury. Id. In
contrast, where the evidence does not meet these circumstances, the trial court is not
required to give such instructions. Id.; see also Hardin, 691 S.W.2d at 581;
Almonrode v. State, 567 S.W.2d 184, 186 (Tenn. Crim. App. 1978). Because the
evidence at appellant’s trial satisfies the circumstances in the first example, we find
that an instruction on the defense of alibi was warranted.
Appellant’s only defense at trial was that he was not present in Evelyn’s house
at the time of the assault. Although he did not testify at trial, appellant’s alibi defense
was introduced through Phoebe Pearson’s testimony and corroborated by Sheree
Hixson, his supervisor at Po Folks. Pearson testified that she took appellant to work
on the day of the assault between 4:00 p.m. and 5:00 p.m. Hixson produced time
records from the restaurant where appellant worked. Those records reflected that on
June 24, 1994, the alleged day of the assault, appellant began work at 5:06 p.m.3
This created a direct conflict in factual testimony. Evelyn Day testified positively
that appellant was at her house at 5:10 p.m on the day of the assault. Appellant
asserted, through Hixson’s testimony, that he was at work that day at 5:06 p.m and
remained there until after 11:00 p.m. Appellant could not be in two places at the same
time. Thus, appellant fairly raised the defense of alibi and it was for the jury to
evaluate the credibility of the witnesses and decide this factual issue. In order to
properly perform its duty of applying the law to the facts, the jury must be instructed on
the law applicable to all factual issues raised by the proof, including the alibi defense.
3
We are aware that the date of the offense was not conclusively established. Based on
information from the victim, Evelyn Day, the State proceeded on the theory that the offense occurred on
June 2 4, 1994. W hether th at was th e exac t day of the o ffense was a q uestion o f fact for the jury to
decide.
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Thus, appellant was entitled to an instruction on that defense to aid the jury in properly
evaluating the proof.
Appellant also satisfied the inherent requirement that his alibi be corroborated
by a credible witness. See State v. Johnny Wayne Brown, No. 88-153-III, (Tenn.
Crim. App. at Nashville, April 28, 1989) (holding that alibi defense could not be
considered fairly raised where it was not supported by credible evidence). Here, the
credibility of the corroborating witness, Hixson, was never at issue. From all
appearances, she was a disinterested witness and the State never attacked her
credibility. At the time of trial, neither appellant nor Hixson worked at the restaurant.
Thus, appellant’s defense of alibi was corroborated by credible evidence, thereby
making it incumbent upon the trial court to instruct the jury on this defense.
Finding that the trial court erred in its jury charge by omitting the alibi
instruction, we cannot say that it is harmless error. When the defense of alibi is fairly
raised by the proof at trial, the failure to so instruct the jury is reversible error. Poe,
370 S.W.2d at 490-91; see also Manning, 500 S.W.2d at 916. W hen an alibi is
supported by the proof, the instruction is fundamental to the defense and essential to
a fair trial. Poe, 370 S.W.2d at 491. It follows that appellant’s conviction must be
reversed and a new trial ordered.
For the benefit of the trial court on remand we will address the alleged errors in
sentencing. Appellant argues that it was error for the trial court to order his
misdemeanor sentence to be served consecutively to his prior sentences. Contrary to
the trial court’s ruling, he contends that such an order was not mandated by law. In
addition, appellant argues that the trial court erred in ordering him to serve one
hundred percent of this sentence.
At his sentencing hearing, the appellant testified that he had been on parole at
the time of his conviction in this case and his parole was thereafter revoked in part for
this conviction and in part for an unrelated parole violation. As the trial court was
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pronouncing its judgment regarding the appellant’s sentence for this offense, the
prosecutor advised the trial court that by law the sentence for this assault conviction
was required to be ordered to be served consecutively to the sentence being served
by the appellant following his parole revocation. The trial court agreed and
accordingly ordered the appellant to serve his eleven months and twenty-nine day
sentence consecutively to his prior conviction.
Rule 32 of the Tennessee Rules of Criminal Procedure outlines those instances
where consecutive sentences are mandatory. Since the appellant was convicted of
misdemeanor assault in this case, Rule 32 did not make a consecutive sentence
mandatory. Therefore, upon retrial, if the appellant is again convicted, the trial court
should use its sound discretion in determining whether a sentence in this case should
be served consecutively or concurrently with any other sentences. That decision, of
course, should be made based upon the record and in accordance with the principles
and guidelines of the Sentencing Act.
Finally, the trial court ordered that the appellant serve one hundred percent of
this misdemeanor sentence. The misdemeanor sentencing statute provides for a
maximum of seventy-five percent service. Tenn. Code Ann. § 40-35-302(d) (Supp.
1996). Our Supreme Court has held that one hundred percent service may be
ordered in DUI cases only. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).
Therefore, the trial court may not order the appellant to serve more than seventy-five
percent of any new misdemeanor sentence he may receive upon subsequent
conviction.
As stated, we find that the trial court committed reversible error in failing to
instruct the jury on the defense of alibi when it was fairly raised by the proof at trial.
Accordingly, we reverse the appellant’s conviction for assault and remand this cause
to the trial court for a new trial.
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_______________________________
William M. Barker, Judge
____________________________
Gary R. Wade, Judge
____________________________
David G. Hayes, Judge
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