State of Tennessee v. Gary Lynn Harvey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 23, 2009 Session
STATE OF TENNESSEE v. GARY LYNN HARVEY
Appeal from the Criminal Court for Knox County
No. 79665 Ray Lee Jenkins, Judge (trial);
Kenneth F. Irvine, Judge (motion for new trial)
No. E2008-01081-CCA-R3-CD - Filed December 30, 2010
Appellant, Gary Lynn Harvey, was found guilty by a Knox County Criminal Court
jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor. See
Tenn. Code Ann. §§ 39-13-101 & 39-17-305. The trial court sentenced Appellant to eleven-
months, twenty-nine days on probation for the assault conviction and to thirty days on
probation for the disorderly conduct conviction, with the sentences to run concurrently. On
appeal, Appellant contends that the trial court erred by: (1) refusing to dismiss the disorderly
conduct charge because the presentment was insufficient; (2) refusing to dismiss the
disorderly conduct charge because section 39-17-305(b) is unconstitutionally vague and
overbroad; (3) finding the evidence sufficient to support his conviction for disorderly
conduct; (4) finding the evidence sufficient to support his conviction for assault; (5) not
declaring a mistrial due to an officer’s conduct during jury deliberations; (6) not finding
prosecutorial misconduct after Appellant was charged with assaulting an officer who denied
being assaulted; (7) not declaring a mistrial following the discharge of a juror during
deliberations and the recall of an alternate juror who had already been discharged; (8) not
providing Appellant with a written copy of the jury instructions before his closing argument;
(9) incorrectly charging the jury on reasonable doubt; (10) incorrectly charging the jury on
self-defense; (11) incorrectly charging the jury on lawful resistance; (12) denying him the
right to present a complete defense by erroneously excluding newspaper articles as hearsay
evidence; (13) violating his Sixth Amendment right to confront witnesses; (14) improperly
conducting voir dire; (15) denying him the right to present a complete defense by erroneously
excluding witness testimony and by granting the State’s motion to quash subpoenas against
the Knoxville Sheriff and two chief deputy sheriffs; (16) refusing to grant a change of venue;
and (17) denying his right to a speedy trial by delaying in ruling on his motion for new trial.
Because Appellant was denied his constitutional right to a jury trial when the trial court
substituted a discharged alternate juror for a disqualified original juror during deliberations,
we reverse the judgments and remand the case for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed,
Case Remanded
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J OSEPH M. T IPTON, P.J., not participating.
Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Gary Lynn Harvey.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall E. Nichols, District Attorney General; Patricia Cristil and William Jeff Blevins,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case concerns an altercation that occurred after police officers responded to a
noise complaint at Appellant’s apartment. Knox County Sheriff’s Sergeant Julian Michael
Evans testified that on May 10, 2003, he was employed by the Sheriff’s Department but was
not on duty. Instead, he was working as a courtesy officer for Fox Lake Apartments (“Fox
Lake”) in Knoxville, where he lived. His duties as a courtesy officer included investigating
noise complaints, which is why he went to Appellant’s apartment on May 10. He said that
on that night, he drove a patrol car, carried his gun, and wore a Sheriff’s Department polo
shirt and badge.
Sergeant Evans testified that he heard a “pornographic noise” coming from a stereo
speaker sitting on the patio outside Appellant’s apartment. He stated that when he knocked
on Appellant’s apartment door and identified himself to a man who answered, the man stated
that he did not live in the apartment and shut the door. He said that Appellant then opened
the door and asked “who the hell” he was. Sergeant Evans said that he told Appellant he was
a courtesy officer there to investigate a noise complaint. He said that Appellant said he
would “have something for” him if he came back to the apartment and slammed the door in
his face.
Sergeant Evans testified that the noise did not stop and that he returned to his car to
call for back-up. He said people were leaving a party at Appellant’s apartment. He stated
that Appellant and another man were on the balcony and that they flipped cigarette butts at
him. He said that five or ten minutes after he called for back-up, Officers Eric Tipton and
Benjamin Gresham arrived in patrol cars and in uniform. Sergeant Evans said that after an
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initial discussion, all three climbed the steps to Appellant’s apartment.
Sergeant Evans testified that Officer Tipton knocked on Appellant’s door, which
Appellant opened quickly. He said there were eighteen to twenty-two inches between
Appellant and him. He said that Appellant looked at the officers from left to right and that
when his eyes stopped on Sergeant Evans, he said, “I told. . . .” He said that Appellant’s arm
came out of the door in a “very aggressive manner” and that he grabbed Appellant’s arm
before it could reach his face. He said that he feared Appellant was going to strike him. He
stated that Appellant pulled backward and that because he did not let go of Appellant’s arm,
he went into the apartment.
Sergeant Evans testified that he did not let go of Appellant’s arm when he felt
Appellant fall to the ground and that when they landed, he could feel someone else land on
top of him. He said he saw Officer Tipton trying to control Appellant’s other arm. He stated
that after a few seconds of struggling, he and Officer Tipton handcuffed Appellant.
Sergeant Evans testified that he searched Appellant’s apartment for the other man he
had seen but did not find him. He said that the “pornographic noise” came from Appellant’s
television, which he unplugged to stop the noise. He stated that he pulled the speaker away
from the door and shut the door. He said he and the other officers escorted Appellant to a
patrol car.
Sergeant Evans testified that when he asked Appellant if he was okay, Appellant said
his shoulder hurt. Sergeant Evans said he called an ambulance and accompanied Appellant
to Parkwest Hospital. He said that after four hours at Parkwest Hospital, Appellant was
taken into custody.
Sergeant Evans testified that Officer Tipton obtained arrest warrants for Appellant in
relation to the incident. He said that he never received a subpoena for Appellant’s charges
and that he never went to General Sessions Court on the warrants. He stated that he later
found out that he was being sued by Appellant and that Appellant’s criminal case had been
dismissed.
On cross-examination, Sergeant Evans testified that he lived at Fox Lake rent free in
return for serving as a courtesy officer. He stated that he did not know who made the noise
complaint to the answering service. He said he understood that Officer Tipton was going to
complete an arrest report on Appellant. He agreed that Officers Tipton and Gresham were
both his friends.
Sergeant Evans testified that when he and the other officers knocked on Appellant’s
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door, his intent was to ask him to turn down the noise. He said that after Officer Tipton
knocked, Appellant swung his arm toward Sergeant Evans’s face until Sergeant Evans
stopped it before it reached his head. Sergeant Evans admitted that, during a deposition
related to Appellant’s civil case, he demonstrated Appellant’s movement by pointing his
finger. But Sergeant Evans testified at trial that Appellant’s movement was a swinging one,
not pointing or gesturing.
Sergeant Evans testified that after Appellant filed a civil suit against him, he looked
at Officer Tipton’s arrest report with one of his attorneys. He stated that he disagreed with
the characterization in the report of Appellant’s reaction at the door as a “defensive stance.”
He agreed with a sentence in the arrest report that read: “Appellant was unsteady on his feet,
had bloodshot eyes, a strong odor of alcoholic beverage about his person.” He disagreed
with a statement in the arrest report that said Appellant began fighting after being
handcuffed. He said that from the moment Appellant swung at him, Appellant was under
arrest for assault. He agreed that Officer Tipton wrote in the arrest report that Appellant was
handcuffed for public intoxication. He agreed that the presentment handed down on May 4,
2004, did not contain a charge for resisting arrest.
Sergeant Evans testified that he attached one of Appellant’s handcuffs to the gurney
for the ambulance ride but did not know if Appellant remained handcuffed at the hospital.
He said that he left the hospital before Appellant was released and that he was not the officer
who transported Appellant to the penal farm. He stated that when he last saw Appellant at
the hospital, Appellant had puffy eyes and a “little knot” on his head. He said Appellant’s
eyes were somewhat puffy when he first came to the apartment door.
Sergeant Evans testified that he remembered seeing Appellant’s face on the front page
of the Knoxville News Sentinel after the incident and that in the photograph, Appellant
looked worse than he had at the hospital. He said that he did not remember an abrasion over
Appellant’s left eye or that the eye was as puffy as in the photograph. He said he did not
remember seeing any marks on Appellant’s sides or if Appellant was wearing glasses.
Sergeant Evans testified that as a supervisor in the Sheriff’s Department, he
distributed court subpoenas to officers on his shift. He agreed that he was subpoenaed to
appear in court for Appellant’s case on July 16, 2003, and was then served with a subpoena
on July 17, 2003, to appear in court on August 15, 2003. He acknowledged that he worked
the night shift on July 16 and August 15, 2003.
Sergeant Evans testified that he was served with a federal lawsuit after the incident.
He said that he met with Carlton Bryant, an attorney who worked with the Knox County
Sheriff’s Department, on or about May 4, 2004, so that Mr. Bryant could help him
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understand the lawsuit. He agreed that after he and Mr. Bryant met, he went with Officer
Tipton and Officer Gresham to the District Attorney’s Office on the same day. He agreed
that he was represented in the civil suit by Knox County Law Director John Owens and by
Robert Watson, who was appointed by Knox County.
Sergeant Evans testified that he could see eight people in Appellant’s apartment the
first time he went to the door. He estimated that the door was thirty-four inches wide. He
agreed that in his deposition testimony, he said that after he grabbed Appellant’s arm, he
would not let it go despite Appellant’s attempt to pull it back. He said that once he and
Appellant were on the ground, Appellant kicked at Officer Gresham. He stated that after
Appellant was on the floor, the officers handcuffed him within five or six seconds and that
Appellant did not fight during the seconds he was being handcuffed. He denied that there
was a fight with Appellant after he took control of Appellant’s arm. He said he never saw
an officer strike Appellant.
Sergeant Evans testified that Frank Vettori was another attorney representing him in
the civil case. He said that the Knox County Sheriff’s Department took no disciplinary action
against him. He identified a card sent to him by Steve Williams, the owner of Fox Lake. He
identified a suspect information document from the Sheriff’s Department and admitted that
he had never seen the type of facial and head injuries shown on the document occur as a
result of handcuffing a person.
On redirect examination, Sergeant Evans testified that he was not on duty on May 10,
2003, but that Officers Tipton and Gresham were. He said that one of the officers was
assigned to the area that contained Fox Lake and one was assigned to an adjoining area. He
said that he received a copy of the federal civil lawsuit through his interdepartmental mail.
On recross-examination, Sergeant Evans testified that he told the Sheriff’s Department
attorney and his other attorneys the truth when he discussed the case.
Thomas Eric Tipton testified that on May 10, 2003, he was an officer with the Knox
County Sheriff’s Department. He stated that he left the Sheriff’s Department in November
2003 to become a real estate agent. He said that he was dispatched to a disturbance at Fox
Lake in the early morning hours of May 10, 2003.
Officer Tipton testified that when he arrived at Fox Lake, he saw Sergeant Evans
standing outside his patrol car and Officer Gresham arriving in another patrol car. He said
he heard what he thought was loud music coming from the third floor of the building and saw
Appellant pacing back and forth on the balcony. He said he heard the sound as he was
driving up with his car window down. He stated that as he listened to the “music,” he
realized that it was “pornographic” and that it was coming from external speakers on the
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balcony.
Officer Tipton testified that when he pointed to Appellant while talking to Sergeant
Evans, Appellant flipped a cigarette butt off the balcony at him and yelled, “F*** you.” He
said that he, Sergeant Evans, and Officer Gresham went to Appellant’s doorway with him
in front so that the occupants would see a fully uniformed officer. He stated that when he
knocked on the doorway, Appellant appeared. He said that his gun was on his left side and
that he turned his left side away from Appellant to keep his gun as far from Appellant as
possible. He said that Appellant took a “stagger step” and a “defensive stance” in the
doorway with his hands above waist level.
Officer Tipton testified that he saw Appellant’s hands come toward Sergeant Evans
and saw Sergeant Evans secure the hand that came closest to him. He said that when
Appellant pulled back, Sergeant Evans crossed over the threshold. He said that he
immediately went into the apartment to assist Sergeant Evans and that he tried to secure
Appellant’s free hand as Sergeant Evans tried to hold onto the other hand. He said he was
trying to get both of Appellant’s hands behind his back and that Appellant flailed with the
unrestrained arm going back and forth. He said that they were struggling between the
threshold and a tiny, dimly lit hallway and that all three were bouncing into walls.
Officer Tipton testified that he, Sergeant Evans, and Appellant fell to the ground in
the hallway and that while on the ground, he was still attempting to secure Appellant’s hand.
He said that he helped handcuff Appellant but that he did not remember if the handcuffs were
his or another officer’s. He stated that Appellant was lying face-down after he was
handcuffed. He said he walked five or six feet away from Appellant and looked out the
doorway to make sure that no one escaped the apartment. He said that for security reasons,
the other two officers searched places in the apartment that were big enough to hide a person.
He said that he and the other officers helped Appellant to his feet and assisted him down the
stairs.
Officer Tipton testified that he saw a television in the apartment. He said it was clear
that there was something pornographic playing on the television and that the sound coming
from the external speakers was also coming from the television.
Officer Tipton testified that after he and the other officers took Appellant down the
stairs, they placed him in the back of a patrol car. He said Appellant complained of pain in
his shoulder. He said that they called dispatch for an ambulance and that the ambulance
personnel checked Appellant and said he seemed to be okay. He stated that Appellant
requested further medical attention and that the ambulance took him to the hospital with
Sergeant Evans riding with him. He said that he followed the ambulance to Parkwest
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Hospital but did not see Appellant again after they arrived.
Officer Tipton testified that he completed the paperwork on the incident and told the
magistrate about it. He said that he received a subpoena to testify in sessions court about
Appellant’s case and that he responded that he was available and on duty for the court date.
He said his name was on the log as available for court but that he was never called to testify.
On cross-examination, Officer Tipton testified that he noted the time of his call to Fox
Lake on the arrest report as 2:17 a.m. He agreed that the arrest report did not mention
pornographic sounds and instead said that Appellant was “yelling and causing a disturbance.”
He said that he was not wearing black gloves on that night and that he did not remember
seeing black gloves on the other officers. He said that about a minute passed between the
time he arrived at Fox Lake and when he and the other officers went to Appellant’s door.
He said that when he knocked on the door, he said, “Sheriff’s Department.”
Officer Tipton testified that when Appellant opened the door, he was unsteady on his
feet and that he could see Appellant’s bloodshot eyes. He said that about five seconds passed
between Appellant opening the door and saying something. He stated that he could smell
alcohol as he helped to handcuff Appellant.
Officer Tipton testified that Appellant pulled away from him forcefully as he
attempted to handcuff Appellant. Officer Tipton said he “was bounced down the hall with
force.” He said that Appellant’s doorway measured “thirty-something” inches and that the
hallway was slightly wider. At the trial, Officer Tipton looked at a ruler in comparison to
Appellant and said that Appellant appeared to be thirty-two inches wide. He denied knowing
that anyone’s head was pushed into the wall during the struggle, but he remembered being
“smacked” into the wall.
Officer Tipton testified that after he stopped working for the Sheriff’s Department,
the sheriff’s secretary called him to come in and meet with Mr. Bryant. He said that he was
never served with the civil lawsuit but that before he received the call from the sheriff’s
secretary, a family member notified him of the newspaper article about the lawsuit. He
agreed that he, Mr. Bryant, Sergeant Evans, and Officer Gresham subsequently met at the
District Attorney’s Office.
Officer Tipton testified that when he met with the other officers at the District
Attorney’s Office, he had not seen the arrest report or warrants charging Appellant since the
night he completed them and that he was not shown the documents during the meeting. He
said he did not appear before the grand jury. He said that there were two lines on the arrest
report that he had whited out on the night he wrote it. Officer Tipton testified that he,
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Sergeant Evans, and Officer Gresham were in the same room when they were deposed on
April 5, 2005.
Officer Tipton testified that on May 10, 2003, he appeared before a judicial
commissioner and prepared and swore to warrants charging Appellant with disorderly
conduct, resisting arrest, and public intoxication. He said that the charge of resisting arrest
was because Appellant had assaulted Sergeant Evans but that he did not want to “stack[]
charges” on Appellant by also charging him with assault.
Officer Tipton testified that in response to the subpoena to appear in court on July 16,
2003, he either appeared at the courthouse or called and said that he was available to drive
in and testify if needed. He stated that he did not receive a second subpoena that was dated
July 17, 2003. He said that he met with an attorney, Mr. Watson, twice and that Officer
Gresham was there both times but Sergeant Evans only once.
Knox County Sheriff’s Department Officer Benjamin Gresham testified that he was
on duty on May 10, 2003, and that he was called to back up another officer at Fox Lake. He
said he parked his patrol car behind Sergeant Evans’s car and saw Appellant pacing on the
third-floor balcony. He stated that Sergeant Evans pointed at Appellant and that Appellant
flipped a cigarette butt to the parking lot and yelled, “F*** you.”
Officer Gresham testified that from the parking lot, he heard “pornographic noises”
coming from the apartment and that Appellant and another person were on the balcony. He
said that Officer Tipton knocked on the door and yelled, “Sheriff’s Department.” He said
that when the officers were at the door, he was on the right and could see the window but not
the full doorway. He said that Appellant opened the door and that he saw Appellant’s hand
come out with an “enclosed fist.” He stated that Sergeant Evans grabbed Appellant’s arm
and that they were pulled into the apartment.
Officer Gresham testified that from what he could see, Sergeant Evans and Officer
Tipton were each trying to restrain one of Appellant’s arms. He said that during the struggle,
which lasted seven to ten seconds, he grabbed one of Appellant’s feet and bent it back toward
his buttocks in an attempt to make Appellant stop struggling.
Officer Gresham testified that after Appellant was handcuffed, he and Sergeant Evans
“did a sweep” of the apartment to make sure that no one else was there. He stated that the
loud noise was coming from the television and that he unplugged it. He said that he could
smell alcohol on Appellant as he took Appellant to a patrol car. He said that when he asked
Appellant if he was all right, Appellant responded by making a comment about Officer
Gresham’s weight. He said he walked away from Appellant at that point and left the scene
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a couple of minutes later.
On cross-examination, Officer Gresham reviewed a diagram he drew during his
deposition that showed the officers’ positions at Appellant’s door. At defense counsel’s
request, Officer Gresham, Sergeant Evans, Officer Tipton, and Appellant all stood in the
positions on the diagram. Officer Gresham stated that from his position at the door, he could
see Appellant’s arm from the middle of the forearm to the hand. He agreed that if Appellant
had stepped outside the door, he would have seen Appellant’s full body. He said he saw
Sergeant Evans grab Appellant’s arm. He stated that when the officers and Appellant entered
the hall, there was very little room and that he “piled” onto the floor with the other officers
and Appellant.
Officer Gresham testified that the only physical contact he had with Appellant was
when he pushed Appellant’s foot toward his buttocks during the struggle in the hall. He said
that his purpose in taking Appellant’s foot was to inflict pain so that Appellant would give
up his arms to be handcuffed. He said Appellant was holding his unrestrained arm under his
chest.
Officer Gresham testified that when he and Officer Tipton made a sweep of
Appellant’s apartment, they looked in closets but did not take out belongings and did not
touch dressers or beds. He denied ripping Appellant’s shirt and did not remember the shirt
being ripped when Appellant was sitting in the patrol car. He stated that Appellant did not
assault him.
Officer Gresham testified that Sergeant Evans testified before the grand jury and
presented the charges against Appellant. On redirect examination, Officer Gresham testified
that he did not prepare the indictment.
Linda Guile Johnson testified that her apartment was located one floor below and to
the left of Appellant’s apartment. She said that on May 10, 2003, she was awakened by loud
talking in the parking lot and loud music that seemed to be coming from the apartment
directly on top of hers. She said that it sounded like a party was going on in the parking lot
and that she heard bottles breaking there. She said that the music sounded like rock-n-roll,
but she did not recognize it as pornographic. She stated that her mother lived with her and
that by the time she woke up, her mother had called the police. She said that the disturbance
stopped after the police arrived and that police officers did not come to her apartment to ask
about her mother’s complaint.
On cross-examination, Ms. Johnson testified that she did not look out the window
when she heard the noise and that she was able to go back to sleep after the noise stopped.
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Knox County Chief Deputy Law Director John Edward Owings testified that he
represented Knox County in a civil suit filed by Appellant against the county. He stated that
he also represented Sergeant Evans and Officers Tipton and Gresham in their official
capacities. He identified the original booking photograph of Appellant, provided to him by
the Sheriff’s Department. He identified the original arrest report for the May 10, 2003
incident.
Deputy Clerk Barbara Witt, a supervisor with the Criminal Division of the Knox
County General Sessions Court, testified that she was subpoenaed to bring records pertaining
to warrants charging Appellant with resisting arrest, public intoxication, and disorderly
conduct. She produced the warrants for the three charges and said that the warrants included
any documents pertaining to the case.
Defense counsel recalled Officer Gresham, who identified a subpoena issued to him
for Appellant’s court date on July 16, 2003, and a second subpoena issued for Appellant’s
court date on August 15, 2003. He said that “not on court date” had been stamped on the
bottom of the first subpoena but that he did not know who stamped it. He stated that the
phrase meant that the date did not fall on one of the days the Sheriff’s Department listed as
convenient for him to appear in court, which were usually those when he was assigned to the
day shift. He said that he did not receive the subpoena for either court date. Officer
Gresham reviewed payroll sheets for those dates and said that he was on a holiday on July
16, 2003, but was working the day shift on August 15, 2003.
Susan Grady Correro testified that she worked as the property manager for Fox Lake.
Ms. Correro said that she hired Sergeant Evans as a courtesy officer at Fox Lake and that the
position was typically filled by a police officer. She stated that in exchange for his services,
Fox Lake gave Sergeant Evans free rent on an apartment that rented for $670 a month in
2003.
Ms. Correro testified that when a resident had a problem, he or she called the
apartment office number, which was directed to an answering service. She said that someone
at the answering service then called the appropriate employee, which for a noise complaint
would be a courtesy officer. She identified a log report of the pager calls from the apartment
building for May 10, 2003, including three complaints from Gail Johnson to the courtesy
officer about loud music from neighbors. On cross-examination, Ms. Correro testified that
Sergeant Evans received the noise complaint calls on May 10, 2003, when the answering
service notified him.
Steve Edward Williams testified that he was a member in Fox Lake General
Partnership Condominiums, which owned Fox Lake. He stated that he read about the civil
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lawsuit against Fox Lake either in the newspaper or online. He said that he talked with
Sergeant Evans about what had happened on May 10, 2003, after he learned about the civil
lawsuit. He said he talked to his attorneys after learning about the civil lawsuit but that he
did not talk to the county’s attorneys.
Mr. Williams identified a letter that he wrote to Sheriff Tim Hutchison on May 13,
2004. He read the letter, which stated: “Tim, Thank You and our staff for protecting us @
Fox Lake. The DA’s failure to prosecute Harvey left us (the Williams Co.) your officers, and
yourself open to the ridiculous lawsuit filed against all of us. Thank you again! Steve.”
Mr. Williams identified a letter that he wrote to Sergeant Evans on May 13, 2004. He
read the letter, which stated: “Mike, Thank you for your professional handling of this Harvey
matter. I appreciate your protection of Fox Lake residents and Fox Lake staff. Thank you
for moving so fast to right this wrong that Harvey and Moncier have initiated . Steve” Mr.
Williams said that Sergeant Evans helped him gather information and prepare a defense after
learning about the civil lawsuit. On cross-examination, Mr. Williams testified that he did not
live at Fox Lake and did not know Appellant.
Appellant’s sister, Lori Renee Ingram, testified that on May 10, 2003, she went to
Parkwest Hospital to see her brother but was only able to speak to him by cellular telephone
and see him when an officer escorted him to a police vehicle in handcuffs. She said that she
did not hear anything in Appellant’s voice to indicate that he was intoxicated. She said
Appellant had bruises all over his face and a cut on his forehead. She said that she saw
Appellant later that day when he was released from jail and that, although his face was more
swollen, his injuries were the same. On cross-examination, Ms. Ingram testified that she was
not at Fox Lake on May 9 or 10, 2003, and that she first talked to Appellant on May 10 at
about 4:30 a.m.
Appellant’s sister, Kimberly Norman, testified that on May 10, 2003, she went to
Parkwest Hospital but was only allowed to talk to her brother by cellular telephone. She
stated that his voice did not sound as though he was intoxicated but that he sounded scared.
She said she saw her brother as he left the hospital and that he looked “beaten up.” She
viewed Appellant’s booking photograph and said that she recognized the wounds in the
photograph as those she saw when Appellant left the hospital. On cross-examination, Ms.
Norman testified that she had not seen Appellant on May 9 or 10, 2003, before seeing him
leave the hospital.
Ernest L. Spalding testified that his son and Appellant went to school together and that
he maintained a regular relationship with Appellant. He said that Appellant had a reputation
in the community for being “absolutely truthful” and “very peaceful.” He said that at about
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12:45 a.m. on May 10, 2003, he received a call from Appellant and that Appellant sounded
scared. Mr. Spalding stated that Appellant told him a man banged on the door and said he
was a police officer but had no badge. Mr. Spalding said Appellant told him that he had
opened the door and then shut it. He said he told Appellant to turn out the lights and go to
bed. He said that Appellant did not sound intoxicated.
Mr. Spalding testified that about ten minutes later, Appellant called him again and said
that two or three police cars were there and that the officers were gathering and putting on
gloves. He said he advised Appellant not to open the door and to go to bed. He stated that
he did not hear any music or background noise during the calls. He said that he heard
banging on Appellant’s door and a voice saying, “[c]ome outside,” and that he heard
Appellant say, “[n]o, I ain’t coming out there.” He said he heard what sounded like a door
slamming open and a scuffling noise before the phone went dead. He said that Appellant
called him at 3:30 or 4:00 a.m. on May 10 to say that he was in the hospital and that the
officers beat him up and tried to kill him.
On cross-examination, Mr. Spalding testified that when Appellant called him,
Appellant said he was standing by the glass doors in his living room and looking out at the
police cars in the parking lot. Mr. Spalding agreed that he was not at Appellant’s apartment
on May 9 or 10. He said that he heard “dead silence” in the background until he heard the
banging on the door. He said that starting at about age twenty, Appellant had lived with him
and was like a stepson to him.
Appellant’s father, Gary Harvey, testified that both he and Appellant were milkmen
with Mayfield Dairies. He said that at about 4:30 a.m., he, his wife, two daughters, and other
son went to Parkwest Hospital in response to a call from Mr. Spalding. He said he was not
allowed to see Appellant until an officer took him from the hospital to a police vehicle. He
said Appellant was walking normally but looked like he had been beaten. He said
Appellant’s tee-shirt was torn and hanging down on his shoulder. He viewed the booking
photograph and said Appellant’s injuries in the photograph looked similar to those Appellant
had when he left the hospital.
Mr. Harvey testified that at 8:30 or 9:00 a.m., he went to Appellant’s apartment and
found it to be a “wreck.” He said that clothes were thrown everywhere, beds were messed
up, drawers were pulled out, black marks were on the hallway wall, and a hole was in the
wall. He identified photographs he took of the apartment on that day and pointed out the
black marks and hole. He said that the hole was at a height of about five feet, five inches and
that it was half an inch to an inch deep. He said a picture he took of the television and stereo
showed black marks and “scuffle marks” on the wall. He identified the cord on a stereo
speaker as being five to six feet long and too short to reach the balcony. He said there were
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no speakers on the balcony.
Mr. Harvey testified that after Appellant was released from jail at 2:00 or 3:00 p.m.,
he took Appellant to Baptist Hospital. He identified two photographs he took of Appellant
and one of Appellant’s shirt at Baptist Hospital. He noted a rip on the right arm of the shirt
toward the collar in the photograph. He identified the shirt itself, which was admitted into
evidence.
On cross-examination, Mr. Harvey testified that he had never been to Appellant’s
apartment before that day but that Appellant was neat in his housekeeping practices when he
lived in Mr. Harvey’s home. He admitted that Appellant had not lived with him for the last
ten years and that he never met Appellant’s roommate. He said that the last time he saw
Appellant before the incident was at work on May 9. He said he was sure that the tee-shirt
admitted into evidence was the one his son wore at Parkwest Hospital on that morning, but
he agreed that he did not know when the shirt was torn.
Christopher John Stewart testified that he worked with Appellant for almost six years
and was his roommate on the night in question. He said that after work on May 9, he and
Appellant helped two men and a woman move into a nearby apartment. He said he and
Appellant went to a restaurant, Julio Between the Buns, with six to eight friends and shared
one pitcher of beer. He stated that he and Appellant returned to their apartment between
12:30 and 1:00 a.m. and that they talked for a while with people across from them who were
playing music. He said that after those people went to bed, he and Appellant invited the new
neighbors to their apartment and that one man and one woman came over.
Mr. Stewart testified that when their guests came over, he and Appellant played hip-
hop dance music on their stereo. He denied that the music was pornographic. He stated that
their guests stayed about thirty minutes and that as they were leaving, the woman came back
to say that there was someone at the door. He said he was sitting on the couch as Appellant
answered the door to a man who said that he was a security guard and off-duty policeman
and that there had been noise complaints.
Mr. Stewart testified that the officer tried to enter the apartment, pointed at him, and
yelled, “[d]o you live here?” He said that the officer angrily said that if they did not tell him
who lived in the apartment, he was getting warrants and taking them to jail. Mr. Stewart said
that the officer put his foot in the door and that Appellant tried to shut the door and told the
officer that he needed to take out his foot. He said that after Appellant pushed the door on
the officer’s foot, the officer pulled out his foot, and Appellant shut the door.
Mr. Stewart testified that he shut off the stereo and television as soon as the officer
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knocked on the door. He said that the stereo was his and that the system included five
speakers and one subwoofer. He said that the subwoofer sat on the floor beside the
television, two speakers were mounted on the wall behind the television, one sat on top of
the television, and two were mounted on the back wall. He stated that none of the speakers
would reach the patio door. He said that to unplug the stereo, a person would have to move
the entire entertainment center.
Mr. Stewart testified that after the officer left, Appellant called Mr. Spalding. Mr.
Stewart said that he turned off the lights and sat on the porch to smoke a cigarette. He said
he saw two police cars pull into the driveway and told Appellant that he was leaving because
the officers were angry. He stated that the neighborhood was quiet when the police cars
arrived. He said that two officers talked to the one who had been at the door and that those
officers reached into their cars for what looked like black gloves. He said that Appellant
never said “F*** you” to anyone that night and that there was no pornographic music
playing. He said Appellant was not intoxicated.
Mr. Stewart testified that when the officers began to climb the stairs, he went out the
front door and down the back stairs. He said he sat at the back side of the apartment and did
not hear what happened until he heard an ambulance arrive. He said that he thought the
officers might be looking for him and that he stayed hidden under a car while he watched the
officers talk to Appellant in a patrol car and put him in the ambulance. He stated that after
the ambulance left, he stayed hidden for about fifteen minutes because he knew that if they
put Appellant in an ambulance, “they’d put me in one.”
Mr. Stewart testified that when he went back to his apartment, the door was open,
every light was on, drawers were open, and clothes and towels were pulled out or turned
over. He said that when he left earlier, the lights were off and the apartment was clean. He
said that the hallway wall had black marks on it and a big hole in it that were not there
before. He identified the photographs of the hall taken by Mr. Harvey and said that the
marks and hole in the photograph were those he saw when he returned to the apartment.
Mr. Stewart testified that when he next saw Appellant, Appellant had bruises all over
his face, rashes around his back and side, and an eye that was almost swollen shut. He said
that Appellant did not have those injuries before the incident. He acknowledged that he and
Appellant went before a judicial magistrate in Knox County to apply for a warrant charging
the officers with assault.
On cross-examination, Mr. Stewart testified that when Sergeant Evans came to the
door the first time, Sergeant Evans said that there had been noise complaints all night about
their apartment. Mr. Stewart said that he and Appellant had not turned on the music until
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between 12:30 and 1:00 a.m. He said that he stayed away from the apartment for about an
hour after he left, including the time that the ambulance was in the parking lot.
Appellant testified that he had never been in a fight before the night in question. He
said that on the evening of May 9, he went to Julio Between the Buns with Mr. Stewart and
about eight other people. He said he and Mr. Stewart returned to their apartment complex
afterward and talked to someone in another apartment who was playing music. He said that
he then went to his apartment while Mr. Stewart invited the people they had helped move
earlier that evening. He said he, Mr. Stewart, and a man and woman then sat in the
apartment, talking and listening to hip-hop music. He denied that the music was
pornographic.
Appellant testified that as the guests began to leave the apartment, the woman came
back to tell him that someone was at the door. He said that he went to the door and that a
man wearing a Sheriff’s Department black polo shirt was there and told him that there had
been a noise complaint. He said that he told the officer that the music was not on and that
the officer told him in a “mean voice” to turn it down.
Appellant testified that the officer tried to come into the apartment by putting his foot
in the door. He said that he shut the door on the officer’s foot and that the officer said that
he needed to come in. Appellant said he told the officer that he had no warrant or reason to
come in. He said that the officer responded that he would have a warrant in five minutes.
Appellant testified that after the officer left, he called Mr. Spalding and then stood in
the doorway of his balcony. He said that Mr. Stewart had turned off the stereo and that
nothing was playing. He said he saw two other officers pull up, talk to the courtesy officer,
and put on black gloves. He said he then called Mr. Spalding again.
Appellant testified that he had never said “F*** you” to anyone and that there was no
pornographic music or movie playing that night. He said that no one flipped a cigarette off
the balcony and that there were no speakers on the balcony. He said that he was terrified as
the three officers came up the stairs toward his apartment. He said that he called Mr.
Spalding a second time and that as he was on the telephone, the officers knocked on his door.
He said that even though Mr. Spalding told him not to answer the door, he did because he
had done nothing wrong. He said he slid his cellular telephone into his pocket and left it on
because he wanted Mr. Spalding to hear what was happening.
Appellant testified that when he opened the door, one of the officers told him to come
outside. He said that he was right-handed and that when he answered the door, he kept his
right hand on the door handle. He said that when he told the officers that he was not coming
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outside, one of them came in and punched him. He said that he threw up his hands
defensively, fell against the wall, hit his head on the wall, and fell to the ground. He said that
the officers went on top of him and beat him. He said that when his head hit the wall, he saw
stars as though he was almost knocked out. He said that after he fell on the floor, one officer
stood in a bedroom doorway and beat him about the face while the other two were on each
side hitting and kicking him with their boots. He said that he begged them to quit and that
they handcuffed him and searched the apartment.
Appellant testified that the officers picked him up and put him into the back of a squad
car. He said that when Sergeant Evans asked him if he was okay, he said no and that he
needed medical attention. He said that an ambulance came and took him to Parkwest
Hospital, where several x-rays were taken of his head and face. He said that he was at
Parkwest Hospital for about four hours and that when he left, he was taken in handcuffs to
the Knox County Detention Facility. He said he arrived at jail at about 5:00 a.m. and sat in
a holding cell until 2:00 or 3:00 p.m. that day. Appellant testified that his picture was taken
while he was at the jail.
Appellant testified that he was present at a deposition on April 5, 2005. He agreed
that he appeared before a judicial magistrate and presented an affidavit to take out warrants
for assault against the three officers and that the magistrate denied the request to issue the
warrants.
On cross-examination, Appellant testified that his apartment door stayed shut between
the first knock from Sergeant Evans and the second knock when all three officers came to
the door. He said that no officer took his arm until he was handcuffed because both arms
were pinned under his stomach while he and the officers were on the ground in the hall. He
stated that when one of the officers hit him, he “flew” back, hit his head on the wall, and fell
to the ground with his arms under his body to catch himself. He said that the officers jumped
on top of him when he fell on the floor. He said that the officers did not touch his arms and
handcuff him until he asked them to “please quit.” He admitted that there was a struggle.
He said that he did not played loud music, throw cigarettes, or use profanity that night.
ANALYSIS
I. DISMISSAL OF DISORDERLY CONDUCT CHARGE (Issues 1 and 2)
Appellant contends that the disorderly conduct charge in count four should have been
dismissed because the presentment failed to mention certain elements, including the
necessary mens rea. Alternatively, he contends that count four should have been dismissed
because Tennessee Code Annotated section 39-17-305(b) is unconstitutionally vague. The
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State rejects both contentions. We agree with the State. To explain why, we must first
determine the necessary elements of disorderly conduct as it was charged in this case. Only
then can we analyze whether the statute is unconstitutionally vague and whether the
presentment is sufficient.
A. Elements Of Disorderly Conduct In Count Four
We begin, as we must, with the statute. Section 305 states:
(a) A person commits an offense who, in a public place and with intent to
cause public annoyance or alarm:
(1) Engages in fighting or in violent or threatening behavior;
(2) Refuses to obey an official order to disperse issued to maintain
public safety in dangerous proximity to a fire, hazard or other
emergency; or
(3) Creates a hazardous or physically offensive condition by any act
that serves no legitimate purpose.
(b) A person also violates this section who makes unreasonable noise that
prevents others from carrying on lawful activities.
(c) A violation of this section is a Class C misdemeanor.
Tenn. Code Ann. § 39-17-305. Appellant asserts that subsection (b) is merely a continuation
of subsection (a), and thus a (b) violation requires proof of all of the elements listed in (a).
That reading borders on the nonsensical. First, a plain reading of the statute excludes
Appellant’s interpretation. Subsection (a) begins with, “[a] person commits an offense who,”
and then proceeds to list certain conduct along with geographic and scienter limits.
Subsection (b) then begins with, “[a] person also violates this section who,” and outlines an
additional type of conduct. Id. at (b) (emphasis added). That introduction signals that
subsection (b) is independent from (a).
Second, the structure of the statute further indicates that (a) and (b) describe two
different types of disorderly conduct. Subsection (a) defines a necessary mens rea (“intent
to cause public annoyance or alarm”) and a necessary location (“in a public place”). It then
contains a colon, followed by three types of conduct, all of which are listed in the alternative
and all of which require the mens rea and location given before the colon. The final
alternative, subsection (a)(3), is proceeded by the conjunction “or.” The list concludes with
a period. This structure conveys that (a) is a discrete prohibition. If (b) were simply a
continuation of (a), and thus required (a)’s culpability and geographic elements, it would be
included as one of the alternatives listed after the colon; but, it is not. As if that were not
enough, it also includes the “also violates” introduction to prevent any lingering confusion.
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In short, Appellant’s interpretation of the statute cannot withstand a plain reading.
We therefore conclude that subsection (b) is independent of (a). Thus, (b) does not
require that the conduct occur in a public place or that the actor have an intent to cause public
annoyance or alarm. Instead, a person engages in disorderly conduct “who makes
unreasonable noise that prevents others from carrying on lawful activities.” Id. at (b).
Appellant correctly notes that (b) does not provide a culpable mental state. When a statute
does not expressly require nor plainly dispense with the requirement of a mental state,
“intent, knowledge or recklessness suffices to establish the culpable mental state.” Id. § 39-
11-301(c).
Appellant contends that severing (a) from (b) renders subsection (b) unconstitutionally
vague and overbroad because the term “unreasonable noise” and the required culpability are
ambiguous. To survive a constitutional challenge for vagueness, “[a penal] statute must
‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly.’” State v. Lakatos, 900 S.W.2d 699, 701 (Tenn. Crim. App.
1994) (quoting Grayned v. City of Rockford, 408 U .S. 104, 108 (1972)). “The constitutional
test for vagueness is whether a statute’s prohibitions are not clearly defined and are thus
susceptible to different interpretations as to what conduct the statute actually proscribes.”
State v. Whitehead, 43 S.W.3d 921, 928 (Tenn. Crim. App. 2000). Yet we do not judge the
constitutionality of a statute by theorizing all of its possible applications to determine if any
application of the statute could be unconstitutional. Statutes are to be construed in the light
of reason. See State v. Netto, 486 S.W.2d 725, 728 (Tenn. 1972). Due process does not
require that a statute be drafted with absolute precision. See State v. McDonald, 534 S.W.2d
650, 651-52 (Tenn. 1979). A statute may prohibit some conduct with sufficient clarity,
although it may be vague if applied to other conduct. See State v. Butler, 880 S.W.2d 395,
397 (Tenn. Crim. App. 1994). Thus, absent substantial effect upon the exercise of First
Amendment privileges or other fundamental liberties, and absent vagueness as to all its
applications, a defendant’s challenge to a statute is limited to Appellant’s own conduct. See
State v. Alcorn, 741 S.W.2d 135, 139 (Tenn. Crim. App. 1987).
This court has considered Tennessee Code Annotated section 39-17-305(b) many
times and made determinations of what conduct its provisions proscribe. See State v. Alice
Cook, No. M1999-00174-CCA-R3-CD, 2000 WL 127285, at *2 (Tenn. Crim. App. at
Nashville, Feb. 4, 2000) (holding that a woman made an unreasonable noise sufficient to
uphold a conviction for disorderly conduct when she sat on the floor and repeatedly screamed
at hospital security guards so loudly it disrupted emergency room services); State v. Ralph
Moore, Jr., No. 03C01-9904-CR-00133, 1999 WL 1125235, at *2 (Tenn. Crim. App. at
Knoxville, Dec. 9, 1999) (holding that a man made unreasonable noise sufficient to uphold
a conviction for disorderly conduct when he repeatedly screamed profanities at police
-18-
officers in a manner that prevented them from conducting an investigation); see also State
v. Buford C. Throneberry, No. M2008-00464-CCA-R3-CD, 2009 WL 103630, at *3-4
(Tenn. Crim. App. at Nashville, Jan. 12, 2009) (holding that although the facts showed
Appellant repeatedly yelled at a police officer, the evidence did not sustain a conviction for
disorderly conduct because it was not established that the yelling interfered with the officer’s
ability to conduct an investigation or other lawful activities). These cases demonstrate that
the term “unreasonable noise” must be read in conjunction with the remainder of the section
to determine what conduct it proscribes: an unreasonable noise must be one sufficient to
prevent others from carrying on lawful activities. We hold that Tennessee Code Annotated
section 39-17-305(b) uses words of common usage with a well understood and generally
accepted meaning and enables men of common intelligence to understand what conduct is
prohibited. It provides “legally fixed standards” and does not “leav[e] to the personal
predilections of an officer the determination of the illegality of conduct.” State v. Harton,
108 S.W.3d 253, 259 (Tenn. Crim. App. 2002). It is not vague.
Appellant contends that our reading of subsection (b) is obscured by the ambiguity
regarding “[t]he object to which the mental state applies.” He asserts that the intent,
knowledge, or recklessness culpability requirement of section 39-11-301(c) could be inserted
to modify the phrases “make[] unreasonable noise,” Tenn. Code Ann. § 39-17-305(b);
“prevent[] others from carrying on lawful activities,” id.; or—somehow—“intent to cause
public annoyance or alarm,” id. at (a). We disagree for a number of reasons, the strongest
of which being that (a) and (b) are separate, distinct crimes. As between the two (b) phrases,
it is not a close call either. The mens rea clearly does not apply to the phrase “prevents others
from carrying on lawful activities.” The noun that is “prevent[ing]” in (b) is “noise.” So the
only word that can sensibly be modified by section 301(c)’s mens rea is “makes.” Appellant’s
argument to the contrary is unpersuasive.
Finally, in conjunction with his vagueness argument, Appellant briefly asserts that,
if subsection (b) is distinct from (a), then (b) is overbroad because the phrase “unreasonable
noise” relies on the subjective determination of those that are disturbed. The State contends
that this is merely a repackaged vagueness argument, and we agree. To the extent Appellant
raises an overbreadth argument against our construction of section 305(b), we are unmoved.
At the outset, we note that the evidence suggests that Appellant’s conduct falls safely
within the clearly prohibited conduct. Giving the State the benefit of all reasonable
inferences, the evidence indicates that Appellant was blaring loud, “pornographic” music
from his back porch in the middle of the night. At least one neighbor repeatedly complained
because Appellant’s conduct kept her from sleeping. Sergeant Evans informed Appellant
that there had been noise complaints. To the extent Appellant could not tell that the music
was unreasonably loud and disturbing his neighbors, Sergeant Evans’s first visit put him on
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notice. But the evidence shows that Appellant did not alter his behavior and may have even
become more rowdy. Thus, if Appellant is to show that section 305(b) is unconstitutionally
overbroad, he must do so by showing a substantial effect on the exercise of First Amendment
privileges or other liberties. See Alcorn, 741 S.W.2d at 139. He does not.
“[A] statute may be challenged as overbroad if it affects a substantial amount of
conduct that is constitutionally protected.” Harton, 108 S.W.3d at 259; see also State v.
Pickett, 211 S.W.3d 696, 702 (Tenn. 2007). But the doctrine “is strong medicine” that
should “be used sparingly and only as a last resort.” Lakatos, 900 S.W.2d at 701 (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)) (quotation marks omitted). As the United
States Supreme Court has noted, some laws may be “too broadly worded” and “may deter
protected speech to some unknown extent” and reach “a point where that effect—at best a
prediction—cannot, with confidence, justify invalidating a statute on its face.” Broadrick,
413 U.S. at 615 (quoted in Lakatos, 900 S.W.2d at 701-02). Despite Appellant’s handful of
scenarios, we are at that point with section 305(b): the claimed deterrence to protected speech
is too speculative to justify invalidation. Regardless, we do not conclude that section
305(b)’s reliance on the term “unreasonably” renders it constitutionally overbroad. Accord
Harton, 108 S.W.3d at 258-60 (upholding as neither vague nor overbroad a statute
prohibiting driving a motor vehicle so as to follow another motor vehicle “more closely than
is reasonable and prudent” (emphasis added)).
B. Sufficiency Of The Presentment
Both the United States and Tennessee constitutions guarantee an accused “the right
to be informed of the nature and cause of the accusation.” State v. Hill, 954 S.W.2d 725, 727
(Tenn. 1997) (citing U.S. Const. amend. VI, XIV; Tenn. Const. art. I, § 9). In Hill, our
supreme court held that “an indictment is valid if it provides sufficient information (1) to
enable the accused to know the accusation to which answer is required, (2) to furnish the
court adequate basis for the entry of a proper judgment, and (3) to protect the accused from
double jeopardy.” Id. A presentment must also state the facts constituting the offense “in
ordinary and concise language, without prolixity or repetition, in a manner so as to enable
a person of common understanding to know what is intended and with that degree of
certainty which will enable the court, on conviction, to pronounce the proper judgment.”
Tenn. Code Ann. § 40-13-202.
“As a general rule, it is sufficient to state the offense charged in the words of the
statute, or words which are the equivalent to the words contained in the statute.” State v.
Griffis, 964 S.W.2d 577, 591 (Tenn. Crim. App. 1997) (footnote omitted). With regard to
offenses that neither expressly require nor plainly dispense with the requirement of a culpable
mental state:
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an indictment which fails to allege such mental state will be sufficient to
support prosecution and conviction for that offense so long as
(1) the language of the indictment is sufficient to meet the
constitutional requirements of notice to the accused of the
charge against which the accused must defend, adequate basis
for entry of a proper judgment, and protection from double
jeopardy;
(2) the form of the indictment meets the requirements of Tenn.
Code. Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct
alleged.
Hill, 954 S.W.2d at 726-27. In State v. Carter, our supreme court expanded its holding in
Hill, stating that if the constitutional and statutory requirements outlined in Hill are satisfied,
an indictment’s reference to the pertinent statute can cure the indictment’s omission of the
required mental state. 988 S.W.2d 145, 148-49 (Tenn. 1999). “Indeed, Hill and its progeny
leave little doubt that indictments which achieve the overriding purpose of notice to the
accused will be considered sufficient to satisfy both constitutional and statutory
requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). Furthermore, “the
degree of strictness [of averment] required in a felony indictment . . . is not required in the
case of a misdemeanor.” State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)).
The presentment in this case stated that “[o]n or about the 10th day of May, 2003 . .
. [Appellant] did unlawfully make unreasonable noise, which prevented other persons to the
Grand Jurors unknown from carrying on lawful activities, in violation of [Tennessee Code
Annotated section] 39-17-305 . . . .”
The presentment provided Appellant sufficient notice to satisfy both constitutional and
statutory requirements. It stated each of the elements of the charged offense using the words
of the statute, gave the date of the offense, and made reference to the pertinent statute. It
sufficiently informed Appellant of the charged offense and provided an adequate basis for
a proper judgment and protection against double jeopardy. See Hill, 954 S.W.2d at 726-27.
Additionally, the presentment used ordinary and concise language to indicate the offense
intended. See Tenn. Code Ann. § 40-13-202. While it did not list a culpable mental state,
its reference to “unreasonable noise” and section 305, from which Appellant could logically
infer the mens rea under Tennessee Code section 39-11-301(c), cured that omission. See
Carter, 988 S.W.2d at 148-49. Appellant is not entitled to relief on this issue.
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II. SUFFICIENCY OF THE EVIDENCE (Issues 3 and 4)
Appellant contends that the evidence was insufficient to sustain his convictions for
disorderly conduct and assault. The State says it was, and we agree.
Our standard of review for sufficiency questions is “whether, after viewing the
evidence in the light most favorable to the prosecution, 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). We must afford the State “the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Questions concerning the credibility of
the witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact, not this court. State v. Morris, 24
S.W.3d 788, 795 (Tenn. 2000).
As explained above, Appellant was convicted of disorderly conduct under Tennessee
Code Annotated section 39-17-305(b), which prohibits “mak[ing] unreasonable noise that
prevents others from carrying on lawful activities.” Appellant contends that there was no
evidence to prove that he made unreasonable noise or, if he did make unreasonable noise,
that it prevented anyone from carrying on a lawful activity.
Appellant relies on State v. Wilson for the principle that proof must be presented that
someone was prevented from engaging in a lawful activity to satisfy the second element of
the statute. See 990 S.W.2d 726, 729-30 (Tenn. Crim. App. 1998) (holding that there was
insufficient evidence of disorderly conduct in the absence of proof that anyone was prevented
from carrying on a lawful activity by Appellant’s loud argument on his porch). Yet there was
sufficient evidence that neighbors were prevented from sleeping by the loud noise that
initially brought officers to Appellant’s apartment. Ms. Johnson testified that she and her
mother were awakened by loud music and lodged a complaint; Ms. Correro testified that the
Johnsons lodged three noise complaints that were conveyed to Sergeant Evans. Moreover,
three officers testified that loud and pornographic noise or music came from Appellant’s
apartment. The evidence thus proved that Appellant was playing some type of loud noise
from his apartment at about 2:00 a.m. and that this noise disturbed his neighbors’ lawful
activities. That is sufficient to sustain Appellant’s conviction for disorderly conduct.
Appellant was convicted of one count of assaulting Sergeant Evans under Tennessee
Code Annotated section 39-13-101(a)(2), which states: “A person commits assault who . .
. [i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury.”
Appellant argues first that the evidence was insufficient because the three officers’
descriptions of Appellant’s actions toward Sergeant Evans were inconsistent. Second,
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Appellant argues that the way in which Sergeant Evans pointed in his civil deposition to
demonstrate Appellant’s actions contradicted his later testimony at trial that Appellant did
not point or gesture but attempted to punch him.
The officers’ testimony described Appellant’s movements variously as a “defensive
stance,” “taking a swing,” an “arm coming forward,” and a “hand [coming] out with an
enclosed fist.” Appellant invokes the “cancellation rule” in an attempt to negate the officers’
testimony. However, in order to invoke that rule, the “mutually contradictory statements”
must have been made “by the same witness.” Church v. Perales, 39 S.W.3d 149, 170 (Tenn.
Ct. App. 2000). We do not read any of the individual officers’ statements to be mutually
inconsistent such that they “cancel or negate each other” as a matter of law. See Bowers v.
Potts, 617 S.W.2d 149, 155 (Tenn. Ct. App. 1981). At most, the statements to which
Appellant points create credibility issues for the jury. To the extent any of the officers’
descriptions of the events at trial contradict prior sworn statements, the contradiction does
not negate the trial testimony because the contradiction was adequately explained and the
trial statements were corroborated by the other officers. See Church, 39 S.W.3d at 170 (“[I]n
order to be disregarded under the so-called cancellation rule, the allegedly contradictory
statements must be unexplained and neither statement can be corroborated by other
competent evidence.”); see also State v. Roger Dale Bennett, No. 01C01-9607-CC-00139,
1998 WL 909487, at *5 n.7 (Tenn. Crim. App. at Nashville, Dec. 31, 1998). We conclude
that the jury had ample opportunity to compare the three officers’ testimony, as well as to
hear Sergeant Evans cross-examined on why he pointed during the deposition. In the light
most favorable to the State, the evidence shows that Appellant made a movement toward
Sergeant Evans that could reasonably place someone in fear of imminent bodily harm.
Appellant next argues that the physical facts rule makes the officers’ testimony
describing an assault on Sergeant Evans a physical impossibility because Appellant could not
have reached Sergeant Evans while holding the door open with his right hand. Our supreme
court has described the physical facts rule as
the accepted proposition that in cases where the testimony of a witness is
entirely irreconcilable with the physical evidence, the testimony can be
disregarded. That is, where the testimony of a witness cannot possibly be true,
is inherently unbelievable, or is opposed to natural laws, courts can declare the
testimony incredible as a matter of law and decline to consider it. . . . [W]here
undisputed physical facts are entirely inconsistent with and opposed to
testimony the physical facts must control. No jury can be allowed to return a
verdict based upon oral testimony which is flatly opposed to physical facts, the
existence of which is incontrovertibly established. Courts have made it clear
that in order for testimony to be considered incredible as a matter of law, it
-23-
must be unbelievable on its face, i.e., testimony as to facts or events that the
witness physically could not have possibly observed or events that could not
have occurred under the laws of nature. Thus, for example, if a witness was
to testify that he saw the sun set in the east, the court would be free to declare
such testimony incredible as a matter of law and disregard it.
State v. Allen, 259 S.W.3d 671, 679-80 (Tenn. 2008) (quotation marks, citations, and ellipses
omitted). The rule applies to criminal cases. See State v. Hornsby, 858 S.W.2d 892, 895
(Tenn. 1993). However, it is available “only where the physical facts at issue are well-
established and universally recognized physical laws.” Allen, 259 S.W.3d at 680 (quotation
marks omitted). It “may not be invoked where its application depends upon assumptions or
calculations based upon estimates as to speed, distance, time, and other such uncertain
matters in the movement of objects.” Id. (quotation marks and brackets omitted); see also
State v. Israel Dean Bolinger, No. E2008-01576-CCA-R3-CD, 2010 WL 2384889, at *6-7
(Tenn. Crim. App. at Knoxville, June 15, 2010). Nor should it be used to disregard testimony
that is capable of different interpretations because the jury is responsible for weighing the
evidence. See Allen, 259 S.W.3d at 681. Thus, our supreme court has instructed that the rule
be used only “sparingly.” Hornsby, 858 S.W.2d at 895.
Because the physical facts rule does not apply to estimates of measurement or
distance, it cannot be used to disregard the testimony concerning the placement of each
person at the door in this case. Nor can it be applied here because the evaluation of the
evidence rests upon “consideration of the comparative credibility of the witnesses.” Id. at
896 (quotation marks and citation omitted).
As to both convictions, we will not invade the province of the jury and reweigh the
witnesses’ testimony. Appellant is not entitled to relief on these issues.
III. SERGEANT EVANS’S CONDUCT AND JUROR RECALL (Issues 5 and 7)
Appellant contends that the trial court erred by not declaring a mistrial because
Sergeant Evans’s conduct caused a juror to be discharged and because an alternate juror was
recalled after being excused. The State contends that the trial court did not err because there
was no manifest necessity for a mistrial. We agree with the State that Appellant was not
entitled to a mistrial based upon Sergeant Evans’s conduct. We also agree with the State that
there was no manifest necessity for a mistrial when a juror was excused for cause during
deliberations. But we agree with Appellant that the trial court’s action thereafter amounted
to structural constitutional error that deprived Appellant his right to a trial by jury.
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A. Background
The record shows that the jury initially retired to deliberate at 11:48 a.m. on August
22. The trial court excused the alternate juror immediately after releasing the jury to
deliberate. After an unrelated conference and a recess, the trial court met with counsel
because the jury foreman had reported a problem. Without the rest of the jury present, Juror
Foster testified that she had overheard a conversation in the hall. She then wrote that she
“heard Sergeant Evans speaking to other officers about black gloves covered red and that he
would rather see ‘Him’ on the ground covered with lime.” Juror Foster said that she had not
discussed what she heard with other jurors but that it had affected her decision.
The prosecutors, defense counsel, and the trial court agreed that Juror Foster could not
continue. Defense counsel argued for a mistrial with prejudice because Sergeant Evans’s
misconduct in the hall had affected the proceedings. Defense counsel offered three possible
resolutions:
First, instruct [Juror Foster] to disregard this and let her continue to sit. Just
give her a very stern instruction and let her continue to sit. Second is to call
the other juror back and let them resume their deliberations. The juror that
was the alternate. And let them resume their deliberations possibly tomorrow
morning with the alternate juror. And thirdly is 11 jurors. . . . [I]f the Court
is going to excuse [Juror Foster], and if the Court is not going to declare a
mistrial with prejudice.
(emphasis added). Defense counsel reiterated these three options moments later:
But now let me make myself clear. I said—I said, number one, let her—give
her a strong admonition to disregard it and, if the Court rejects that, then I
would go to number two, and that is a mistrial with prejudice, because this has
been caused by not only the prosecutor in this case, or not only the alleged
victim in this case, but a State agent. Now, I’m not putting it at the feet of [the
prosecutors]. I am putting it at the feet of a trained law enforcement officer.
. . . Now, the third alternative would be to call the alternate back in and
resume tomorrow morning with 12, including the alternate, or the first—fourth
alternative, which I think would probably be the most expedient, would be to
go with 11 jurors. . . . We don’t want—we don’t want a mistrial without
prejudice. . . . My client can’t afford that.
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(emphasis added). The court excused Juror Foster and recalled the alternate. The court
released the jurors for the day and ordered them to report for deliberation at 9:00 a.m. on
August 23, with the alternate juror joining them.
Prior to reconvening, Appellant filed a motion under Tennessee Rule of Criminal
Procedure 12(a). But when proceedings resumed, the court did not address the motion. It
instead focused on releasing the jury again:
[Court]: All right. Are we ready for the jury?
[State]: Yes, your Honor.
[Court]: All right.
[Defense]: Your Honor, we had filed—
[Court]: I know.
[Defense]: —a reflection of what happened—excuse me?
[Court]: We’ll get to that as soon as I get the jury back to work.
[Defense]: Yes, sir.
[Court]: Bring in the jury.
[Defense]: Is the Court going to voir dire them further on the matters?
[Court]: No. I’ve relieved Juror Foster.
The court added the alternate to the jury and instructed the jury regarding how to proceed.
This is the court’s entire instruction:
All right. Members of the jury, I had to, under the law, relieve Ms. Foster,
who was juror No. 6, and replace her with our alternate. Now, ordinarily, in
the past procedures, this would have been the end. However, the Supreme
Court has provided us with the ability whereby the juror is relieved and our
alternate is utilized. And I’ve done this. However, there is a requirement that
you begin your deliberations again so that the alternate will be brought up
to—what is commonly called “up to speed” with your deliberations. And you
have not been deliberating that long, fortunately, so it should not be that much
trouble. So at this point, I want to release you to your deliberations again.
Thank you.
After the jury was released to deliberate, defense counsel argued Appellant’s motion,
which requested three alternative types of relief: (1) dismiss the case with prejudice; (2)
declare a mistrial; or (3) strike all three officers’ testimony, permit Appellant to present proof
of what Juror Foster heard as newly discovered evidence, and conduct a Rule 24 voir dire to
discover if other jurors heard what Juror Foster did or were affected by it. Importantly, the
motion was not premised upon the argument that substituting the alternate juror was
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somehow improper nor did counsel make that argument. The motion proceeds from the
assumption that the alternate could be substituted. The defense eventually moved for a
mistrial “even without prejudice.” The trial court denied Appellant’s motion. The jury
returned its verdicts at 11:02 a.m.
B. Mistrial – Prosecutorial Misconduct
A mistrial should be declared only if there is a manifest necessity. Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). A manifest necessity exists when there is
“no feasible alternative to halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596
(Tenn. 1981). The decision to grant a mistrial is within the sound discretion of the trial court.
State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This court will not
disturb that decision unless there is an abuse of discretion. State v. Williams, 929 S.W.2d
385, 388 (Tenn. Crim. App. 1996).
Appellant first argues that the trial court erred in not granting a mistrial because of
Sergeant Evans’s “prosecutorial misconduct” in making the statement that was overheard by
Juror Foster. The trial court described Sergeant Evans’s comments as “reprehensible” but
denied relief because there was no indication that other jurors heard the comments or were
affected by them.
The comments attributed to Sergeant Evans do not justify a mistrial. See State v.
Millbrooks, 819 S.W.2d 441, 445-46 (Tenn. Crim. App. 1991); Tenn. R. Crim. P. 24(g). The
comments did not represent prosecutorial misconduct because Sergeant Evans was a
prosecuting witness and a victim—not a prosecutor. Further, there is no evidence that
Sergeant Evans was under the prosecutors’ control or in their presence when the statement
was made. The trial court did not abuse its discretion in refusing to declare a mistrial based
on prosecutorial misconduct.
C. Mistrial – Recall and Substitution of an Excused Juror
Appellant next argues that the trial court erred in not granting a mistrial after
substituting a previously excused alternate for the disqualified juror. The State argues that
Appellant waived his objection by suggesting the substitution, waiting to argue his motion
on the topic until after the jury had retired a second time, and not expressly objecting to the
substitution. We conclude that Appellant did not waive this issue and that the trial court’s
procedure violated Appellant’s constitutional and statutory rights. Consequently, Appellant’s
convictions must be reversed, and the case must be remanded for a new trial.
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Tennessee Rule of Criminal Procedure 24(f)(2) addresses the permissible methods for
selecting and impaneling alternate jurors. It does not provide a procedure for substituting a
juror after deliberations begin. At the time of Appellant’s trial, however, the Code provided
that “[s]hould a juror, either in a civil or criminal action, during the process of a trial, become
so unwell that, in the opinion of the court, the juror is unable to serve, the juror may be
discharged, and another juror summoned instanter, impaneled, and the trial recommenced.”
Tenn. Code Ann. § 22-2-312 (1994) (amended 2008, effective January 1, 2009, to delete this
option in its entirety); see also State v. Bobo, 814 S.W.2d 353, 355 (Tenn. 1991).
Additionally, our supreme court has said that another permissible procedure is “to discharge
the entire panel, declare a mistrial, and continue the cause.” Id. at 355. The choice of which
option to pursue is a matter for the trial court’s discretion. See id. at 355-56. Furthermore,
a defendant may waive his right to a twelve-member jury (or any jury at all) and consent to
go forward with eleven jurors. See id. at 359; see also Tenn. R. Crim. P. 23.
As detailed below, the trial court did not take any of these options. That was error.
Yet it was an error made at the urging of defense counsel. Consequently, the State contends,
Appellant has waived any right to complain.
Although the State is correct that defense counsel helped lead the court to this dead
end, we do not think that means Appellant waived the issue. First, Appellant’s primary
request during this episode was for a mistrial—albeit not for the right reason. The suggestion
to substitute the alternate was Appellant’s backup plan. Second, and more importantly, we
do not believe that counsel’s argument was sufficient to waive Appellant’s constitutional
right to a jury trial. Bobo is directly on point. There, a juror in a murder trial speculated
during deliberations about whether the defendant had killed her cousin. Bobo, 814 S.W.2d
at 354. Despite counsel’s misgivings about continuing the trial, the defendant testified that
he did not object to substituting the alternate and continuing deliberations. Id. at 358-59.
Even with that testimony, our supreme court held that the defendant had not waived his
constitutional right to a jury trial:
Of course, it is the prerogative of every criminal defendant to waive his right
to trial by jury. If the defendant sees fit to waive his right, it is permissible
provided the waiver is made in accordance with the safeguards provided by the
constitution and implementing statutes or rules of criminal procedure. If the
defendant[] could waive the jury entirely, it stands to reason that [he] could
have consented to a trial by the remaining eleven jurors. But, Rule 23 of the
Tennessee Rules of Criminal Procedure requires that waivers of trial by jury
must be made in writing and with the approval of the court and the consent of
the district attorney general. Without formal compliance with Rule 23, the
record should clearly show a voluntary relinquishment of the rights to be tried
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by a common law jury. We cannot find that voluntary relinquishment on the
record before us.
Id. at 359 (citations omitted). Because the defendant in Bobo took the stand and personally
stated that he did not object to continuing deliberations with the alternate, Bobo makes a
more compelling case for waiver than does this one. Nevertheless, our supreme court
rejected the waiver argument. Id. We reject it as well.
Because Appellant did not waive his right to a jury trial or consent to proceed with
eleven jurors, the trial court should have exercised one of two options, either of which
involved presenting the evidence anew to a twelve-member jury. Bobo describes those two
options, only one of which includes a mistrial. Under the law as it existed at the time of
Appellant’s trial, it was within the trial court’s discretion to deny Appellant’s motion for a
mistrial and proceed by calling a new juror and starting the process over as if no proof had
yet been received. Thus, the trial court’s denial of Appellant’s motion for a mistrial was not
erroneous.
Yet the trial court’s procedures from that point on were erroneous. The trial court
substituted a previously discharged juror and instructed the jury to restart its deliberations.
That procedure is not only unauthorized by statute or rule, but it was specifically condemned
by our supreme court in Bobo. 814 S.W.2d at 355-56. Bobo noted that “any alternate not
replacing a regular juror shall be discharged when the jury retires to consider its verdict.”
Id. at 355. The trial court in the instant case expressly and properly discharged the alternate
juror after releasing the jury to deliberate. “At that point, the discharged alternate is no
longer a member of the jury since the function of an alternate juror ceases when the case had
been finally submitted.” Id. (citing Patten v. State, 426 S.W.2d 503 (Tenn. 1968)). In short,
the procedure the trial court used to later recall the alternate was incorrect.
At this juncture, the question is whether the trial court’s error was simply procedural
(subject to harmless error analysis) or structural (necessitating reversal regardless of
prejudice). See id. at 355-58. Bobo hints that some replacement juror errors like this one are
merely procedural. Id. at 356 (explaining that its particular “violation of our statutory
guidelines and rules . . . reache[d] past the statutory and procedural framework . . . and
encroache[d] upon certain constitutional guaranties”). There the error violated the
defendant’s state constitutional right to a jury trial, which the court described as follows:
Under Article I, § 6 of our constitution, the right of trial by jury must be
preserved inviolate. This means that it must be preserved as it existed at
common law at the time of formation of the constitution. Among the
essentials of the right to trial by jury is the right guaranteed to every litigant in
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jury cases to have the facts involved tried and determined by twelve jurors.
Similarly, a litigant has the constitutional right to have all issues of fact
submitted to the same jury at the same time.
Id. at 356 (citations omitted).
In explaining how the trial court error in Bobo rose to the level of a violation of this
right, the court explained that “[i]t is clear that thirteen jurors participated in the deliberative
process, although only twelve ultimately cast a vote.” Id. Yet, “it [was] not at all certain that
the alternate juror . . . took part in all the deliberations.” Id. That is because
without an explicit instruction to [begin the deliberations anew] from the trial
judge, we cannot assume that the reconstituted jury panel started from the
beginning. Thus, the substitution of jurors after final submission of the case,
coupled with the trial court’s failure to instruct the jury to begin deliberations
anew, violated [the] defendant’s right to a trial by jury under Article I, § 6 of
the Tennessee Constitution.
Id. (emphasis added). This indicates that the improper substitution combined with the failure
to give an instruction is what transformed the Bobo error from a procedural one into a
constitutional one. Conversely, it implies that the substitution was simply a procedural error
if made in conjunction with a sufficient instruction. Bobo’s discussion of the rules in other
jurisdictions lends support for that reading. See id. at 357 (noting that the rules in other
jurisdictions “[have] been interpreted as requiring a clear and unequivocal instruction from
the court that, where an alternate is substituted for a regular juror after deliberations have
begun, the jury must begin its deliberations anew”) (emphasis added).
Despite those indications that Bobo stands for the proposition that such procedural
errors can be saved from becoming structural constitutional errors by a sufficient instruction,
the opinion later suggests that is not the case. In holding that the Bobo error was structural,
the court reasoned that “[i]t is impossible to say that the remaining eleven jurors would be
capable of disregarding their prior deliberations, even with an instruction to do so, and
become receptive to the alternate’s attempt to assert a view that might be non-conforming.”
Id. at 358 (emphasis added). That reasoning counsels against finding such substitution errors
can ever be merely procedural.
Fortunately, this case does not demand we clarify this ambiguity. Even if we were to
conclude that some substitution errors are only procedural, the instruction in this case does
not pull this error into that category. The court’s instruction that “there is a requirement that
you begin your deliberations again so that the alternate will be brought up to—what is
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commonly called ‘up to speed’ with your deliberations,” which “fortunately . . . should not
be that much trouble,” combined with the court’s closing that “at this point, I want to release
you to your deliberations again,” does not clearly and unequivocally instruct the jury to begin
its deliberations anew. Read generously, it could be given that meaning. However,
especially given the court’s instruction to bring the alternate “up to speed,” it more naturally
reads as though the alternate is to be briefed on what has transpired in the deliberations rather
than as though the deliberations are to start again from scratch. We therefore conclude that,
to the extent an instruction can save a juror substitution error from being a structural
constitutional error, the trial court’s instructions in this case were deficient.
We therefore conclude that the trial court erred in substituting the alternate juror for
the disqualified juror. That error violated Appellant’s state constitutional right to a jury trial.
“[A]ny errors affecting the constitutional right to trial by jury will result in such prejudice to
the judicial process that automatic reversal is required.” Bobo, 814 S.W.2d at 358. In short,
this was a structural error requiring automatic reversal. See id. The judgments must
therefore be reversed.
D. Double Jeopardy
Having determined that the trial court erred in substituting the discharged alternate in
the middle of deliberations, we must now consider whether Appellant’s constitutional
protections against double jeopardy bar retrial. We conclude that they do not.
Under the Double Jeopardy clause of the Fifth Amendment to the United States
Constitution, which is applicable to the states through the Fourteenth Amendment, no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Similarly,
article I, section 10 of the Tennessee Constitution states that “no person shall, for the same
offence, be twice put in jeopardy of life or limb.” These clauses protect an accused from: (1)
a second prosecution following an acquittal; (2) a second prosecution following conviction;
and (3) multiple punishments for the same offense. State v. Denton, 938 S.W.2d 373, 378
(Tenn. 1996). As this court recently explained:
The protection from multiple prosecutions embodied in the double jeopardy
clauses of both the state and federal constitutions encompasses the defendant’s
right to have his trial completed before a particular tribunal. The Supreme
Court enumerated the reasons why this valued right merits constitutional
protection:
Even if the first trial is not completed, a second prosecution may
be grossly unfair. It increases the financial and emotional
burden on the accused, prolongs the period in which he is
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stigmatized by an unresolved accusation of wrongdoing, and
may even enhance the risk that an innocent defendant may be
convicted. The danger of such unfairness to the defendant exists
whenever a trial is aborted before it is completed. Consequently,
as a general rule, the prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial. [Arizona v.
Washington, 434 U.S. 497, 503-05 (1978)].
State v. Rocky Joe Houston, __S.W.3d__, No. E2009-00352-CCA-R9-CD, 2010 WL
744412, at *10 (Tenn. Crim. App. at Knoxville, Mar. 3, 2010) (quotation marks, citations,
and brackets omitted).
However, “[t]here are recognized exceptions to the prohibition against double
jeopardy.” Ahern v. Ahern, 15 S.W.3d 73, 80 (Tenn. 2000). Foremost, perhaps, is the
provision that a reversal for trial error does not normally bar a retrial. See, e.g., State v.
Hutcherson, 790 S.W.2d 532, 534 (Tenn.1990).
Also, “a retrial is permitted when the defendant has actively sought or consented to
a mistrial.” Id. In addition, “[r]etrial may be permitted if the termination of the proceedings
was caused by error or misconduct of the defense counsel and there was no feasible
alternative to halting the proceedings.” Knight, 616 S.W.2d at 596. Furthermore, a party
cannot “stand silently by while the trial court commits an error in procedure,” thereby
depriving the trial court of “an opportunity to cure a situation that one or both parties
perceive to be in error.” State v. Mounce, 859 S.W.2d 319, 323 (Tenn. 1993).
Although defense counsel did not commit misconduct, these exceptions apply to allow
retrial here. At a minimum, defense counsel consented to a mistrial. See Ahern, 15 S.W.3d
at 80; accord Knight, 616 S.W.2d at 596 (finding the prohibition on double jeopardy did not
apply where, even though counsel “cannot be said to have objected to the erroneous action
of the court,” but “[h]e actively [sought] such dismissal and in no sense did he seek to
preserve appellant’s right to have trial on the merits occur before the jury which had been
impaneled to try the case”). Not only did counsel not object to the errant substitution, it led
the court to the error by recommending that procedure. Accord Mounce, 859 S.W.2d at 322-
23 (“[W]hen a defendant chooses not to object to the mistrial and give the trial court an
opportunity to correct the error, consent [to a second trial] may be inferred and, therefore,
double jeopardy will not bar a subsequent prosecution.”). Consequently, we conclude that
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Appellant’s constitutional protections against double jeopardy do not prohibit a new trial in
this case.1
IV. PROSECUTORIAL MISCONDUCT (Issue 6)
Appellant contends that the State committed misconduct by prosecuting Appellant for
assaulting Officer Gresham even though the victim previously denied being assaulted.
Appellant argues that the prosecutors knew of Officer Gresham’s sworn denial but persisted
with the charge in an effort to “overcharge” Appellant and bolster the State’s case for the
other assault counts. The State responds that it was appropriate to try Appellant on the
charges for which the grand jury found probable cause. We agree with the State.
Tennessee courts have referred to overcharging as a prosecutorial practice of charging
a defendant with a greater charge in seeking a conviction for a lesser-included offense. See
State v. Adler, 92 S.W.3d 397, 403 (Tenn. 2002) (holding that a defendant is entitled to have
an indictment for a greater offense expunged when he is convicted of a lesser-included
offense because of the permanent harm possible to a defendant from overcharging). In
contrast, the prosecutors in this case brought charges for three counts of the same crime
against Appellant because the grand jury found probable cause that each of the three officers
who faced Appellant at his door was placed in fear of imminent bodily harm. At the trial,
Officer Gresham testified that he was not in fear and did not believe he had been assaulted.
The trial court dismissed the charge at the close the State’s case.
Prosecutorial misconduct does not constitute reversible error unless the outcome was
affected to Appellant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001).
Appellant requests that his convictions on other charges be overturned because he was
charged with assault of Officer Gresham. Yet Appellant points to no prejudice, aside from
a bald assertion that the prosecutors tried to “bolster their case” on other counts. On review,
we conclude that there was no prejudicial effect on Appellant as a result of the dismissed
charge. Appellant is not entitled to relief on this issue.
V. JURY INSTRUCTION ISSUES (Issues 8, 9, 10, 11)
A. Failure To Give Counsel Written Jury Instructions
Appellant contends that the trial court erred by not giving him a written copy of the
jury instructions before closing argument. The State contends that the trial court satisfied the
1
This analysis does not, however, apply to counts three and five, which were dismissed by the trial
court at the close of the State’s proof. The double jeopardy clauses bar retrial on those counts.
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Tennessee Rule of Criminal Procedure 30(a)(3) and was not required to provide full written
instructions before closing argument. We agree with the State.
With regard to requests for special jury instructions, Rule 30(a)(3) states:
Prior to counsels’ closing jury arguments, the court shall inform counsel of its
proposed action on:
(A) the requests for jury instructions; and
(B) any other portion of the instructions concerning which
inquiries are made.
This rule does not require the trial judge to provide counsel with full written jury instructions
before closing argument. See State v. McKinney, 605 S.W.2d 842, 847 (Tenn. Crim. App.
1980); see also State v. Torrez Talley, No. W2003-02237-CCA-R3-CD, 2006 WL 2947435,
at *19 (Tenn. Crim. App. at Jackson, Oct. 16, 2006). Furthermore, this is a misdemeanor
case. To read Rule 30 to require the trial court give counsel written instructions prior to
closing would run head-long into subsection (c), which provides that “[i]n the trial of all
felonies . . . every word of the judge’s instructions shall be reduced to writing before being
given to the jury.” Subsection (c) makes clear that the Rule does not contemplate that the
instructions in misdemeanor cases are always even put in writing.
The trial court held a hearing in which it addressed each of Appellant’s requested jury
instructions. The court informed Appellant of its action on his requests, stating:
here are the instructions that you requested that I will instruct: the Pattern
Instructions concerning self-defense; evidence of good character; and the
instruction that you submitted, “lawful resistance to the commission of a public
offense may be made by the party about to be injured or by others.” Those I
will instruct.
The trial court complied with Rule 30(a)(3) by informing Appellant of its action with regard
to requested jury instructions. Appellant was entitled to nothing more.
B. Incorrect And Incomplete Jury Instructions
Appellant next contends that the trial court erred by (1) giving incorrect and
incomplete jury instructions regarding reasonable doubt and self-defense and (2) refusing to
instruct the jury on lawful resistance to injury to property as well as the difference between
his defenses of lawful resistance and self-defense. The State contends that the jury
instructions were proper. We agree with the State.
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In criminal cases, the trial court has the duty to charge the jury on all of the law that
applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). Appellant also “has a right to have
every issue of fact raised by the evidence and material to his defense submitted to the jury
upon proper instructions by the judge.” Thompson, 519 S.W.2d at 792; see also Tenn. Code
Ann. § 39-11-203(c) (a defendant is entitled to have a defense submitted to the jury when it
is fairly raised by the proof). However, an erroneous jury instruction is subject to a harmless
error analysis. See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000).
A jury instruction must be reviewed relative to the instructions in their entirety and
read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004).
“An instruction should be considered prejudicially erroneous only if the jury charge, when
read as a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable
law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d
93, 101 (Tenn. 1998)).
1. Reasonable doubt instruction
“The beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires them
to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). “[S]o long as the
court instructs the jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, the Constitution does not require that any particular form of words be used
in advising the jury of the government’s burden of proof.” Id. (citations omitted).
The trial court instructed the jury on the reasonable doubt standard, stating:
The State has the burden of proving the guilt of [Appellant] beyond a
reasonable doubt, and this burden never shifts, but remains on the State
throughout the trial of the case. A defendant is not required to prove his
innocence.
A reasonable doubt [is] a fair, honest doubt growing out of the evidence
or lack of evidence. It is not an imaginary or possible doubt, but a doubt based
on reason and common sense. It is not necessary that [Appellant’s] guilt be
proved beyond a possible doubt, as absolute certainty of guilt is not demanded
by the law to convict of any criminal charge.
A reasonable doubt is just that, a doubt that is reasonable after a careful
and considered examination of the facts and circumstances of this case.
If you find the State has not proven every element of the offense beyond
a reasonable doubt, then you should find Appellant not guilty.
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We note that this instruction is substantially similar to the reasonable doubt standard
contained in former versions of the pattern jury instructions:
A reasonable doubt is a doubt based upon reason and common sense
after careful and impartial consideration of all the evidence in this case.
It is not necessary that the defendant’s guilt be proved beyond all
possible doubt, as absolute certainty of guilt is not demanded by the law to
convict of any criminal charge.
A reasonable doubt is just that—a doubt that is reasonable after an
examination of all the facts in the case.
If you find that the state has not proven every element of the offense
beyond a reasonable doubt, then you should find the defendant not guilty.
7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 2.03(a) (4th ed.). This court has upheld the
constitutionality and sufficiency of this instruction on multiple occasions. See, e.g., State v.
Rico L. Raybon, No. W2001-01303-CCA-R3-CD, 2002 WL 1482719, at *4-5 (Tenn. Crim.
App. at Jackson, Mar. 25, 2002); State v. Avis Neal, No. W2001-00374-CCA-R3-CD, 2002
WL 1558621, at *3-4 (Tenn. Crim. App. at Jackson, Jan 28, 2002). The instruction “tracks
virtually identical language of pattern reasonable doubt instructions approved by a majority
of the federal circuits.” State v. Melvin Edward Henning, No. 02CO1-9703-CC-00126, 1997
WL 661455, at *9 (Tenn. Crim. App. at Jackson Oct. 24, 1997) (citing cases). When read
as a whole, the trial court’s instruction fairly submitted the legal issue and did not mislead
the jury as to the applicable law.
2. Self-defense instruction
Appellant contends that the trial court erred by using a pattern self-defense instruction
that improperly included the term “assault” and by using a pattern instruction provision
regarding the use of force against a law enforcement officer making an arrest or search. The
State contends that the self-defense instruction was proper and consistent with pattern jury
instructions upheld by this court. We agree with the State.
With regard to Appellant’s claim that the court used a pattern self-defense instruction
that improperly includes the term “assault,” we note that the court used the pattern jury
instruction in effect at the time of Appellant’s offense. See 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.—Crim. 40.06 (8th ed.) (“When a person is assaulted, by [the use of force] [attempted
use of force] in such a way as to create in [his] [her] mind a reasonable belief that [he] [she]
is in imminent and actual danger of [death] [serious bodily injury], [he] [she] will be justified
in using force to defend [himself] [herself], even to the extent of killing another human
being.”). This court has held that the pattern jury instruction used by the trial court is “an
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accurate statement of the law regarding self-defense.” State v. Inlow, 52 S.W.3d 101, 107
(Tenn. Crim. App. 2000). As a result, Appellant is not entitled to relief on this issue.
With regard to Appellant’s claim that the trial court erred by including in the
self-defense instruction a provision regarding the use of force against a law enforcement
officer, the record reflects that Appellant requested the trial court to instruct the jury on the
provision that he now claims was improperly charged. In Appellant’s motion requesting
special jury instructions, Appellant requested the court to instruct the jury on self-defense,
including the portion stating:
The threat or use of force against another is not justified to resist a halt at a
roadblock, arrest, search, or stop and frisk that the person knows is being made
by a law enforcement officer, unless:
(1) The law enforcement officer uses or attempts to use greater
force than necessary to make the arrest, search, stop and frisk,
or halt; and
(2) The person reasonably believes that the force is immediately
necessary to protect against the law enforcement officer’s use or
attempted use of greater force than necessary.
When a defendant requests a special jury instruction, he may not assert that the court
erred in giving the charge as requested. See McKinney, 605 S.W.2d at 847 (“[Because] the
charge which the appellant now protests incorporated a portion of one of his own special
requests . . . he will not be heard to complain on appeal.”). As a result, the trial court did not
err by including in the self-defense instruction the provision regarding the use of force
against a law enforcement officer. The self-defense instruction in its entirety fairly submitted
the legal issues and did not mislead the jury as to the applicable law.
3. Lawful resistence to injury to property instruction
Appellant contends that the trial court erred by refusing to instruct the jury on the
defense of lawful resistance to injury to property. The State argues that Appellant was not
entitled to the instruction. We agree with the State.
An instruction on a defense must be given if fairly raised by the proof regardless of
whether the defense relies on the theory or requests that an instruction be given as to that
theory. See State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001); see also State v. Allen, 69 S.W.3d
181, 187-88 (Tenn. 2002) . “In determining whether a defense instruction is raised by the
evidence, the court must examine the evidence in the light most favorable to the defendant
to determine whether there is evidence that reasonable minds could accept as to that
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defense.” Sims, 45 S.W.3d at 9. If evidence has been presented that reasonable minds could
accept as a defense, “the accused is entitled to the appropriate instructions.” Johnson v.
State, 531 S.W.2d 558, 559 (Tenn. 1975).
Tennessee Code Annotated section 38-2-101 states that “[l]awful resistance to the
commission of a public offense may be made by the party about to be injured, or by others.”
Such resistence “to prevent the offense may be made by the party about to be injured to
prevent an [o]ffense against the party’s person; or [i]llegal attempt by force to take or injure
property in the party’s lawful possession.” Id. at § 102 (colon and subsection numbers
omitted). The trial court charged the jury on sections 101 and 102(1) but rejected Appellant’s
request to charge the jury on section 102(2) because the evidence did not show that the police
officers threatened Appellant’s property.
Appellant argues that the proof fairly raised the issue of an illegal attempt by force to
injure property in his possession because it showed that Sergeant Evans attempted to enter
his apartment by putting his foot in the doorway and because the officers eventually entered
and searched his apartment. Taken in the light most favorable to Appellant, the evidence
reflects that the officers attempted to enter Appellant’s apartment in order to investigate a
noise complaint and that any search of or damage to Appellant’s apartment was done after
arresting Appellant. The evidence does not fairly raise the issue that the officers attempted
to enter his apartment by force to take or injure property in Appellant’s lawful possession.
As a result, the trial court properly refused to charge the jury on section 38-2-102(2). See
Allen, 69 S.W.3d at 187-88; Sims, 45 S.W.3d at 9.
4. Instruction regarding difference between self-defense and lawful resistance
Appellant contends that trial court erred by refusing to instruct the jury on the
difference between lawful resistance and self-defense. The State contends that the court
properly instructed the jury on both and was not required to give the instruction that
Appellant requested. We agree with the State.
“A trial judge should properly instruct the jury on the law governing issues raised by
the evidence introduced at trial. When the trial judge gives instructions that correctly, fully,
and fairly set forth the applicable law, it is not error to refuse to give a special requested
instruction.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); see also State
v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001) (“Denial of a special or additional instruction
is error only if the trial court’s jury charge does not fully and fairly state the applicable
law.”).
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The record reflects that the trial court gave extensive jury instructions regarding self-
defense that closely followed the pattern jury instruction in effect at the time of Appellant’s
offense. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 40.06 (8th ed.). As noted above,
this pattern jury instruction is “an accurate statement of the law regarding self-defense.”
Inlow, 52 S.W.3d at 107. The trial court also gave jury instructions regarding lawful
resistance, stating, “[l]awful resistance to the commission of a public offense may be made
by the party about to be injured or by others. Resistance sufficient to prevent the offense may
be made by the other party about to be injured to prevent an offense against the party’s
person.” This instruction mirrors the language of Tennessee Code Annotated sections 38-2-
101 and -102(1). Because the jury instructions on self-defense and lawful resistance fully
and fairly stated the applicable law, we hold that the trial court did not err by refusing to give
a special instruction on the difference between the two defenses.
VI. EXCLUSION OF NEWSPAPER ARTICLES (Issue 12)
Appellant contends that the trial court erroneously excluded newspaper articles about
the underlying offense as hearsay evidence and that this exclusion denied him the
constitutional right to present a complete defense. The State contends that the articles were
properly excluded as hearsay and did not deprive Appellant of the right to a complete defense
because the excluded articles were not critical to his defense. We agree with the State.
Hearsay is an out-of-court statement offered in court “to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). The Rules of Evidence provide that “[h]earsay is not
admissible except as provided by these rules or otherwise by law.” Id. 802. “[A] newspaper
article is not admissible evidence under the hearsay rule.” State v. Henretta, 325 S.W.3d 112,
2010 WL 3852043, at *24 (Tenn. 2010) (citing State v. George E. Martin, Jr., No.
02C01-9512-CC-00389, 1997 WL 471158, at *6 (Tenn. Crim. App. at Jackson, Aug. 18,
1997) (“[T]he content of newspaper articles is hearsay that does not fall within an exception
to the hearsay rule.”)).
Although Appellant argues that he sought to introduce these articles pursuant to
Tennessee Rule of Evidence 616 to show witness bias and prejudice, the record reflects that
Appellant sought to introduce these articles as a public record or report pursuant to
Tennessee Rule of Evidence 803(8). Furthermore, Appellant sought to introduce these
articles to establish the dates and sequence of events. These newspaper articles were not
admissible under Tennessee Rule of Evidence 803(8) because they were not created by a
public office or agency and did not “set[] forth . . . matters observed pursuant to a duty
imposed by law as to which matters there was a duty to report.” Tenn. R. Evid. 803(8).
These articles were hearsay not falling within an exception to the hearsay rule. We conclude
that the trial court did not err by excluding this evidence on the basis of hearsay.
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Having determined that the evidence was inadmissible hearsay, we turn to Appellant’s
constitutional arguments. The “Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment clearly guarantee a criminal defendant the right to present a
defense.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). In appropriate cases, this right
surpasses the hearsay rules. See id. at 433. However, in many other situations, Appellant’s
due process right “must yield to other legitimate interests in the criminal trial process,”
including “established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” Id. at 432 (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 & 302 (1973)) (quotation marks omitted). Our state supreme
court has said:
The facts of each case must be considered carefully to determine whether the
constitutional right to present a defense has been violated by the exclusion of
evidence. Generally, the analysis should consider whether: (1) the excluded
evidence is critical to the defense; (2) the evidence bears sufficient indicia of
reliability; and (3) the interest supporting exclusion of the evidence is
substantially important.
Id. at 433-34 (citing Chambers, 410 U.S. at 298-301).
In the present case, the evidence excluded was not critical to the defense. Appellant
sought to introduce these articles to establish a timeline of events and to establish that the
police officers indicted him on new charges after learning that he filed a lawsuit against
them. The record reflects that Appellant cross-examined the officers regarding the timeline
of events, asked them questions regarding the newspaper articles, and mentioned the dates
of the articles. Appellant also established on cross-examination that the officers were served
with Appellant’s civil lawsuit on the same day (May 5, 2004) that they appeared before a
grand jury, which was the same day the grand jury issued its presentment against Appellant.
As a result, the exclusion of the newspaper articles did not deny Appellant the opportunity
to present pivotal, otherwise unknown, information to the jury.
The interest in excluding unreliable and inaccurate hearsay testimony is an important
one. See generally Neil P. Cohen et al., Tennessee Law of Evidence § 8.01[3][a] (5th ed.
2005). Application of the Rules of Evidence did not deprive Appellant of due process. The
trial court did not deny Appellant the opportunity to establish a timeline of events or present
his theory that the officers indicted him after learning that he filed a civil suit against them.
Given these facts, we hold that the trial court did not infringe upon Appellant’s due process
right to present a defense.
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VII. SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES (Issue 13)
Appellant contends that the trial court violated his Sixth Amendment right to confront
witnesses by erroneously denying him the right to cross-examine Sergeant Evans regarding
his grand jury testimony and to cross-examine Officer Tipton regarding his communication
with attorneys in the civil lawsuit. The State concedes that the trial court erred in denying
cross-examination regarding grand jury testimony but argues that the State did not assert an
attorney-client privilege with Officer Tipton. The State contends that any resulting error was
harmless. We agree that the trial court erred but hold that the errors were harmless.
A defendant’s constitutional right to confront the witnesses against him includes the
right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987); Brown, 29 S.W.3d at 430-31. Denial of Appellant’s right to effective cross-
examination is “constitutional error of the first magnitude” and may violate Appellant’s right
to a fair trial. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980) (quoting Davis
v. Alaska, 415 U.S. 308, 318 (1974)). “The propriety, scope, manner and control of the
cross-examination of witnesses, however, rests within the discretion of the trial court.” State
v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). Furthermore, “a defendant’s
right to confrontation does not preclude a trial court from imposing limits upon cross-
examination which take into account such factors as harassment, prejudice, issue
confrontation, witness safety, or merely repetitive or marginally relevant interrogation.”
State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). We will not disturb the limits
that a trial court has placed upon cross-examination unless the court has unreasonably
restricted the right. Dishman, 915 S.W.2d at 463.
Appellant first argues that his right to confrontation was violated when he was not
allowed to cross-examine Sergeant Evans regarding his grand jury testimony. During
defense counsel’s cross-examination of Sergeant Evans, the State objected to the following
question: “And you testified before the Grand Jury, not that you had a resisting arrest, but
that you were assaulted?” The trial court sustained the objection based on the secrecy of
grand jury proceedings and would not allow defense counsel to cross-examine further on
grand jury testimony.
Tennessee Rule of Criminal Procedure 6(k)(1) states in pertinent part: “Every member
of the grand jury shall keep secret the proceedings of that body and the testimony given
before it.” In the hearing on Appellant’s Motion for New Trial, the State conceded that the
secrecy rule applied to members of the grand jury, not to witnesses, and the succeeding trial
court judge agreed. We conclude that because Rule 6(k)(1) does not apply to grand jury
witnesses’ subsequent statements about their own testimony, the trial court violated
Appellant’s right to confrontation during cross-examination on this issue. See Tenn. R.
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Crim. P. 6(k); see also Butterworth v. Smith, 494 U.S. 624 (1990) (holding a Florida statute
that prohibited grand jury witnesses from speaking about their own testimony to be
unconstitutional). We must now determine the error’s impact on the proceedings.
“[V]iolations of the Confrontation Clause are subject to harmless error review.” State
v. Gomez, 163 S.W.3d 632, 647 (Tenn. 2005), rev’d on other grounds, Gomez v. Tennessee,
127 S. Ct. 1209 (2007); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
Therefore, we must determine whether the constitutional error was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).
In the hearing on the Motion for New Trial, defense counsel explained that by cross-
examining Sergeant Evans on his grand jury testimony regarding his accusations against
Appellant, he hoped to show that Sergeant Evans testified to an alleged assault against
Officer Gresham and that Sergeant Evans was motivated to bring charges by the civil lawsuit
that Appellant brought against the Sheriff’s Department. The trial court denied relief because
the jury heard “a great deal of testimony about bias, prejudice, motives of the various State
witnesses.” The record shows that defense counsel extensively cross-examined all three
officers regarding when they learned of the civil lawsuit and their motives for arresting
Appellant and for testifying. Because the trial court dismissed the charge of assault against
Officer Gresham and because the jury had ample opportunity to hear testimony on bias and
motives, we conclude that the trial court’s exclusion of Sergeant Evans’s grand jury
testimony was harmless beyond a reasonable doubt.
Appellant also argues that his right to confrontation was violated when he was not
allowed to cross-examine Officer Tipton regarding his communication with attorneys about
the civil lawsuit. During cross-examination, Officer Tipton agreed that he met with attorneys
representing him in Appellant’s civil lawsuit against the Sheriff’s Department. Defense
counsel then asked Officer Tipton if he had explained what he meant by “defensive stance”
on his arrest report to his attorneys. After Officer Tipton expressed uncertainty about what
was covered by the attorney-client privilege, the following exchange occurred:
[Witness]: What I reviewed with my attorney in private was attorney client
privileged.
[Defense]: You’re asserting a privilege not to answer that question?
[Witness]: When I discussed that with my attorney, it was in private. And
I think they were very adamant during depositions—
[Defense]: I’m not worried about them, sir. I’m asking you.
[Witness]: I understand that, sir.
[Defense]: Are you saying that you’re asserting an attorney client privilege?
Don’t look at the prosecutors.
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[State]: We’re not asserting any attorney client.
[Witness]: They’re not—
[Defense]: Are you?
[Witness]: With [the witness’s civil attorney] is who I—
[Defense]: If you’re telling me that you’re asserting an attorney client
privilege with what you’re talking to the attorneys . . . in that
case, all you have to do is say, “Yes, I’m asserting an attorney
client privilege.”
[Witness]: I apologize. It’s been awhile since I’ve testified—a long time
since I’ve testified in a court. But what I discussed with them in
private, in their office, I would like to keep that.
[Defense]: So you are asserting a privilege?
[Witness]: Yes, sir.
[Defense]: Move that his testimony be stricken in this case, your Honor. He
has a right to assert his privilege, but when he does, his
testimony must be stricken.
The trial court denied Appellant’s motion to strike Officer Tipton’s testimony. After
a conference held outside the presence of the jury, defense counsel resumed cross-
examination and questioned Officer Tipton extensively regarding what he meant when he
wrote “defensive stance” in the arrest report and how that compared to his deposition and
direct examination testimony.
The attorney-client privilege prohibits an attorney from “giving testimony against a
client or person [whom he] consulted” or from disclosing “any communication” made to the
attorney “during the pendency of the suit, before or afterward, to the person’s injury.” Tenn.
Code Ann. § 23-3-105. The client may not claim the attorney-client privilege as a means of
refusing to disclose a matter during testimony. See Tenn. R. Evid. 501(2). As one of the
prosecutors noted to the trial court, Officer Tipton appeared to be confused about the law
regarding attorney-client privilege when he asserted it in response to defense counsel’s
repeated questions. The trial court allowed the cross-examination to continue after a
conference in which each side accused the other of misconduct and defense counsel moved
for a mistrial. The trial court denied the motion for mistrial and resumed proceedings
without instructing the witness as to the law underpinning the attorney-client privilege.
It is not clear from the record that Officer Tipton would have persisted in not
answering defense counsel’s question regarding his statements to his attorneys if he had
understood the privilege that defense counsel prompted him to assert. The trial court may
have been able to avoid some confusion by giving an explanation of the law, but there was
no error in the court’s denial of Appellant’s motion to strike all of Officer Tipton’s testimony
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because Officer Tipton disclosed what he meant by “defensive stance” in his answers to other
questions on cross-examination.
VIII. JURY SELECTION (Issue 14)
Appellant contends that the trial court abused its discretion by incorrectly limiting the
subject and manner of questioning allowed during jury selection. Appellant argues that the
trial court erred by (1) not allowing defense counsel to make brief, non-argumentative
remarks to potential jurors to explain the general nature of the case; (2) limiting defense
counsel’s questions to potential jurors; (3) not allowing defense counsel to question jurors
individually; (4) using an incorrect standard to determine if jurors were qualified; (5) denying
additional peremptory challenges; and (6) not informing counsel that an alternate juror would
be impaneled in time to allow for an additional peremptory challenge. The State contends
that the trial court did not abuse its discretion in limiting the scope of jury selection
questioning and that Appellant has not shown prejudice. Although we conclude that there
were errors in the voir dire process, we agree with the State.
Control of voir dire is within the sound discretion of the trial court and will not be
found to be in error unless Appellant shows that he was prejudiced. State v. Howell, 868
S.W.2d 238, 247 (Tenn. 1993). Our supreme court has ruled that “[t]he ultimate goal of voir
dire is to insure that jurors are competent, unbiased, and impartial.” State v. Cazes, 875
S.W.2d 253, 262 (Tenn. 1994).
First, Appellant argues that the trial court erred by not allowing defense counsel to
make brief, non-argumentative remarks to potential jurors to explain the general nature of
the case. The State argues that defense counsel did not invoke the right to make introductory
remarks and that Appellant has not shown that he was prejudiced by the trial court’s
description of the general nature of the case. We agree with the State.
Tennessee Rule of Criminal Procedure 24(a)(2) provides that “[a]t or near the
beginning of jury selection, the court shall permit counsel to introduce themselves and make
brief, non-argumentative remarks that inform the potential jurors of the general nature of the
case.”
The record shows the following exchange as the trial court gave counsel instructions
for voir dire:
[Defense]: Would you—do you like us counsel to stand up within a 45
minute—45 second like introduction as to what the case is
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about, the time, place, parties? Very quickly, just to let them
know what the case is about?
[Court]: I think I can handle that.
[Defense]: Okay. All right.
The trial court gave an introduction explaining the charges and the names of the parties
involved. Defense counsel did not request that he be allowed to give further introduction
before or after the court’s comments. Appellant also offers no argument or proof
establishing that he suffered prejudice from allowing the trial court to introduce the nature
of the case. Appellant is not entitled to relief on this issue.
Second, Appellant argues that the trial court improperly limited defense counsel’s
questions to potential jurors regarding court officers, thereby restricting his ability to
determine which potential jurors should be challenged. The State argues that the trial court
acted within its authority by limiting questions to matters relevant to the jurors’
qualifications. We agree with the State.
Appellant relies on Tennessee Code Annotated section 22-3-101, which states,
“attorneys shall have an absolute right to examine prospective jurors . . . notwithstanding any
rule of procedure or practice of court to the contrary.” He also relies on Tennessee Rule of
Criminal Procedure Rule 24(c), which states, “[a]fter the court has tentatively determined
that the jury meets the prescribed qualifications, counsel may conduct further examination.”
The record reflects that defense counsel attempted to ask potential jurors whether they
would be prejudiced by “going to lunch with Knox County Sheriff’s Department Deputies”
or the fact that their “host in this case [would] be Knox County Sheriff’s Department
Deputies.” The trial court sustained an objection to this line of questioning because the host
for the jurors would be the Knox County Government, not the Knox County Sheriff’s
Department, and Knox County Government would be paying for the jurors’ lunches. The
trial court permitted defense counsel to question the jury on their experiences with police
officers, whether the jurors would be influenced at trial by being in the presence of Sheriff’s
Deputies, and whether the jurors had heard of lawsuits against Sheriff’s Deputies. Appellant
has not shown that the trial court abused its discretion in limiting the scope of his questions
or that he suffered prejudice as a result.
Third, Appellant argues that the trial court erred in not allowing defense counsel to
question potential jurors individually at the start of voir dire. The State argues that the trial
court only denied Appellant’s request to question all jurors individually at the beginning of
voir dire and that this denial was not an abuse of discretion. We conclude that Appellant has
not shown an abuse of discretion or that he was prejudiced.
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A defendant is entitled to individual voir dire if a significant possibility exists that a
juror knows about potentially prejudicial information. See State v. Claybook, 736 S.W.2d
95, 100 (Tenn. 1987). The record reflects that the trial court required defense counsel at the
start of voir dire to address questions to the entire jury pool regarding their knowledge of
lawsuits involving the Sheriff’s Department. While most of the jurors mentioned hearing of
such lawsuits generally, only two jurors stated that they had specific knowledge and opinions
relating to these lawsuits. The trial court permitted defense counsel to conduct individual
voir dire with the jurors who expressed knowledge and opinions of lawsuits involving the
Sheriff’s Department. Appellant has not shown that the trial court abused its discretion in
requiring him to address questions to the entire jury before permitting individual voir dire of
jurors who expressed knowledge and opinions of potentially prejudicial information.
Appellant also offers no proof establishing that he suffered prejudice as a result. Appellant
is not entitled to relief on this issue.
Fourth, Appellant contends that the trial court used an incorrect standard to determine
whether jurors were qualified to sit on the jury because it allowed jurors who had heard of
lawsuits against the Sheriff’s Department to sit on the jury and allowed a juror who had a
son-in-law who worked for the Sheriff’s Department to sit on the jury. The State contends
that Appellant has not shown that he was prejudiced. We agree with the State.
Rule 24(c) states that a judge shall excuse a juror for cause if:
(B) The prospective juror’s exposure to potentially prejudicial information
makes the person unacceptable as a juror. The court shall consider both the
degree of exposure and the prospective juror’s testimony as to his or her state
of mind. A prospective juror who states that he or she will be unable to
overcome preconceptions is subject to challenge for cause no matter how slight
the exposure. If the prospective juror has seen or heard and remembers
information that will be developed in the course of trial, or that may be
inadmissible but is not so prejudicial as to create a substantial risk that his or
her judgment will be affected, the prospective juror’s acceptability depends on
whether the court believes the testimony as to impartiality. A prospective juror
who admits to having formed an opinion about the case is subject to challenge
for cause unless the examination shows unequivocally that the prospective
juror can be impartial.
Tenn. R. Crim. P. 24(c)(2)(B). Appellant has not argued what standard the trial court applied
when seating the jurors or how it incorrectly applied Rule 24(c).
While the record reflects that many members of the jury had heard of previous
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lawsuits involving the Sheriff’s Department, the jurors stated that such knowledge would not
prejudice their views of Appellant’s case. Although one juror expressed a negative view of
these lawsuits in general, stating that they were “a big waste of time and money,” the same
juror also stated that the lawsuits were not frivolous and that she “probably would do the
same thing” under the circumstances. None of the jurors expressed an opinion of Appellant’s
case. Furthermore, the juror who stated that her son-in-law worked for the Sheriff’s
Department also stated that her son-in-law worked in the radio shop at the department, that
she never talked with him about his work, and that her relationship with her son-in-law
would not prejudice her ability to serve as a juror. The record reflects that the seated jurors
had minimal exposure to potentially prejudicial information and that they testified that this
exposure would not prejudice or compromise their ability to serve as jurors. Appellant has
not established that the trial court abused its discretion by seating these jurors or that he was
prejudiced as a result. Appellant is not entitled to relief on this issue.
Fifth, Appellant argues that the trial court erred in denying him three additional
peremptory challenges. However, Appellant waived this issue by neglecting to cite any
authority for his claim that the trial court abused its discretion by refusing to grant additional
peremptory challenges. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
Finally, Appellant argues that the trial court erred by not informing counsel that an
alternate juror would be impaneled before the opportunity to exercise an additional
peremptory challenge had passed. The State argues that any error the trial court made by not
informing counsel of the alternate juror was procedural and did not cause prejudice to
Appellant. We agree with the State.
Tennessee Rule of Criminal Procedure 24(e)(4) provides that for each additional juror
selected in addition to the regular jury, “each side is entitled to one peremptory challenge for
each defendant.” Additional jurors are subject to the same challenges as regular jurors. Tenn.
R. Crim. P. 24(f)(1). The right to exercise peremptory challenges necessarily ends when both
sides have accepted the jury.
At the beginning of the trial, the trial court instructed counsel that it would seat twelve
prospective jurors in the jury box and strike jurors from there. The court instructed counsel
to address questions to all eighteen in the jury pool. Once the twelve jurors were chosen and
both sides had exercised their challenges, prosecutors and defense counsel questioned a
prospective alternate juror. But the parties were not informed that they would have an
additional strike until after accepting the first twelve jurors. Ultimately, both sides accepted
the alternate juror.
We conclude that the trial court erred by ending the challenge phase of jury selection
-47-
before selecting the alternate juror and bestowing the additional strike. See Tenn. R. Crim.
P. (24)(e)(4). But to be entitled to relief on this issue, Appellant must show that he was
prejudiced by the composition of the jury. See Howell, 868 S.W.2d at 247. Appellant offers
no proof of actual prejudice, and both sides were subject to the same error. Appellant is not
entitled to relief on this issue.
IX. EXCLUSION OF TESTIMONY AND MOTION TO QUASH (Issue 15)
Appellant contends that his right to present a complete defense was violated when the
trial court excluded Ms. Ingram’s testimony and when the trial court granted the State’s
Motion to Quash subpoenas against Knox County Sheriff Timothy Hutchison, Chief Deputy
Thomas Spangler, and Chief Deputy James J.J. Jones. First, the State contends that
Appellant waived the claim that Ms. Ingram’s testimony had been erroneously excluded by
offering only a conclusory statement to that effect in his brief. Second, the State contends
that Appellant is not entitled to relief based on the quashed subpoenas because the subpoenas
were later served during trial and the witnesses made available. We agree with the State, and
we also conclude that Ms. Ingram’s testimony was not excluded because the trial court
reinstated it before jury deliberations.
Appellant argues that the trial court “improperly struck the testimony of Defense
Witness Lori Ingram because of a dispute as to whether she was in the courtroom during voir
dire.” Appellant cites the trial transcript but gives no other rationale or authority to support
this argument. Moreover, Appellant’s sole citation regarding the exclusion of Ms. Ingram’s
testimony is to the point in the trial transcript when the trial court ordered the jury to
disregard Ms. Ingram’s testimony because she was present during voir dire. He does not cite
the trial court’s order immediately afterward to have the court reporter check the tape of the
proceedings and determine if Tennessee Rule of Evidence 615 (regarding exclusion of
witnesses) was invoked before or after voir dire. He also declines to mention that the trial
court reinstated Ms. Ingram’s testimony when it discovered, before the end of the
proceeding, that the Rule had been invoked after voir dire. See Tenn. R. Evid. 615 (leaving
to the court’s discretion whether the rule is invoked before or after voir dire). Regardless,
Appellant waived this issue by offering no argument or support and by citing only half of the
trial court’s action in the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b); see also State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997) (concluding
that where there was only one reference to the record and no authority cited to support an
issue raised on appeal, it was not the obligation of the appellate court to review the issue as
presented).
As to the State’s Motion to Quash the subpoenas of Sheriff Hutchison, Chief Deputy
Spangler, and Chief Deputy Jones, the court did so on August 19, 2005, when it heard proof
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that the subpoenas had not been served. Appellant is correct that to quash a “properly issued
and executed” subpoena, the trial court must hear evidence to determine whether the
requesting party is abusing the compulsory process, such as by subpoenaing individuals who
are without knowledge of the case. See State v. Womack, 591 S.W.2d 437, 443-44 (Tenn.
Ct. App. 1979). In this case, though, the subpoenas had not been properly executed because
they had not been served.
Immediately after granting the Motion to Quash, the trial court ordered a court officer
to serve the three potential witnesses with subpoenas at defense counsel’s request. All three
witnesses were served and available for the next three days of the trial. Yet despite all of the
fuss, Appellant never called any of them. At the close of Appellant’s case, one of the
prosecutors asked defense counsel if the potential witnesses could be released, and defense
counsel replied, “[c]ertainly.” We conclude that the trial court did not deny Appellant
compulsory process or a complete defense. Appellant is not entitled to relief on this issue.
X. CHANGE OF VENUE (Issue 16)
Appellant contends that the trial court erred by refusing to change the venue of the
trial because of adverse pretrial publicity, adverse financial interests of Knox County
citizens, and the adverse effect caused by the presence of Knox County Sheriff’s deputies
during trial. The State contends that Appellant is not entitled to relief because he has not
shown that the jurors were biased or prejudiced against him. We agree with the State.2
“The ultimate goal of voir dire is to see that jurors are competent, unbiased, and
impartial, and the decision of how to conduct voir dire of prospective jurors rests within the
sound discretion of the trial court.” Howell, 868 S.W.2d at 247. “[J]urors need not . . . be
totally ignorant of the facts and issues” of the case. Murphy v. Florida, 421 U.S. 794, 800
(1975). Indeed, “[t]he mere fact that prospective jurors know something about a case at the
time of impaneling is not unusual,” and such exposure “does not automatically constitute
constitutional error.” State v. Hugueley, 185 S.W.3d 356, 390 (Tenn. 2006). To prohibit the
qualification of a juror with “any preconceived notion as to the guilt or innocence of an
accused . . . would be . . . an impossible standard.” Murphy, 421 U.S. at 800 (quotation
marks omitted). “Accordingly, jurors may sit on a case, even if they have formed an opinion
2
Before we delve into the merits of this claim, we pause to address a disquieting statement in
Appellant’s brief. Nearly a page into Appellant’s seven-page section dealing with venue and the propriety
of the Knox County Sheriffs Department guarding the jury, Appellant informs the court that “[b]ecause of
limitations on pages, [he] adopts the legal authorities cited in the memorandums he filed in support of each
motion.” If Appellant were to leave it at that, it would plainly be inadequate. See Tenn. R. App. P. 27(a)(7);
Tenn. Ct. Crim. App. R. 10(b). However, the remainder of the section refers to a handful of legal authorities.
We conclude that these meager citations are enough to avoid waiving the issue.
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on the merits of the case, if they are able to set that opinion aside and render a verdict based
upon the evidence presented in court.” State v. Mann, 959 S.W.2d 503, 531 (Tenn. 1997);
see also Tenn. R. Crim. P. 24, cmt.
Tennessee Rule of Criminal Procedure 21 provides that a trial court may change venue
“when a fair trial is unlikely because of undue excitement against the defendant in the county
where the offense was committed or for any other cause.” Tenn. R. Crim. P. 21(a). The
decision to change venue rests in the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion. See State v. Crenshaw, 64 S.W.3d 374, 386
(Tenn. Crim. App. 2001). As noted above, the fact that prospective jurors have been exposed
to pre-trial publicity is not sufficient to warrant a venue change. “Moreover, before an
accused is entitled to a reversal of his conviction on the ground that the trial judge
erroneously denied his motion for a change of venue, he must demonstrate that the jurors
who actually sat were biased and/or prejudiced.” Mann, 959 S.W.2d at 532 (quotation
marks, brackets, and ellipses omitted; emphasis added). To be sure, press coverage and
inflammatory publicity can corrupt a trial atmosphere, see, e.g., Dobbert v. Florida, 432 U.S.
282, 303 (1977), but “the court will not presume that the jury’s exposure to news reports
regarding . . . the charged offense without more deprives the defendant of due process,”
Crenshaw, 64 S.W.3d at 387. Indeed, the United States Supreme Court’s recent decision in
the case of former Enron executive Jeffrey Skilling demonstrates that even significant pre-
trial publicity does not necessitate a change of venue. Skilling v. United States, 130 S. Ct.
2896, 2907-25 (2010) (noting, among other things, that “[j]urors . . . need not enter the [jury]
box with empty heads in order to determine the facts impartially”). In short, Appellant has
a very tall burden to overcome in demonstrating that the specific jurors empaneled in his trial
were biased or prejudiced against him. See, e.g., State v. Rogers, 188 S.W.3d 593, 622
(Tenn. 2006); State v. Thacker, 164 S.W.3d 208, 238 (Tenn. 2005); State v. Melson, 638
S.W.2d 342, 360 (Tenn. 1982); Crenshaw, 64 S.W.3d at 386-88.
Our courts have generally relied upon seventeen factors to aid in the evaluation of a
motion for a change of venue. Those factors include the: (1) nature, extent, and timing of
pre-trial publicity; (2) nature of publicity as fair or inflammatory; (3) particular content of the
publicity; (4) degree to which the publicity complained of has permeated the area from which
the venire is drawn; (5) degree to which the publicity circulated outside the area from which
the venire is drawn; (6) time elapsed from the release of the publicity until the trial; (7)
degree of care exercised in the selection of the jury; (8) ease or difficulty in selecting the
jury; (9) veniremen’s familiarity with the publicity and its effect, if any, upon them as shown
through their answers on voir dire; (10) defendant’s utilization of his peremptory challenges;
(11) defendant’s utilization of challenges for cause; (12) participation by police or by
prosecution in the release of publicity; (13) severity of the offense charged; (14) absence or
presence of threats, demonstrations or other hostility against the defendant; (15) size of the
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area from which the venire is drawn; (16) affidavits, hearsay or opinion testimony of
witnesses; and (17) nature of the verdict returned by the trial jury. See State v. Hoover, 594
S.W.2d 743, 746 (Tenn. Crim. App. 1979).
With regard to adverse pretrial publicity, Appellant argues that the jury was prejudiced
because eleven of twelve jurors admitted they had heard of previous lawsuits involving
defense counsel and the Sheriff’s Department and because one seated juror expressed a
negative opinion of those lawsuits during voir dire. We have already addressed this issue
with regard to the jury selection procedures. Furthermore, as we explained above, mere
exposure of the jury to pretrial publicity did not warrant a change of venue, and prejudice
will not be presumed from such exposure. See, e.g., Mann, 959 S.W.2d at 531-32. None of
the jurors indicated that their prior knowledge would prejudice their views of Appellant’s
case. Moreover, while the record reflects that the jurors had heard of previous suits
involving defense counsel, it does not reflect that they were exposed to or prejudiced by
information regarding Appellant’s lawsuit. Appellant has not established that the jury panel
was prejudiced by pretrial publicity.
With regard to adverse financial interests of Knox County citizens, Appellant argues
that the jurors were biased and motivated to convict him because the jurors, as taxpayers of
Knox County, would contribute to any judgment received in Appellant’s civil case. He
argues that there are no unbiased jurors in Knox County because Knox County Code section
2-286 provides that the county will pay any judgments awarded against police officers. The
record does not reflect that the jurors knew of this provision or that it caused them to be
prejudiced against Appellant, and Appellant has not demonstrated otherwise.
Appellant also contends Supreme Court Rule 10, Canon 3(a) (regarding judicial
disqualification) should be extended to the circumstances of this case. We see no need for
such an expansion here nor any authority requiring us to apply the canon. Appellant cites no
authority adopting his position that potential jurors are, as a matter of law, biased in a
criminal trial where their verdict may have some tangential impact on a civil suit arising out
of the same facts for which the jurors’ tax money may go to pay damages if they are later
awarded. Moreover, Appellant has not established that the jury panel was prejudiced by
virtue of being Knox County taxpayers. He is entitled to no relief on that argument.
With regard to juror bias caused by the presence of Knox County Sheriff’s deputies
at trial, Appellant argues that the deputy in charge of the jury had strong personal views
regarding suits against Sheriff’s deputies. Although he argues that jurors must have been
exposed to the deputy’s views because they were in her custody during the five-day trial, he
does not allege any specific instance in which the deputy mentioned her views to the jury.
The record reflects that one juror overheard Sergeant Evans’s improper comment but was
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excused from the jury, removing any prejudicial effect that the comment may have had. The
record does not reflect that the jurors were prejudiced by the presence of Knox County
Sheriff’s deputies at trial, and Appellant has not demonstrated otherwise. Indeed, although
the jury deliberations were faulty, the jury still returned an acquittal, demonstrating that the
jurors did not feel constrained to return guilty verdicts to appease the Sheriff’s Department.
Appellant is not entitled to relief on this issue.
XI. RIGHT TO SPEEDY TRIAL (Issue 17)
Appellant contends that the trial court denied his right to a speedy trial by delaying
thirty-one months before ruling on his motion for new trial. He argues that as a result of the
trial court’s delay, his convictions served as a continuing bar to his civil action against the
arresting officers. The State contends that Appellant is not entitled to relief because he has
not established that he experienced prejudice due to the delay. We agree with the State.
Once the State initiates criminal proceedings, the right to a speedy trial is implicated
under the Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. This is also a statutory right in Tennessee. Tenn. Code Ann. §
40-14-101. In Barker v. Wingo, the Supreme Court devised a balancing test to determine
whether a defendant received a speedy trial and identified the following factors for
consideration: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right to a speedy trial; and (4) the prejudice to the defendant. 407 U.S. 514,
530 (1972). In State v. Bishop, the Tennessee Supreme Court implicitly adopted the Barker
balancing test for our state’s constitutional and statutory right to a speedy trial. 493 S.W.2d
81, 83-85 (Tenn. 1973). We have previously determined that the right to a speedy trial
encompasses the sentencing proceedings in a criminal prosecution. See State v. Joseph Hart,
No. 02C01-9902-CC-00075, 1999 WL 737780, at *3-4 (Tenn. Crim. App. Sept. 20, 1999).
This court has also considered whether the right to a speedy trial was violated when a trial
court delayed three years in ruling on a post-trial motion for a new trial. State v. Thomas Dee
Huskey, No. E1999-00438-CCA-R3-CD, 2002 WL 1400059, at *143-44 (Tenn. Crim. App.
at Knoxville, June 28, 2002).
Appellant does not assert that he has suffered prejudice in his appeal of his assault and
disorderly conduct convictions as a result of the delayed ruling on his motion for new trial.
His claim of prejudice—that his conviction barred his suit in federal court—instead relates
to his civil trial. Appellant has failed to present any prejudice to this case flowing from the
trial court’s delayed ruling. See State v. Wood, 924 S.W.2d 342, 348 (Tenn. 1996)
(describing prejudice “as the most important” factor in the Baker analysis). We conclude that
the delay did not violate Appellant’s rights.
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CONCLUSION
Upon thorough review, the judgments of the trial court are reversed, and this case is
remanded for a new trial. Because counts three and five were dismissed by the trial court at
the close of the State’s proof, Appellant may not be retried on those counts.
___________________________________
NORMA McGEE OGLE, JUDGE
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