State of Tennessee v. Michael W. Gibson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 27, 2004

STATE OF TENNESSEE v. MICHAEL W. GIBSON

Direct Appeal from the Criminal Court for Anderson County
No. A2CR0108 James B. Scott, Jr., Judge

No. E2003-01381-CCA-R3-CD
April 2, 2004

The defendant was convicted of assault, a Class A misdemeanor, for punching a police officer and
was sentenced to eleven months, twenty-nine days, with sixty days to serve before applying for
probation. He raises seven issues on appeal: (1) whether the trial court erred in admitting a tape
recording of the officer’s call to dispatch; (2) whether the trial court erred in failing to instruct the
jury to disregard the dispatcher’s testimony; (3) whether the trial court erred in denying the
defendant’s motion for a mistrial based on the officer’s testimony about her recognition of the
defendant; (4) whether the trial court erred in denying the defendant’s request to publish a second
officer’s supplemental report to the jury; (5) whether the trial court erred in allowing defense
witnesses to be impeached with evidence of other crimes; (6) whether trial counsel provided
ineffective assistance by withdrawing his request to cross-examine police officers regarding prior
complaints against them of excessive force; and (7) whether the evidence was sufficient to sustain
the defendant’s conviction. We find no reversible error in the trial court’s evidentiary rulings and
conclude that the defendant failed to meet his burden of demonstrating ineffective assistance of
counsel. We further conclude there was ample evidence to sustain the defendant’s conviction for
assault. Accordingly, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Charles D. Buckholts (on appeal) and Michael Ritter (at trial), Oak Ridge, Tennessee, for the
appellant, Michael W. Gibson.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
 FACTS

On March 13, 2001, the defendant, Michael W. Gibson, was arrested for assault for striking
Oak Ridge Police Officer Karen Wehenkel as she attempted to search him following her
investigatory stop of his vehicle and as she and a fellow officer tried to place him under arrest. The
defendant’s first prosecution for assault ended in a mistrial when one of his defense witnesses
asserted her Fifth Amendment right against self-incrimination. He was subsequently tried from
September 4-5, 2002, on a charge of aggravated assault, which the trial court reduced to simple
assault following the presentation of the evidence. After deliberating, the jury found the defendant
guilty of assault, a Class A misdemeanor, and the trial court sentenced him to eleven months, twenty-
nine days in the county jail, with the defendant to serve sixty days before applying for probation.
On May 29, 2003, the defendant filed a delayed notice of appeal to this court, challenging the
sufficiency of the evidence in support of his conviction, the effectiveness of counsel, and various
evidentiary rulings by the trial court.1

State’s Proof

The State’s first witness was orthopedic surgeon Dr. Michael Mackay, who testified he
treated Officer Wehenkel from March 27, 2001, when she presented to his office with pain in her
neck and shoulder, until July 9, 2002, when he referred her to a neurosurgeon. During the course
of his treatment, he initially referred her for physical therapy and subsequently performed two
surgeries, both of which were designed to relieve her pain. At the time he released her to return to
work on July 9, 2002, he rated her with a six percent disability of the upper extremity.

Diane Davis, a dispatcher with the Oak Ridge Police Department, identified a tape recording
of the 9-1-1 call she received on March 13, 2001, of shots fired at the Applewood Apartments and
to which she dispatched Officer Karen Wehenkel and Officer Darrell Johnson as backup. She
testified that, to her knowledge, nothing had been omitted from the four- to five-minute transmission
contained on the tape recording, but she could not be sure because she did not create the tape. She
said she communicated with the officers mainly by radio, but sometimes by telephone.

On cross-examination, Davis testified her supervisor excerpted the tape from a larger tape.
She said she did not know if the larger tape was still in existence. She identified the “CAD” or
“computer aided dispatch,” report she created in connection with the shots fired call, on which she
recorded that the original complaint was received at 10:32 p.m. from a woman named Alice Johnson
at 205 Highland Avenue. Davis acknowledged the CAD report did not contain information about
a cell phone call she received from Officer Wehenkel about a woman on the street having reported
to her that she had seen a man beating a woman and shoving her into a yellow Cadillac. Davis said,
however, that the information was on the tape recording, and explained on redirect that it was not

1
The defendant was apparently granted leave to file a delayed appeal following his filing of a petition for post-
conviction relief.

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always possible for her to enter all the relevant information in the computer at the time she took the
calls.

Officer Karen Wehenkel testified she had been in law enforcement for twelve years and an
officer with the Oak Ridge Police Department for the past ten years. She said she first came in
contact with the defendant in 1994. She testified she was dressed in uniform and patrolling alone
in a marked unit on March 13, 2001, when she was dispatched between 10:30 and 11:00 p.m. to
respond to a report of shots fired at the Applewood Apartments, located in the Hillside Road, Hunter
Circle area. As she made her second lap around Hunter Circle, a “very animated,” woman flagged
her down and told her that she had just seen Charles Fulkerson beating a woman and shoving her
into a yellow Cadillac. The woman said she had heard shots fired, but did not know if they were
connected to the Cadillac incident.

Officer Wehenkel further testified that she informed dispatch on her cell phone of what the
woman had reported as she drove toward the stop sign at Hunter Circle and Hillside Road. When
she saw a yellow Cadillac turn the corner onto Hillside Road, she informed dispatch, turned her
patrol car around, and followed the vehicle until it slowed down and moved from the street to a
grassy, gravel area at the end of Hunter Circle. She activated her blue lights to let the driver know
she wanted him to stop and recognized the defendant as the driver when he got out of the vehicle and
started walking toward her patrol car. She informed dispatch who the driver was, threw her phone
down on the seat without disconnecting, got out of her patrol car, and began walking toward the
defendant. The defendant walked to the back of his vehicle and sat on the trunk with his hands on
his knees. She told him about the shots fired report and of the woman who had been seen being
beaten and shoved into a yellow Cadillac by Charles Fulkerson. She asked the defendant if he had
been with Fulkerson, and he replied, “Yes.” However, when she asked if Fulkerson had beaten a
woman and thrown her into a yellow Cadillac, the defendant replied, “No.”

Officer Wehenkel testified she determined she needed to investigate further and, for her
safety, told the defendant that she needed to pat him down for weapons. However, the defendant told
her, “No” and refused to comply when she ordered him to put his feet on the ground, turn around,
and place his hands on the trunk. She reached to pull him off the trunk, and the defendant swung
at her with a closed fist, striking her in the left side of the forehead. She pulled him around to face
the back of his vehicle and again ordered him to place his hands on the trunk. This time he
complied. However, he continued to argue and kept twisting his body around to face her, while at
the same time keeping his hands on the trunk. He also initially refused to spread his legs. However,
as she pushed on his feet with her shoe and repeatedly ordered him to spread his legs, he finally
complied enough for her to do a partial patdown of his left side.

Officer Johnson arrived as she was attempting her patdown and asked if the defendant was
under arrest. She replied, “He is now.” Officer Wehenkel explained she had decided to place the
defendant under arrest when he first struck her, but waited to inform him until her backup arrived.
She said when she told Officer Johnson the defendant was under arrest, the defendant turned
completely around and said, “No.” Officer Johnson ordered him to turn around and put his hands

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behind his back, but he refused. At that point, Officer Johnson sprayed him in the face with pepper
spray. The defendant reacted by kicking at Officer Johnson, and Officer Johnson fell to the ground.
Officer Wehenkel grabbed the defendant and ordered him to put his hands behind his back, and he
began punching her with his fist in the left side of her head, face, and neck, with one of the punches
to her neck causing her left side to go numb and her arm to drop. Officer Johnson got up and tried
to grab hold of the defendant, but fell back out of Officer Wehenkel’s line of sight when the
defendant kicked at him again. The defendant came back at her and she swung at him with her metal
flashlight, aiming for his shoulder but hitting him in the head instead. The defendant looked at her
with wide eyes, shook his head, and came at her again.

Officer Wehenkel testified that Officer Johnson returned with a long baton at about the same
time that she saw some people come out of a duplex to her right. One of the bystanders yelled
something to the defendant that she could not hear, and the defendant got on the ground. However,
when Officer Johnson approached to place handcuffs on him, the defendant kicked at him again and
tried to grab his baton. Officer Johnson retained control of the baton, and the defendant stood. At
that point, the same man who had earlier yelled to the defendant called out to him again, telling him
that he had better do what the officers told him and to get on the ground and let them handcuff him.
Officer Wehenkel testified that the defendant listened to the man, got on the ground, and allowed
himself to be handcuffed. She said she then turned and thanked the bystander for his assistance. She
identified the dispatch tape and testified the tape accurately reflected what transpired during the
incident.

On cross-examination, Officer Wehenkel testified the defendant’s exact response when she
told him she needed to pat him down was, “No, Wehenkel, no.” She said she did not get the name
of the man who assisted her at the scene. She testified her supervisor, Sergeant Nance, asked the
assembled crowd if anyone had witnessed the incident, but only one person came forward to make
a verbal statement. That individual, however, refused to make a written statement. At defense
counsel’s request, Officer Wehenkel read aloud from a letter she wrote to her captain, dated July 24,
2001, in which she stated that the Attorney General’s Office had asked her for a list of possible
witnesses to the incident and that it was her understanding Sergeant Nance had included the names,
addresses, and statements from possible witnesses in a “Use of Force Incident Form.” Officer
Wehenkel explained she had been mistaken when she wrote the letter, and Sergeant Nance had later
informed her he had been unable to locate any witnesses. She denied there was a “code of silence,”
or unwritten agreement among police officers not to testify against each other.

Officer Darrell Johnson testified he arrived to find the lights on Officer Wehenkel’s patrol
car flashing, Officer Wehenkel standing behind the defendant, and the defendant standing with his
hands on the trunk of the vehicle. From their respective positions, it appeared to him that Officer
Wehenkel was attempting to pat the defendant down for weapons. He asked if the defendant was
under arrest, and she replied, “He is now.” Officer Johnson said he informed the defendant he was
under arrest and tried to grab his left wrist to bring it behind his back for handcuffing, but the
defendant had his hands so tightly pressed on the vehicle he was unable to move them. Therefore,
he delivered a one-second burst of pepper spray to the defendant’s face.

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 Officer Johnson testified the pepper spray did not have any immobilizing effect on the
defendant. Instead, he pulled his hands off the vehicle and swung at Officer Johnson’s face with his
closed right fist. He ducked the blow and stepped back, but the defendant grabbed him by the shirt
collar, pulled him forward, and brought his right fist back to strike again. At that point, Officer
Johnson’s shirt ripped and he fell to the ground, where the defendant continued trying to strike him
several more times with his hands and his feet. Officer Johnson testified he saw the defendant go
after Officer Wehenkel while he was still on the ground attempting to get up and to remove his
expandable baton from his belt. He said he was able to get to his feet but unable to physically
remove his baton from his gear. He then went to his patrol car to retrieve his “PR 24” baton.

Officer Johnson testified that when he returned with the baton, the defendant was sitting on
the ground and Officer Wehenkel was standing above him repeatedly ordering him to lie down, but
the defendant was not complying. When he moved closer to assist, the defendant kicked at him with
his left leg, and he delivered one blow with the baton to the defendant’s left thigh. The defendant
grabbed the baton and stood. As they struggled for control of the baton, the defendant kicked at his
head three times with his right leg. Officer Johnson said he shoved the defendant when he felt the
baton slip in his hands and realized the defendant was off-balance. The defendant fell to the ground
and eventually complied with Officer Wehenkel’s commands to lie down.

On cross-examination, Officer Johnson acknowledged his supplemental report stated that he
witnessed the defendant attempt to hit and kick Officer Wehenkel. He testified he did not see the
defendant make contact with Officer Wehenkel, but he did not see everything that occurred. He said
he did not see Officer Wehenkel hit the defendant with her flashlight. He testified he had not heard
of the expression “code of silence” until defense counsel mentioned it at the previous court
proceeding.

Jim Lambert testified he was a police officer with the Oak Ridge Police Department on
March 13, 2001, and one of the officers who responded to the incident. He said he secured the scene
and asked if any of the bystanders had witnessed the incident, but all of them said they had not seen
anything, and the crowd dispersed.

Sergeant Pete Nance, the shift supervisor and a former emergency medical technician,
testified he responded after hearing the emergency tone on one of his officer’s radios, indicating that
the officer needed assistance. Four police cars and an ambulance were already on the scene when
he arrived, and a crowd of thirty to forty bystanders was in the street. Sergeant Nance testified that
the defendant was beside one of the patrol cars, and Officer Wehenkel was near her vehicle. He
described Officer Wehenkel’s appearance: “She was visibly shaken due to an altercation and her
neck and face were reddened with slight abrasions such as like a scratch or something, scratches, and
she had a cut on her ear and she had a, like a pump knot on her head, on her forehead.” Sergeant
Nance testified that he asked the assembled crowd if there were any witnesses, but no one came
forward.

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 Defense Proof

Michael Weatherall, a registered nurse, testified the defendant was brought to the Methodist
Medical Center on the evening of March 13, 2001, with a lacerated scalp and red, tearing eyes. He
said the defendant told him he had been pepper sprayed and that his eyes were burning.

Robert Tyes, who said he had known the defendant for six or seven years, testified he was
walking home from a friend’s house at approximately 10:40 p.m. when he saw the defendant pull
up in his vehicle, followed by Officer Wehenkel in her patrol car. The defendant got out of his
vehicle and sat on the trunk, and Officer Wehenkel asked him something about a woman. Officer
Wehenkel then began patting the defendant down, kicking on his feet and telling him to spread his
legs. Ten or fifteen seconds later, a second police officer pulled up and asked Officer Wehenkel if
the defendant was under arrest. She replied, “[N]o, but he is now.” At that point, the second police
officer sprayed the defendant with mace.

Tyes testified that the defendant, who was on his knees and appeared to be in pain, waved
his arms in an effort to clear his eyes, but he never saw him throw any punches or attempt to resist
Officer Wehenkel. According to his testimony, after the defendant was on the ground, Officer
Wehenkel swung at him once, and the second police officer swung at him twice with a stick or a
flashlight he retrieved from his patrol car. Tyes said the defendant grabbed the object from the
officer after his second swing, threw it over a fence, and then went back down on the ground. He
said he heard the defendant scream at the officers after being sprayed with mace, “Why are you doing
this to me[?]”

On cross-examination, Tyes acknowledged he had been convicted of theft of property on
January 7, 1997, denied having a grudge against the Oak Ridge Police Department based on a
January 2000 conviction for resisting arrest, and testified he did not owe the bonding company
owned by the defendant’s relative any money on the $4500 bond it had paid on his behalf.

Desmond Shonte Freeman testified he was twenty years old and had known the defendant
since he was a child. He said he was staying at a friend’s house when he saw the lights from a police
car. After he went outside, he heard Officer Wehenkel ask the defendant if he had a gun and the
defendant reply no. Seconds later, a second police officer arrived and asked if the defendant was
under arrest. Officer Wehenkel replied, “He is now,” and the second police officer sprayed the
defendant with mace. The defendant, who had one hand handcuffed, started swinging his arms
wildly because his eyes were burning. The second officer ran to his car and retrieved his stick, while
Officer Wehenkel hit the defendant over the head with a flashlight. Next, the second officer started
hitting the defendant with his stick, but the defendant caught it and threw it by a fence. At that point,
a woman named Reba came outside her home and yelled at the officers to stop hitting the defendant
because he was already on the ground. Freeman testified he did not see the defendant throw any
punches. On cross-examination, he acknowledged he had been convicted for theft in juvenile court
in April 1996.

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 The defendant testified he was thirty-five years old, married, and the father of five children.
At the time of the incident, he lived on Hunter Place. He was returning home in his 1979 Cadillac
Coupe DeVille after buying milk at the grocery on the evening of March 13, 2001, when he saw a
police car at the stop sign on East Hunter Circle. He continued home and pulled into his driveway
and then noticed the blue lights on the police vehicle behind him. He got out of his car and sat on
his trunk as Officer Wehenkel got out of her patrol car and approached him yelling his name. She
asked him what he had been doing and he told her nothing. She then asked if he had a gun and told
him there had been a report of a woman having been dragged into his car.

The defendant testified Officer Wehenkel told him to get off the trunk, turn around, and place
his hands on the vehicle, and he complied. He said she was kicking at his legs and telling him to
spread them, when he heard a voice ask if he was under arrest and Officer Wehenkel reply, “He is
now.” He looked up, saw Officer Johnson, and was immediately sprayed with mace, which felt like
a “big snowball” hitting him in the face. He described what next ensued:

[A]nd I fell to the right and I felt the thunk on my head and she was
yelling: Get down! Get down! Michael, get down! I was down, and
the next thing I know, you know, I was blind, couldn’t see nothing,
didn’t know what was going on, and feeling beaten and beaten and
then I heard my son screaming and yelling and I was wondering why,
what’s going on, and next thing; I was on my knees and I had been
handcuffed and as I could open my eyes for a period of two and a half
seconds, maybe three, I could see, just barely see, you know, it’s like
blinking, if you blink your eyes real fast is what you see, and I
observed the stick coming down; I caught the stick, I come up with
the stick, got the stick out, tossed the stick, and I fell back down. And
I heard her yelling at me: Get down! Get down, Michael! I’ll shoot
you. And there were kicks to my lower rectum and between the
crotch of my legs and, you know, I’m like what’s going on? Why are
you all doing this to me? I haven’t done anything.

The defendant denied having refused Officer Wehenkel’s command to get off the trunk of
the car. He testified he did not throw a punch at anyone, and Officer Wehenkel’s testimony that he
punched her was a lie. He said Charles Fulkerson was his uncle, but he had not seen him for about
a month prior to this incident, and Officer Wehenkel lied when she testified he told her he had been
with Fulkerson that evening. On cross-examination, he said he told Officer Wehenkel he did not
know where Fulkerson was and had not seen him in a month and a half. He said he did not rip
Officer Johnson’s collar or strike either officer and claimed that both officers lied about the incident.

At the conclusion of the evidence, the trial court granted the defendant’s motion to reduce
the aggravated assault charge to simple assault on the basis that the State had failed to overcome the
presumption of prosecutorial vindictiveness raised by having indicted him with a greater offense

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following the mistrial of the initial prosecution. After deliberating, the jury found the defendant
guilty of assault. This appeal followed.

ANALYSIS

I. Admission of Tape Recording

The defendant first contends the trial court erred in admitting the tape recording of the
dispatch call into evidence. He argues the tape was not properly authenticated because Diane Davis
was not the custodian or preparer of the tape, and the State failed to call as a witness the individual
who excerpted the tape from the longer original. The defendant asserts, therefore, that the tape
constituted inadmissible hearsay which violated his Sixth Amendment right to confrontation. The
State argues the tape was properly authenticated by both Davis and Officer Wehenkel and was
admissible under the business records exception to the rule against hearsay.

The United States Constitution provides that a defendant has the right to be confronted with
the witnesses against him. U.S. Const. amend. VI. The Supreme Court has held, however, that the
confrontation clause is satisfied by evidence that falls “within a firmly rooted exception to the
hearsay rule[.]” White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 743, 116 L. Ed. 2d 848 (1992).
Tennessee Rule of Evidence 803(6), the business records exception to the hearsay rule, provides as
follows:

Records of Regularly Conducted Activity. – A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses made at or near the time by or from
information transmitted by a person with knowledge and a business
duty to record or transmit if kept in the course of a regularly
conducted business activity and if it was the regular practice of that
business activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or other
qualified witness or by certification that complies with Rule 902(11)
or a statute permitting certification, unless the source of information
or the method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this paragraph
includes business, institution, profession, occupation, and calling of
every kind, whether or not conducted for profit.

Under Tennessee Rule of Evidence 1003, “[a] duplicate is admissible to the same extent as an
original unless a genuine question is raised as to the authenticity of the original.”

The defendant argues that the tape was improperly admitted and therefore violated the
confrontation clause, because the custodian or preparer of the tape did not testify as to its
authenticity. However, Rule 803(6) provides for testimony by either the “custodian or other

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qualified witness.” Diane Davis, the police dispatcher who handled the call, identified her initials
and the date written on the outside of the cassette tape, as well as her voice and the voices of the
police officers involved in the incident. She testified that the tape contained exactly what she and
the officers said at the time and, to her knowledge, did not omit anything, but she could not be
positive because she did not create the excerpt. Officer Wehenkel also identified the tape by her
initials and date and the voices contained on the recording. Moreover, unlike Davis, she
unequivocally testified that the tape accurately reflected what was said during the incident. Although
the defendant argues to the contrary, there was no genuine issue raised regarding the trustworthiness
of the manner in which the excerpt was created. We conclude, therefore, that the tape was properly
authenticated and admissible under the business records exception to the rule against hearsay.

II. Failure to Instruct Jury to Disregard Davis’s Testimony

The defendant next contends that the trial court erred by failing to instruct the jury to
disregard Davis’ testimony about matters of which she had no personal knowledge. Specifically, the
defendant complains about Davis’ inability to adequately explain when the original shots fired call
complaint had been changed to an assault call on the computer-generated CAD report. During
redirect examination, the following exchange occurred:

Q Tell me what these three reports are that are next to your
name D. Davis.

A I’m not positive; the computer generates it. I’m not sure. It
may be when we change the call complaint.

[DEFENSE COUNSEL]: Your Honor, I object to
what may be.

THE COURT: Well, the Court would let it go to the
weight of the evidence. She said she is not sure what
those are; it may be, but that just goes to the weight of
the evidence.

BY [PROSECUTOR]:

....

Q 23:42:36 shots fired. What call does that relate to that you see
on any other part of that report?

A It’s about the time that the other person called in, but I’m not
sure. That’s computer generated and I don’t know.

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Q And the computer also puts your name by it?

A Oh, yeah.

Q Because you’re the person taking these. 22:42:43 assault.

A I know the call was a shots-fired call and that’s what the
original complaint was, and the dispatcher has to change the
code for the complaint and it was changed to assault so I think
that’s when I changed it.

Q Did you change it in response to anything about a woman in
a Cadillac?

A No, ma’am.

[DEFENSE COUNSEL]: Your Honor, I’m going to
object to this testimony. She’s already answered that
she’s not sure about it and she’s answering things in
violation of Tennessee Rules of Evidence based on
the personal observation and knowledge and her
testimony is that she doesn’t know. And now, [the
prosecutor] is leading her into something that she’s
already said that she didn’t know.

THE COURT: I’ll sustain leading, General. This
witness can only testify as to what she knows under
the Rules of Evidence.

BY [PROSECUTOR]:

Q You put in, you changed it from a shots-fired call to an assault
call? Is that what you’re saying?

A Yes, ma’am.

Q And at this date do you remember why you changed
something from a shots-fired to an assault?

A There may be [sic] a supervisor or something told me to or I
don’t remember. It’s been a while.

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 The defendant argues that “[t]he judge should have instructed the jury to disregard all of
[Davis’] testimony since she could only answer that the information was computer generated
information and could not remember if the shots-fired call was changed to an assault until after the
attorney general questioned her by leading her testimony on direct examination.” The State responds
by arguing that the defendant has waived the issue by failing to request a curative instruction from
the trial court, and further, that any alleged error is harmless. We agree with the State.

“If a party fails to request a curative instruction, or, if dissatisfied with the instruction given
and does not request a more complete instruction, the party effectively waives the issue for appellate
purposes.” State v. Griffis, 964 S.W.2d 577, 599 (Tenn. Crim. App. 1997) (footnote omitted); see
also Tenn. R. App. P. 36(a). Since the defendant failed to request that the trial court instruct the jury
to disregard Davis’ testimony, this issue is waived. However, even if not waived, the defendant
would not be entitled to any relief, as he has failed to show how he was prejudiced by the admission
of the testimony. As the trial court noted, Davis’ inability to fully explain the computer-generated
reports, which included the circumstances under which the characterization of the call was changed
from shots fired to assault, went to the weight of her testimony rather than to its admissibility. We
conclude, therefore, that the trial court did not err by failing to instruct the jury to disregard this
witness’s testimony.

III. Failure to Declare a Mistrial

As his third issue, the defendant contends the trial court should have declared a mistrial
following Officer Wehenkel’s testimony about her prior contact with the defendant. After Officer
Wehenkel testified that she first came in contact with the defendant in 1994, defense counsel
objected and moved for a mistrial, arguing that such testimony constituted evidence of prior bad acts,
in violation of Tennessee Rule of Evidence 404(b). Although the trial court denied the defendant’s
motion for a mistrial, it issued the following curative instruction to the jury:

Before the jury-out hearing there was a question involving
knowledge of the officer as it relates to [the defendant]. You cannot
draw an inference of anything other than the question of identity. Do
you understand what I am saying? With that in mind, we will
proceed.

Whether or not to declare a mistrial lies within the sound discretion of the trial court, and we
will not disturb the court’s decision absent a clear showing of abuse of discretion. State v. Land, 34
S.W.3d 516, 527 (Tenn. Crim. App. 2000) (citations omitted). A mistrial should be declared in a
criminal case only when something has occurred that would prevent an impartial verdict, thereby
resulting in a miscarriage of justice if a mistrial is not declared. See id. (citing State v. McPherson,
882 S.W.2d 365, 370 (Tenn. Crim. App. 1994)); State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim.
App. 1999) (citing Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). “Generally a
mistrial will be declared in a criminal case only when there is a ‘manifest necessity’ requiring such
action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)

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(quoting Arnold, 563 S.W.2d at 794). The burden to show the necessity for a mistrial falls upon the
party seeking the mistrial. Land, 34 S.W.3d at 527 (citing State v. Williams, 929 S.W.2d 385, 388
(Tenn. Crim. App. 1996)).

We agree with the State that the defendant failed to show how Officer Wehenkel’s testimony
about her prior contact with the defendant created a manifest necessity for a mistrial. Officer
Wehenkel’s testimony that she first came into contact with the defendant in 1994 did not reveal the
circumstances of the contact. Moreover, the trial court specifically instructed the jury not to draw
any inferences from the statement other than Officer Wehenkel’s identification of the defendant.
Jurors may be presumed to follow the instructions issued by the trial court. See Millbrooks, 819
S.W.2d at 443; State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). Under these
circumstances, there was no need for a mistrial to be declared. Accordingly, we conclude that the
trial court did not abuse its discretion in denying the defendant’s request for a mistrial.

IV. Failure to Admit Officer Johnson’s Supplemental Report

The defendant next contends that the trial court erred by failing to admit Officer Johnson’s
supplemental report into evidence. The trial court allowed the defendant to cross-examine Officer
Johnson about the contents of the report, but refused the defendant’s request that the report be
admitted as an exhibit and published to the jury, on the basis that it was inadmissible hearsay. The
defendant now argues the report was not hearsay because it was not offered in support of the truth
of the matter asserted, but rather to show inconsistencies between the officers’ accounts of the
incident and the information contained in the report. He further argues that, even if hearsay, the
report fell within the recorded recollection, business records, and public reports exceptions to the
hearsay rule.

As an initial matter, we respectfully disagree with the defendant’s assertion that the report
was not hearsay. “Hearsay” is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Notwithstanding the defendant’s claim to the contrary, he sought to offer Officer
Johnson’s statements in the supplemental report to prove the truth of the matter asserted, i.e., that
the defendant merely attempted to strike Officer Wehenkel without making contact with her body.

We further disagree that the report fell within any of the exceptions to the rule against
hearsay. Tennessee Rule of Evidence 803(5), “Recorded Recollection,” provides as follows:

A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in the
witness’s memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into evidence but

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 may not itself be received as an exhibit unless offered by an adverse
party.

There was nothing to suggest that Officer Johnson’s recollection was diminished, as he
provided a full and detailed account of the incident on direct examination before defense counsel
began cross-examining him about the information contained in his supplemental report. Thus, the
report was not admissible under the recorded recollection exception to the rule against hearsay. We
further note at this junction that, contrary to the defendant’s claim, Officer Johnson’s testimony on
direct examination, in which he stated that he saw the defendant go after Officer Wehenkel but did
not witness what occurred between them because he was concentrating on removing his expandable
baton from his belt, did not contradict the statements contained in his supplemental report.

We also conclude that the trial court did not err in failing to admit the report under the
business records or public records exceptions to the rule against hearsay. Police reports are generally
inadmissible as evidence, and the public records exception to the hearsay rule specifically excludes
their introduction. See Tenn. R. Evid. 803(8). At trial, the defendant did not argue that the report
was admissible under the business records exception. See Tenn. R. Evid. 803(6). Thus, he has
waived this issue for appellate review. However, even if not waived, the defendant has failed to
show on appeal how the report falls outside the general rule of exclusion. See State v. Thompson,
36 S.W.3d 102, 109 (Tenn. Crim. App. 2000). Furthermore, even if the general rationale for the
exclusion of police reports as hearsay is not present in this case, in that the report contained
information based on Officer Johnson’s personal observation and experience with the defendant, see
State v. Aaron A. Winters and Derwin V. Thomas, No. 02C01-9802-CR-00053, 1999 WL 628968,
at *9 (Tenn. Crim. App. Aug. 19, 1999), perm. to appeal denied (Tenn. Mar. 6, 2000) (stating that
“primary problem with the admissibility of police reports is that the report is hearsay made up of
opinion or conclusion not based on personal knowledge”), the defendant has not shown how the
exclusion of such evidence prejudiced the outcome of his trial. Tenn. R. App. P. 36(b). We
conclude, therefore, that this issue is without merit.

V. Admissibility of Defense Witnesses’ Prior Convictions

The defendant next contends the trial court committed reversible error by allowing the State
to introduce evidence of his defense witnesses’ prior convictions. He argues the probative value of
Tyes’s conviction for resisting arrest was substantially outweighed by the danger of unfair prejudice,
confusion of the issues and misleading of the jury, under Tennessee Rule of Evidence 403, because
the crime was so similar to the crime for which the defendant was on trial. He further argues that
Freeman’s juvenile conviction for theft should not have been admitted because it was not necessary
for a determination of the guilt or innocence of the defendant and violated the public policy of the
State to protect juvenile records.

Tennessee Rule of Evidence 616 provides that “[a] party may offer evidence by cross-
examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against

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a party or another witness.” As explained in Neil P. Cohen et al., Tennessee Law of Evidence, §
6.16[3][d] (4th ed. 2000):

Sometimes evidence may be admissible to prove bias or
prejudice but would be inadmissible for other purposes. For example,
Rule 411 bars proof of insurance coverage, but a defense witness who
is employed by the insurance company defending the case may be
asked his or her employment. Similarly, extrinsic evidence of
specific acts may be admissible on bias though not permitted under
Rule 608 to attack general credibility for untruthfulness. A limiting
instruction may be appropriate in such cases.

In this case, the State attempted to show that Tyes was biased toward the defendant and
prejudiced against the police department based on his prior experience with the police. “The feelings
that a witness has with regard to a party or issue are an important factor for the trier of fact to
consider in assessing the weight to be given to the witness’ testimony.” State v. Williams, 827
S.W.2d 804, 808 (Tenn. Crim. App. 1991). We note that, after the State’s initial question on the
topic, the trial court immediately instructed the jury that “this may be inquired into only for the
purpose of showing any bias” and that the jury should consider it “for that reason only.” Thereafter,
the trial court stopped the State’s attempt to elicit details about the incident with the following
instruction to the jury:

General, I will sustain the objection as it relates to that. Now,
disregard the question. We are not going into that. You have asked
about whether or not this person had any bias and he has answered
that question. Members of the Jury, you will not consider that and
entertaining any proof here. Proceed.

We conclude that the trial court did not err in allowing the State its limited cross-examination of
Tyes about his conviction for resisting arrest.

The defendant also argues that the trial court erred in allowing the State to cross-examine
Freeman about his juvenile theft conviction. A trial court’s decision to allow a witness to be
impeached with a prior conviction will not be overturned absent an abuse of discretion. See State
v. Sheffield, 676 S.W.2d 542, 549 (Tenn. 1984). We find no abuse of discretion in this case.
Tennessee Rule of Evidence 609(d) generally prohibits the use of a juvenile conviction to impeach
a witness’s testimony. However, where the witness is someone other than the accused, evidence of
the conviction may be admitted if: (1) the conviction would be admissible to attack the credibility
of an adult and (2) the court determines that the evidence is necessary for a fair determination in the
proceeding. Tenn. R. Evid. 609(d); see also State v. Butler, 626 S.W.2d 6, 10-11 (Tenn. 1981); State
v. Bowers, 762 S.W.2d 889, 891 (Tenn. Crim. App. 1988). The trial court held a bench conference
out of the hearing of the jury to consider the issue, before ruling that the State would be allowed to
impeach Freeman’s credibility with the juvenile conviction. Immediately following Freeman’s

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affirmative response to the State’s question of whether he was the same Freeman who had been
convicted of theft in juvenile court, the trial court issued a curative instruction to the jury that the
information was to be used only for testing the credibility of the witness. The trial court handled the
matter appropriately. We conclude, therefore, that this issue is without merit.

VI. Ineffective Assistance of Counsel

As his next issue, the defendant contends trial counsel provided ineffective assistance by
withdrawing his request to cross-examine Jim Lambert about an alleged misconduct citation and
Officer Wehenkel about an alleged complaint filed against her for using excessive force. The
defendant makes only a cursory argument on this issue, stating that “the credibility of the witnesses
were crucial for the jury,” he “had a right to confront the witnesses regarding any prior complaints
of excessive force,” and “[b]y withdrawing this request, [his] counsel provided him with ineffective
assistance of counsel.”

To succeed on a claim of ineffective assistance of counsel, the defendant must show by clear
and convincing evidence both that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of his trial. Tenn. Code Ann. § 40-30-210(f) (1997); Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The Strickland
standard is a two-prong test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975)). When reviewing an
ineffective assistance of counsel claim, this court must indulge a strong presumption that the conduct
of counsel fell within the range of reasonable professional assistance, see Strickland, 466 U.S. at
690, 104 S. Ct. at 2066, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that
“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Because both prongs of the test must be satisfied,

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a failure to show either deficient performance or resulting prejudice results in a failure to establish
the claim. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

This court has noted “that the practice of raising ineffective assistance of counsel claims on
direct appeal is ‘fraught with peril’ since it ‘is virtually impossible to demonstrate prejudice as
required’ without an evidentiary hearing.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim.
App. 2001) (quoting Kirby George Wallace v. State, No. 01C01-9308-CC-00275, 1994 WL 504401
(Tenn. Crim. App. Sept. 15, 1994)). Assuming, arguendo, that trial counsel was deficient for
withdrawing his request to cross-examine the officers about the alleged misconduct, the defendant
still has not shown by clear and convincing evidence that such deficiency prejudiced the outcome
of his trial. Accordingly, we conclude he has failed to meet his burden of demonstrating ineffective
assistance of counsel.

VII. Sufficiency of the Evidence

As his final issue, the defendant contends that the evidence was insufficient to support his
conviction. He argues that the State’s witnesses, particularly Officers Wehenkel and Johnson, were
not as credible as his witnesses, who provided consistent accounts of the incident. The State argues
that the credibility of the witnesses was for the jury to determine and that the evidence
overwhelmingly supported the jury’s verdict. We agree with the State.

When the sufficiency of the convicting evidence is challenged on appeal, we must consider
“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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

This well-settled rule rests on a sound foundation. The trial
judge and the jury see the witnesses face to face, hear their testimony
and observe their demeanor on the stand. Thus the trial judge and
jury are the primary instrumentality of justice to determine the weight
and credibility to be given to the testimony of witnesses. In the trial

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 forum alone is there human atmosphere and the totality of the
evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

The defendant was charged with assault for intentionally, knowingly, or recklessly causing
bodily injury to Officer Wehenkel. See Tenn. Ann. Code § 39-13-101(a)(1). Viewed in the light
most favorable to the State, the evidence established that the defendant struck Officer Wehenkel on
the side of the head with his closed fist as she attempted to pat him down for weapons and struck her
repeatedly with his closed fist in the face, head, and neck as she and Officer Johnson attempted to
place him under arrest. The evidence further established that she suffered bodily injury, in the form
of a knot to her forehead, scratches to her face, a cut on her ear, and damage to her neck and shoulder
that required two surgeries. The defendant argues that the State’s evidence was inconsistent because
Officer Johnson did not witness him make contact with Officer Wehenkel’s body. However, from
the testimony of both officers, it was clear that Officer Johnson was not in a position to view
everything that occurred between the defendant and Officer Wehenkel. By finding the defendant
guilty of assault, the jury obviously chose to accredit the witnesses for the State over the witnesses
for the defense. This was its prerogative as the trier of fact, and we will not disturb its findings. We
conclude, therefore, that the evidence was sufficient to sustain the defendant’s conviction.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.

___________________________________
ALAN E. GLENN, JUDGE

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