IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 13, 1999
MARCH 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * No. 03C01-9805-CR-00193
Appellee * SULLIVAN COUNTY
V. * Hon. R. Jerry Beck, Judge
GUY WILLIAM RUSH, * (Reckless Aggravated Assault)
Appellant. *
For Appellant For Appellee
Mark D. Harris Paul G. Summers
142 Cherokee Street Attorney General and Reporter
Kingsport, TN 37660 425 Fifth Avenue North
Nashville, TN 37243-0493
Erik W. Daab
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Edward E. Wilson
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
The appellant, Guy William Rush, appeals his conviction in the
Sullivan County Criminal Court of reckless aggravated assault. The trial court
sentenced the appellant as a Range III offender to ten years in the Tennessee
Department of Correction. On appeal, the appellant presents the following issues
for our review:
(1) Whether the trial court erroneously
instructed the jury on the offense of
reckless aggravated assault.
(2) Whether the trial court erred in failing to
instruct the jury on the lesser offenses of
attempt to commit criminally negligent
homicide and felony reckless
endangerment.
(3) Whether the State violated Tenn. R. Crim.
P. 16 and the rule set forth in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194
(1963), by failing to comply with the
appellant’s Motion for Discovery.
(4) Whether the trial court erroneously
admitted evidence at trial concerning a
pending charge against the appellant of
custodial interference.
(5) Whether the trial court erred in failing to
enforce the parties’ stipulation concerning
the appropriate range of punishment.
(6) Whether the trial court erroneously denied
the appellant’s Motion for New Trial on the
basis of newly discovered evidence.
(7) Whether the evidence adduced at trial was
sufficient to support the appellant’s
conviction of reckless aggravated assault.
Following a thorough review of the record and the parties’ briefs, we affirm the
judgment of the trial court.
I. Factual Background
On December 12, 1995, a Sullivan County Grand Jury returned a two
count indictment charging the appellant in Count I with attempt to commit second
2
degree murder of Tina Cherie Rush 1 and in Count II with aggravated assault of
Wendy Renee Crowe. The indictment stemmed from a fight between the appellant
and his ex-wife, which occurred on October 1, 1995, in the parking lot of the Station
Bar in Sullivan County. The appellant’s case proceeded to trial on March 17 and 18,
1997.
At the appellant’s trial, the State established that on October 1, 1995,
Tina Rush and a friend, Wendy Crowe, decided to go to the Station Bar in order to
play pool and watch a NASCAR race on the bar’s television. They arrived at the bar
at 3:00 p.m. or 3:30 p.m. Approximately three hours after their arrival, the appellant
and a friend, Pete Gross, also entered the bar. The appellant and Tina Rush had
been divorced for approximately three and one half years. Moreover, in 1993 and
1994, Ms. Rush had been convicted of assaulting the appellant. However, the
former couple continued to encounter one another regularly, as their marriage had
produced one daughter who visited the appellant every other weekend. Thus, while
inside the bar, the appellant and Ms. Rush conversed amicably.
Later that evening, Mr. Gross became involved in an argument and fist
fight with another customer in the bar named Jimmy “J.J.” Cullop. The owner of the
bar asked Mr. Gross to leave, and Mr. Gross and the appellant walked outside into
the parking lot. Ms. Rush and Ms. Crowe remained in the bar for an additional
amount of time between fifteen minutes and one hour.
As they were leaving the bar, Ms. Rush and Ms. Crowe paused
immediately outside the entrance to speak with Mr. Cullop, who was a former
1
The victim in this case is referred to elsewhere in the transcript as “Tina Louise Rush” and
“Tenna Cherie Rush.” However, on an “Application for Criminal Injuries Compensation” form, Ms.
Rush indicated th at her na me is, in f act, “Tina Cherie R ush.”
3
boyfriend of Ms. Rush. Both women noticed that the appellant and Mr. Gross were
still in the parking lot, speaking with the owner of the bar. When the women
emerged from the bar, the appellant approached them and initiated a somewhat
disjointed conversation.
The appellant first asked Ms. Crowe if she would accompany him on a
date. When Ms. Crowe emphatically refused, the appellant turned to his ex-wife
and inquired whether or not he would see her in court the following Tuesday. Ms.
Rush replied, “Yes, because I can’t let you keep doing the things you do, so I will be
there.” Finally, the appellant turned to Mr. Cullop and spoke with him about his
earlier fight with Mr. Gross. Mr. Cullop remarked that he “knowed he couldn’t whoop
[Mr. Gross].” The appellant responded, “I couldn’t whoop him either unless I used a
knife, and I’ve got one.”
At this point, Ms. Rush apparently believed that the appellant intended
to fight with Mr. Cullop and asked the appellant to leave Mr. Cullop alone. In
response, the appellant placed his hand on his pocket. When Ms. Rush warned the
appellant that she was carrying pepper spray, the appellant violently pushed Ms.
Rush against the outside wall of the bar, prompting Ms. Crowe to intervene by
pushing the appellant away from Ms. Rush. The appellant struck Ms. Crowe in the
head with his fist, whereupon Ms. Rush attempted to spray the appellant with
pepper spray. The appellant then struck Ms. Rush in the jaw with his fist. Ms.
Crowe managed to extricate herself from the melee, retreat inside the bar, and call
the police. Mr. Cullop also fled the parking lot at some point during the fight.
While Ms. Crowe was inside the bar, the appellant pulled a knife from
his pocket and stabbed Ms. Rush in her right elbow and under her left breast. Ms.
4
Rush continued to spray the appellant with pepper spray and attempted to run away.
The appellant seized Ms. Rush from behind and stabbed her twice in the back.
Ms. Crowe reemerged from the Station Bar and pulled the appellant
away from Ms. Rush. The appellant made stabbing motions with his knife in Ms.
Crowe’s direction. However, Ms. Crowe testified at trial that the appellant’s eyes
were “squinted shut” and he appeared to have difficulty seeing her. Ultimately, the
owner of the bar forced both Ms. Rush and Ms. Crowe back inside the bar, leaving
the appellant in the parking lot.2
John Rose, an officer employed by the Sullivan County Sheriff’s
Department, was dispatched to the Station Bar at approximately 8:21 p.m. When
he arrived, the appellant was standing in the parking lot with his arms outstretched.
He appeared to be holding a knife in his right hand and “was screaming and
hollering and thrashing his arms back and forth.” Bystanders in the parking lot
yelled to Officer Rose that someone inside the bar had been stabbed.
Officer Rose ordered the appellant to lie on the ground, repeating the
order several times. When the appellant finally complied, Officer Rose placed him
in handcuffs and retrieved both the knife and a can of pepper spray which was lying
on the ground nearby the appellant. Officer Rose then confirmed that an
ambulance was en route to the bar and waited for the arrival of additional officers.
As soon as another officer arrived, Officer Rose entered the bar in search of the
victim. The officer observed Ms. Rush lying motionless on the floor. Several people
were attempting to treat wounds on her back. An ambulance then arrived and
2
Although contradicted by Ms. Rush’s testimony, Ms. Crowe recalled that she withdrew from
the fight, entered the bar, and returned one more time before the owner of the bar intervened.
5
transported Ms. Rush to Bristol Regional Medical Center.
Officer Rose returned to the parking lot and advised the appellant of
his Miranda rights. The appellant declined to provide a statement to the police,
indicating that his eyes were “burning.” Officer Rose concluded that the appellant
had probably been sprayed with pepper spray, and he directed another officer to
transport the appellant to the Medical Center in order to ensure that he did not
require medical treatment.
At the appellant’s trial, Officer Rose testified that, generally, pepper
spray will cause difficulty breathing and a burning sensation in the eyes, forcing the
eyelids to close. The severity of these symptoms will vary depending upon whether
the pepper spray directly hits the intended target, and the symptoms can last from
twenty to forty minutes. Officer Rose testified that, although pepper spray can
cause panic, an individual can also overcome the effects of pepper spray, open his
or her eyes, and continue to struggle and fight. Officer Rose noted that, on the
“continuum of force,” the use of pepper spray is one level above a verbal command
and one level below the direct application of physical force, such as twisting
someone’s hand or wrist.
Dr. Glenn Birkitt, Jr., testified at trial that he treated Ms. Rush at the
Bristol Regional Medical Center. Dr. Birkitt stated that Ms. Rush had suffered four
puncture wounds: a superficial wound in her right elbow; another superficial wound
in her left anterior chest; and more serious wounds in her right upper and right
middle back. The last wound was the largest wound and was still bleeding actively
when Dr. Birkitt examined Ms. Rush at the Medical Center. Upon performing a
“CAT” scan, the doctor determined that the puncture wound was approximately six
6
centimeters in length and had penetrated the back of the liver, causing the liver to
bleed into the abdominal cavity. Ms. Rush was administered fluids intravenously in
order to maintain her blood volume and was transferred to the intensive care unit.
Ms. Rush remained in the hospital for four days. 3
In defense, the appellant presented the testimony of Larry A. “Pete”
Gross. Mr. Gross testified that he and the appellant have been best friends since
childhood. He recounted that, on the afternoon of October 1, 1995, he met the
appellant at the home of a mutual acquaintance. They watched a race on television
and then decided to drive “through the mountain.” During their excursion, the
appellant instructed Mr. Gross to drive to the Station Bar. The appellant explained
that he wished to locate his ex-wife in order to obtain her permission to see their
daughter that weekend.
When the appellant and Mr. Gross arrived at the Station Bar, Ms.
Rush was playing pool. The appellant approached Ms. Rush and inquired
concerning their daughter. Both the appellant and Ms. Rush appeared friendly
during the ensuing conversation, which lasted approximately five or six minutes.
Afterwards, Mr. Gross became involved in a fight with Jimmy “J.J.” Cullop. The
owner of the bar asked Mr. Gross and the appellant to leave the bar and escorted
them outside into the parking lot. In the parking lot, the appellant and Mr. Gross
conversed with the owner of the bar, who finally decided that they could return
inside.
3
Incidentally, Dr. Birkitt also stated that, during the course of his treatment, he noticed no
signs that Ms. Rush was intoxicated. He recalled:
At the time I saw her, she was reasonable, she was coherent and
able to give me inf orm ation and talk to m e. Ther e was n o reaso n to
be co nce rned that s he w as im paire d in an y way.
Ms. R ush he rself testified that, while at the Station Ba r, she on ly consum ed one and one half Zim as.
Moreover, we note that Officer Rose testified that he noticed no signs that the appellant was
intoxicated on the evening of his offense.
7
Mr. Gross and the owner of the bar continued their conversation in the
parking lot, but the appellant turned and walked toward the entrance of the bar. Ms.
Rush, Ms. Crowe, and Mr. Cullop had followed the appellant and Mr. Gross into the
parking lot and were standing just outside the entrance of the bar. According to Mr.
Gross, whose view was somewhat obscured by several parked cars, Ms. Rush
stopped the appellant and initiated a conversation. She soon began “screaming and
. . . cussing [at the appellant].” Mr. Gross resumed his conversation with the owner
of the bar, but the altercation at the entrance once again captured his attention
when he heard the appellant exclaim, “You sprayed me, why did you spray me?” As
noted earlier, Mr. Gross’s view of the bar’s entrance was obscured by several
parked cars. Nevertheless, as he approached the entrance, Mr. Gross could hear
the appellant saying, “[G]et away, stay back.” When he arrived, the appellant was
alone and kept saying, “I can’t see, I’m blind, she blinded me.” Mr. Gross testified
that the appellant was holding a knife.
At the conclusion of the appellant’s trial, the trial court instructed the
jury on the following offenses pursuant to Count I of the indictment pertaining to Ms.
Rush: attempt to commit second degree murder; attempt to commit voluntary
manslaughter; intentional or knowing aggravated assault accompanied by serious
bodily injury; reckless aggravated assault accompanied by serious bodily injury; and
assault accompanied by bodily injury. With respect to Count II of the indictment
pertaining to Ms. Crowe, the trial court instructed the jury on the following offenses:
intentional or knowing aggravated assault by use of a deadly weapon; reckless
endangerment by use of a deadly weapon; and assault by causing another to
reasonably fear imminent bodily injury. The trial court additionally instructed the jury
on the defenses of self-defense and necessity. Following deliberation, the jury
found the appellant guilty of reckless aggravated assault with respect to Count I of
8
the indictment and acquitted the appellant of Count II.
II. Analysis
A. Jury Instructions
i. Reckless Aggravated Assault
The appellant first contends that, with respect to his indictment for
attempt to commit second degree murder of Ms. Rush, the trial court erroneously
instructed the jury on the offense of reckless aggravated assault. The appellant
correctly notes that our supreme court in State v. Trusty, 919 S.W.2d 305, 312
(Tenn. 1996), held that aggravated assault is neither a lesser grade nor a lesser
included offense of attempted murder. However, because the supreme court’s
holding was based, in part, upon the language of the indictment in that case, the
holding does not necessarily avail the appellant.
The supreme court’s opinion in Trusty was grounded in the due
process requirements that a criminal defendant be informed of the nature and cause
of the State’s accusation and afforded a fair opportunity to defend against the
charges. Id. at 309. Consistent with these requirements, “an indictment or
presentment must provide notice of the offense charged, an adequate basis for the
entry of a proper judgment, and suitable protection against double jeopardy.” Id.
Relying upon these guidelines, the court concluded that a constitutionally adequate
indictment for one offense will additionally provide notice of (1) all lesser offenses
which, by reason of statutory construction, are lesser grade offenses, and (2) all
lesser offenses which, by reason of the language in the indictment, are necessarily
included in the greater offense. Id. at 310-311. Thus, a determination of lesser
included offenses depends upon the language by which the greater offense is
charged in the indictment and can only be made on a case by case basis. See,
9
e.g., State v. Flanigan, No. 03C01-9708-CR-00330, 1998 WL 338207, at *2 n.1
(Tenn. Crim. App. at Knoxville, June 26, 1998)(while aggravated assault is generally
not a lesser included offense of attempted murder, the language of an indictment
charging attempted murder may nevertheless allege an aggravated assault); State
v. Nolan, No. 01C01-9511-CC-00387, 1997 WL 351142, at **5-6 (Tenn. Crim. App.
at Nashville, June 26, 1997)(even if an indictment charges attempt to commit first
degree murder, the indictment will support a conviction of aggravated assault if it
alleges serious bodily injury or the use of a deadly weapon).
In this case, the indictment charged:
GUY WILLIAM RUSH on or about October 1, 1995 . . .
did unlawfully, feloniously, and knowingly attempt to kill
Tina Cherie Rush . . . by stabbing her several times, in
violation of Tennessee Code Annotated Section 39-13-
202 . . . .
The appellant contends that the indictment cannot support a conviction of reckless
aggravated assault as it fails to allege the use of a deadly weapon, serious bodily
injury, or a mental state of recklessness.
Initially, whether or not Count I of the indictment alleged the appellant’s
use of a deadly weapon is irrelevant to the resolution of this issue, because the trial
court only instructed the jury on the offense of reckless aggravated assault
accompanied by serious bodily injury. Specifically, the trial court instructed the jury
that the State was required to prove beyond a reasonable doubt that the appellant
(1) recklessly caused bodily injury to Ms. Rush and (2) the bodily injury was serious.
Tenn. Code. Ann. § 39-13-102(a)(2)(A) (1995); Tenn. Code. Ann. § 39-13-101(a)(1)
(1995).
Moreover, Tenn. Code. Ann. § 39-11-301 (1997) and the
10
accompanying Sentencing Commission Comments provide that greater levels of
culpability encompass the lesser. See, e.g., State v. Brantley, No. 01C01-9508-CC-
00255, 1997 WL 110008 (Tenn. Crim. App. at Nashville, March 13, 1997)(this court
held that an indictment charging intentional or knowing aggravated assault could
support a conviction of reckless aggravated assault). Accordingly, the mental state
of “knowingly” charged in the indictment at issue encompassed the necessary
mental state of “recklessness.”
Thus, with respect to the trial court’s instruction on reckless
aggravated assault, the only question before this court is whether the indictment
alleged serious bodily injury. Again, in reviewing an indictment, “the touchstone for
constitutionality is adequate notice to the accused.” State v. Hill, 954 S.W.2d 725,
729 (Tenn. 1997). Adequate notice entails factual allegations relating to each
essential element of the offense. Trusty, 919 S.W.2d at 309. See also State v.
Cutshaw, 967 S.W.2d 332, 338 (Tenn. Crim. App. 1997)(“[a] judgment based on an
indictment or presentment that does not allege all the essential elements of the
offense is a nullity”). Moreover, the indictment must state the facts in ordinary and
concise language, enabling a person of “common understanding” to know what is
intended. Trusty, 919 S.W.2d at 309; Tenn. Code. Ann. § 40-13-202 (1997). That
having been said, our supreme court explained in Trusty “that in some instances,
where an element is implicit although not specifically stated in the indictment, a
conviction may be sustained.” 919 S.W.2d at 312-313; Hill, 954 S.W.2d at 729 (“the
required mental state may be inferred from the nature of the criminal conduct
alleged [in the indictment]”). See also State v. Palmer, No. 01C01-9607-CR-00285,
1997 WL 722789, at *10 (Tenn. Crim. App. at Nashville, November 20, 1997), perm.
to appeal denied, (Tenn. 1998). We conclude that a person of common
understanding would interpret the language in the indictment charging the appellant
11
with knowingly “stabbing” the victim “several times” to include the essential elements
of reckless aggravated assault, including serious bodily injury.
Tenn. Code. Ann. § 39-11-106(a)(34) (1995) defines “serious bodily
injury” as “bodily injury which involves:
(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment of
a function of a bodily member, organ or
mental faculty . . . .”
The language of the indictment in this case provided sufficient notice to the
appellant that the State was alleging injuries which either created a substantial risk
of death or caused “[e]xtreme physical pain.” In reaching this conclusion, we note
that the common dictionary definition of “stab” is “to pierce or wound with or as if
with a pointed weapon . . . . to thrust, plunge, or jab (a knife, pointed weapon, or the
like) into something . . . . to penetrate sharply or painfully . . . . Random House
Webster’s Unabridged Dictionary 1852 (2d ed. 1998). Moreover, the indictment in
this case alleged that the appellant stabbed the victim more than once, logically
increasing any accompanying risk of death or any pain. This issue is without merit.
ii. Attempt to Commit Criminally Negligent
Homicide and Felony Reckless
Endangerment
The appellant next alleges that the trial court erroneously failed to
instruct the jury on the offenses of attempt to commit criminally negligent homicide
and felony reckless endangerment. A trial court in a criminal case is required by
statute to instruct the jury on the general principles of law relating to each offense
12
included in the indictment, even absent a request by the defendant.4 Tenn. Code.
Ann. § 40-18-110(a) (1997). See also State v. Cleveland, 959 S.W.2d 548, 553
(Tenn. 1997); State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998).
Therefore, when the evidence introduced at trial is legally sufficient to support a
conviction of a lesser grade or lesser included offense, a criminal defendant is
entitled to a jury instruction on the lesser offense. Trusty, 919 S.W.2d at 311;
Cutshaw, 967 S.W.2d at 341-342; State v. Cowart, No. 03C01-9512-CR-00402,
1999 WL 5174, at *15 (Tenn. Crim. App. at Knoxville), perm. to appeal denied,
(Tenn. 1999). See also State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998).
Of course, as noted above, the trial court must first determine whether
a requested instruction sets forth a lesser offense of the offense charged in the
indictment. Elder, 982 S.W.2d at 876. In this case, the trial court correctly
determined that attempt to commit criminally negligent homicide is not a lesser
offense of attempt to commit second degree murder, because the former offense
does not exist in Tennessee. State v. Mooney, No. 02C01-9508-CC-00216, 1998
WL 906477, at *4 (Tenn. Crim. App. at Jackson, December 30, 1998); State v.
Nolan, No. 01C01-9511-CC-00387, 1997 WL 351142, at *9 (Tenn. Crim. App. at
Nashville, June 26, 1997). Cf. State v. Kimbrough, 924 S.W.2d 888, 891-892
(Tenn. 1996)(“[i]t is impossible to conceive of an attempt where a crime by definition
may be committed recklessly or negligently but not intentionally”).
In contrast, in light of the language in Count I of the indictment, we
must conclude that, in this case, felony reckless endangerment is a lesser included
4
The record reflects that the appellant’s trial counsel did request instructions on the offenses
of attempt to com mit criminally negligent homicide and reckless end angerme nt, but the trial court
denied the appellant’s request. Trial counsel subsequently emphasized his objection to the trial
court’s failure to charge the offense of reckless endangerment with respect to Count I of the
indictm ent.
13
offense of attempt to commit second degree murder. Compare State v. Bentley, No.
02C01-9601-CR-00038, 1996 WL 594076, at *1-2 (Tenn. Crim. App. at Jackson,
October 17, 1996)(this court implicitly acknowledged that, in that case, reckless
endangerment was neither a lesser grade nor lesser included offense of attempt to
commit first degree murder). Again, the indictment charged the appellant with
knowingly stabbing Ms. Rush several times. A person commits reckless
endangerment “who recklessly engages in conduct which places or may place
another person in imminent danger of death or serious bodily injury. Tenn. Code.
Ann. § 39-13-103(a)(1997). When the offense of reckless endangerment is
committed with a deadly weapon, the offense is a class E felony. Id. at (b). Just as
a person of common understanding would interpret the language “by stabbing her
several times” to imply serious bodily injury to the victim, she would similarly
understand the language to encompass the imminent danger of death or serious
bodily injury. Moreover, we conclude that the use of a deadly weapon is implicit in
this language.
Having concluded that felony reckless endangerment is a lesser
included offense of attempt to commit second degree murder, we must also
determine whether an instruction on the lesser included offense was warranted by
the evidence adduced at trial. Elder, 982 S.W.2d at 876-877. The relevant question
is whether “the evidence, when viewed in the light most favorable to the defendant’s
theory of the case, would justify a jury verdict in accord with the defendant’s theory,
and would permit a rational trier of fact to find the defendant guilty of the lesser
offense and not guilty of the greater offense.” Id. at 877. See also State v.
Langford, 994 S.W.2d 126, 128 (Tenn. 1999)(failure to instruct on a lesser offense
is not error when the record is devoid of any evidence permitting an inference of
guilt of the lesser offense); State v. Lewis, 978 S.W.2d 558, 565 (Tenn. Crim. App.
14
1997), perm. to appeal denied, (Tenn. 1998)(“[o]nly when there is some evidence
upon which reasonable minds could convict the defendant of a particular lesser
offense is the court required to instruct regarding that offense”).
In this case, the primary distinction between reckless endangerment
and reckless aggravated assault (other than the use of a deadly weapon, which was
undisputed at trial) was the distinction between the imminent danger of death or
serious bodily injury and the realization of that danger in the form of serious bodily
injury creating a substantial risk of death or extreme physical pain. In other words,
this court must ask whether a rational trier of fact could have found the appellant
guilty beyond a reasonable doubt of merely placing Ms. Rush in danger of death or
serious bodily injury and acquitted the appellant of inflicting serious bodily injury
upon Ms. Rush.
As noted earlier, the evidence at the appellant’s trial established that
the appellant became embroiled in a physical altercation with his ex-wife and, upon
being sprayed with pepper spray, withdrew a knife and stabbed Ms. Rush four
times. The most serious wound was six centimeters in length and penetrated Ms.
Rush’s liver. Ms. Rush was placed in the intensive care unit at Bristol Regional
Medical Center and remained in the hospital for four days. Ms. Rush testified that,
during the incident, she was “in a lot of pain” and believed that she was dying. She
stated that, at the time of the appellant’s trial, she was still experiencing some
residual pain as a result of her injuries. Dr. Birkitt confirmed that the injuries would
have been painful. Dr. Birkitt additionally testified that Ms. Rush reported to him at
the hospital that, following the appellant’s attack, she “was notably uncomfortable”
and “had pain in her chest and back.” Dr. Birkitt stated that at no time did Ms. Rush
experience clinical shock, and her vital signs, including her blood pressure, her
15
pulse, and her respiration, remained within normal range. Viewing this evidence in a
light most favorable to the appellant, we must conclude that rational jurors could
have disagreed concerning the extent of Ms. Rush’s injuries.
However, although we have concluded that the appellant was entitled
to an instruction on the lesser included offense of felony reckless endangerment,
our analysis is not complete. We must still determine whether the trial court’s error
affirmatively appears to have affected the result of the trial on the merits, or, in other
words, whether the error more probably than not affected the judgment to the
appellant’s prejudice. Williams, 977 S.W.2d at 105; Tenn. R. App. P. 36(b); Tenn.
R. Crim. P. 52(a). In Williams, 977 S.W.2d at 101, the defendant was indicted for
the offense of first degree premeditated murder. At trial, in addition to instructing the
jury on the offense of first degree murder, the trial court instructed the jury on the
lesser included offenses of second degree murder and reckless homicide. Id. at
106. The trial court erroneously declined to instruct the jury on the lesser offense of
voluntary manslaughter. Id. The jury convicted the defendant of first degree
murder. Id. Our supreme court concluded that the trial court’s error was harmless,
because the jury’s “disinclination to consider the lesser included offense of second
degree murder clearly demonstrate[d] that it certainly would not have returned a
verdict on voluntary manslaughter.” Id. In other words, by finding the defendant
guilty of the highest offense to the exclusion of the immediately lesser offense, the
jury necessarily rejected all other lesser offenses. Id. Unfortunately, the analysis of
our supreme court in Williams does not neatly fit the facts of this case, because
felony reckless endangerment, had it been charged, would itself have been the
immediately lesser offense. Therefore, arguably, the jury’s rejection of the lesser
offense of assault says nothing about whether it would have returned a verdict on
felony reckless endangerment.
16
Yet, we have already noted that the key distinction between felony
reckless endangerment and reckless aggravated assault as instructed in this case
was the distinction between the mere possibility of death or serious bodily injury and
the realization of serious bodily injury. The key distinction between assault and
reckless aggravated assault was the distinction between bodily injury and serious
bodily injury. Ms. Rush unquestionably suffered bodily injury. Therefore, regardless
of whether the trial court charged felony reckless endangerment, assault, or both,
the only question before the jury in choosing between reckless aggravated assault
and any lesser offense was whether Ms. Rush suffered serious bodily injury. The
jury found that Ms. Rush suffered serious bodily injury.
In Williams, our supreme court did not limit its holding to the facts of
that case, but appeared to announce a broader principle that a trial court’s failure to
instruct on lesser offenses is subject to the harmless error analysis set forth in Tenn.
R. App. P. 36(b) and Tenn. R. Crim. P. 52(a). Somewhat inconsistently, the
supreme court more recently remarked that “[t]he failure to instruct on a lesser
offense . . . may be shown to be harmless beyond a reasonable doubt under some
circumstances.” State v. Bolden, 979 S.W.2d 587, 592 (Tenn. 1998)(emphasis
added). In any event, we conclude that the trial court’s error in this case was
harmless beyond a reasonable doubt.
B. The State’s Failure to Comply with the Appellant’s Motion for Discovery
i. The State’s Failure to Provide the Criminal Record of Wendy
Crowe
The appellant additionally alleges that the State withheld information
that one of its witnesses, Wendy Crowe, had been convicted of misdemeanor theft
17
in 1993.5 Prior to trial, the appellant submitted a Motion for Discovery, requesting
that the State provide the criminal records of any witnesses for the State following
direct examination of the witness at trial. The appellant contends that the State’s
compliance with this request was mandated by Tenn. R. Crim. P. 16 and the United
States Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194
(1963).
Initially, our supreme court has held that the State has no duty, either
under Tenn. R. Crim. P. 16 or pursuant to decisional law in this state, to secure and
deliver to a criminal defendant the arrest histories, if any, of the State’s witnesses.
State v. Workman, 667 S.W.2d 44, 51 (Tenn. 1984). See also State v. King, 905
S.W.2d 207, 212 (Tenn. Crim. App. 1995), overruled on other grounds by Williams
977 S.W.2d at 106 n.7(this court held that the criminal history of a witness for the
State is not the kind of information the State has a duty to produce pursuant to
Tenn. R. Crim. P. 16); State v. Dunlap, No. 02C01-9801-CC-00009, 1998 WL
641338, at *4 (Tenn. Crim. App. at Jackson, September 21, 1998)(the State is not
required to provide a defendant with the criminal records of the State’s witnesses).
However, this court must still address whether the State possessed such a duty
pursuant to federal constitutional law.
In Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-1197, the
United States Supreme Court held that the State has a duty pursuant to principles of
due process to furnish exculpatory evidence to an accused. In United States v.
Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985), the Supreme Court
clarified that the Brady rule encompasses impeachment evidence. However, before
5
At the hearing on the appellant’s Motion for New Trial, the appellant introduced a copy of the
judgment of conviction, reflecting that, on December 15, 1993, Ms. Crowe was convicted in the
Gene ral Sess ions Co urt of Sullivan Coun ty of misd eme anor the ft.
18
the appellant is entitled to relief pursuant to the Brady rule, he must establish the
following prerequisites: (a) the appellant must have submitted a proper request for
the production of evidence, unless the evidence was obviously exculpatory in nature
and would have been helpful to the appellant; (b) the prosecution must have
suppressed evidence; (c) the suppressed evidence must have been favorable to the
accused; and (d) the evidence must have been material. See State v. Edgin, 902
S.W.2d 387, 389 and 390 (Tenn. 1995); Irick v. State, 973 S.W.2d 643, 657 (Tenn.
Crim. App. 1998); State v. Welcome, No. 03C01-9709-CR-00386, 1998 WL 832433,
at *10 (Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn.), cert. denied,
U.S. , 119 S.Ct. 219 (1998). The appellant carries the burden of proving a
Brady violation by a preponderance of the evidence. Edgin, 902 S.W.2d at 389.
It is undisputed in this case that the appellant submitted a request for
the criminal records of all witnesses for the prosecution.6 Moreover, it is undisputed
that Ms. Crowe’s criminal record constituted evidence favorable to the appellant.
Ms. Crowe was the only witness for the prosecution, other than the victim, who was
able to recount details of the fight between the appellant and his ex-wife. Had the
State provided the appellant with Ms. Crowe’s criminal record, he could have asked
Ms. Crowe on cross-examination about her prior conviction of theft for the purpose
of impeaching her testimony. Tenn. R. Evid. 609. See also State v. Holtcamp, 614
S.W.2d 389, 394 (Tenn. Crim. App. 1980)(“[s]tealing is dishonest conduct and an
offense involving such conduct is a proper subject of cross-examination); State v.
Johnson, No. 02C01-9504-CC-00097, 1997 WL 80970, at *4 (Tenn. Crim. App. at
Jackson, February 27, 1997)(theft is a crime involving dishonesty and is particularly
6
The State notes in its brief that the appellant failed to renew his request for the disputed
evidence following Ms. Crowe’s testimony. However, the State cites no authority for the proposition
that the appellant was required to renew his request in order to trigger the Brady rule. Indeed,
assuming that the other prerequisites to application of the Brady rule w ere s atisfie d, Ms . Cro we’s
record was arg uably the type o f “obvious ly exculpato ry” evidenc e which m ust be pr ovided b y the State
even in the absen ce of an y reques t by a crim inal defen dant.
19
relevant to the issue of credibility). Accordingly, the resolution of this issue turns on
the questions of whether the prosecution suppressed the evidence and whether the
evidence was material.
One court has recently observed that, “[a]bsent prosecutorial
knowledge, by definition there can have been no government suppression of
evidence.” Shakur v. United States, 32 F.Supp.2d 651, 658 (S.D.N.Y. 1999). In this
case, the record reflects and it is undisputed that the prosecutor was not aware of
Ms. Crowe’s criminal record at the time of the appellant’s trial. Nevertheless, the
Supreme Court in Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995),
stated that “the individual prosecutor has a duty to learn of any favorable evidence
known to others acting on the government’s behalf in the case, including the police.”
In other words, “[t]he individual prosecutor is presumed to have knowledge of all
information gathered in connection with the government’s investigation.” United
States v. Paynes, 63 F.3d 1200, 1208 (2nd Cir. 1995).
In Kyles, the Court was addressing the detectives’ failure in that case
to provide information to the prosecutor which they had uncovered during the course
of their investigation. 514 U.S. at 438, 115 S.Ct. at 1568. The Court expressed
concern that permitting the prosecutor to thereby avoid the Brady rule would
effectively substitute the police for the prosecutor. Id. In contrast, the appellant
does not allege that police officers investigating this case were aware of Ms.
Crowe’s criminal record at the time of his trial, but only that the criminal record
existed. It is a significant step from imputing knowledge to prosecutors of
information uncovered by police during the course of a specific investigation to
imputing knowledge to the prosecutor of all information possessed by the police or
other government agencies. But see, e.g., Criven v. Roth, 172 F.3d 991, 996-998
20
(7th Cir. 1999).
More importantly, this court has previously held that, when exculpatory
evidence is equally available to the prosecution and the accused, the accused must
bear the responsibility of seeking its discovery. State v. Marshall, 845 S.W.2d 228,
233 (Tenn. Crim. App. 1992); State v. Moates, No. 03C01-9610-CR-00383, 1997
WL 344800, at *4 (Tenn. Crim. App. at Knoxville, June 24, 1997), perm. to appeal
denied, concurring in results only, (Tenn. 1998); State v. Brewer, No. 01C01-9308-
CR-00276, 1996 WL 63949, at *24 (Tenn. Crim. App. at Nashville, February 13,
1996); State v. Walls, No. 02C01-9307-CR-00140, 1995 WL 686104, at * 5 (Tenn.
Crim. App. at Jackson, November 15, 1995). Thus, in Bourff v. State, No. 03C01-
9705-CR-00189, 1998 WL 381970, at *3 (Tenn. Crim. App. at Knoxville), perm. to
appeal denied, (Tenn. 1998), we recently declined to find a Brady violation when the
State failed to provide to the defendant evidence of the victim’s prior convictions in
general sessions court. We observed that the convictions were a matter of public
record and not in the exclusive control of the State. Id. See also, e.g., Payne, 63
F.3d at 1208 (documents that are part of the public record are not deemed
suppressed if defense counsel should have known of them and failed to obtain them
because of lack of diligence in his own investigation). Similarly, in this case, Ms.
Crowe’s prior conviction in the Sullivan County General Sessions Court was a
matter of public record and available to the appellant. Tenn. Code. Ann. § 10-7-507
(1992).
Moreover, even if the State should have discovered Ms. Crowe’s prior
conviction and provided the information to the appellant, the evidence was not
material. The relevant question is whether, in the absence of this impeachment
evidence, the appellant received “a fair trial, understood as a trial resulting in a
21
verdict worthy of confidence.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566. See also
Edgin, 902 S.W.2d at 390; Irick, 973 S.W.2d at 657. We conclude that the
proceedings in the instant case satisfy this standard. This issue is without merit.
ii. Failure to Provide the Names and Addresses of all Potential
Witnesses to the Offense
The appellant also alleges that the State failed to provide him with the
name and address of the owner of the Station Bar, one Richard Ellis, the name and
address of Jimmy “J.J.” Cullop, and, possibly, the names and addresses or “other
eyewitnesses of whom the State is aware but has not informed [the appellant].” In
his pre-trial Motion for Discovery, the appellant asked that the State provide “the
names and addresses of all persons known to the District Attorney General or other
law enforcement officers to have been present at the time and place of the alleged
offense.” Again, the appellant contends that the State’s compliance with this
request was mandated by Tenn. R. Crim. P. 16 and Brady v. Maryland, 373 U.S. at
83, 83 S.Ct. at 1194.
Initially, Tenn. R. Crim. P. 16 does not require nor authorize pretrial
discovery of names and addresses of witnesses for the State, much less possible or
potential witnesses. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v.
Jones, No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at
Jackson, December 18, 1997), perm. to appeal denied, (Tenn. 1998). 7 However,
the Brady rule encompasses information about or statements of witnesses which
are favorable to a defendant. Smith v. State, No. 02C01-9801-CR-00018, 1998 WL
899362, at *6 (Tenn. Crim. App. at Jackson, December 28, 1998), perm. to appeal
7
The State correctly notes that Tenn. Code. Ann. § 40-17-106 (1997) is inapplicable, as the
State did not present the testimony of either Mr. Ellis or Mr. Cullop at trial, nor is there any indication
that th e Sta te eve r inten ded to rely u pon their te stim ony.
22
granted, (Tenn. 1999); Payne v. State, No. 02C01-9703-CR-00131, 1998 WL
12670, at *5 (Tenn. Crim. App. at Jackson), perm. to appeal denied, (Tenn. 1998).
Nevertheless, the appellant in this case has utterly failed to demonstrate that the
State suppressed any favorable and material evidence. See Edgin, 902 S.W.2d at
389, 390; Irick, 973 S.W.2d at 657; Welcome, No. 03C01-9709-CR-00386, 1998 WL
832433, at *10. Compare Marshall, 845 S.W.2d at 230-234 (this court found a clear
violation of Brady when the State withheld a list of witnesses who could possibly
have exonerated the defendant and statements by those witnesses which both
corroborated the defendant’s alibi and identified a possible alternative perpetrator).
Indeed, the appellant has failed to explain why this information would not have been
equally available to his attorney as well as the prosecutor. Marshall, 845 S.W.2d at
233; Moates, No. 03C01-9610-CR-00383, 1997 WL 344800, at *4; Brewer, No.
01C01-9308-CR-00276, 1996 WL 63949, at *24; Walls, No. 02C01-9307-CR-00140,
1995 WL 686104, at * 5. This issue is without merit.
C. The Admission at Trial of Testimony Concerning the Pending
Charge Against the Appellant of Custodial Interference
The appellant additionally argues that the trial court erroneously
permitted Ms. Rush to testify concerning a charge of custodial interference pending
against the appellant. The trial court conducted a hearing out of the presence of the
jury pursuant to Tenn. R. Evid. 404(b) and determined that the proposed testimony
was relevant to the appellant’s motive for the charged offense and that the probative
value of the disputed testimony was not outweighed by the danger of unfair
prejudice.
Rule 404(b) governs the admission at trial of evidence of a person’s
other crimes, wrongs, or acts as substantive evidence. A trial court should only
admit evidence of other crimes, wrongs, or acts if relevant to issues such as motive,
23
intent, identity, rebuttal of accident or mistake defenses, and the existence of a
larger continuing plan, scheme, or conspiracy of which the crime on trial is a part.
State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997), cert. denied, U.S. , 118 S.Ct.
2348 (1998). Assuming the trial court’s compliance with the procedural
requirements of Rule 404(b), its application of the rule will not be disturbed on
appeal absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997).
The record in this case warrants deference to the trial court’s
evidentiary ruling. During the appellant’s trial, Ms. Rush testified before the jury that,
immediately prior to assaulting her, the appellant inquired concerning a pending
court hearing which they were both to attend the following week. According to Ms.
Rush, she informed the appellant that she would attend the hearing. She further
remarked to the appellant, “ . . . I can’t let you keep doing the things you do, so I will
be there.” Contrary to the appellant’s assertion, the jury was never informed of the
nature of the court proceedings, only that the appellant and his ex-wife were
engaged in an ongoing legal dispute at the time of the appellant’s offense. We
agree with the trial court that Ms. Rush’s testimony was relevant to the appellant’s
motive and, accordingly, his intent to commit the offense of attempted second
degree murder. Moreover, it is readily apparent that the extremely limited testimony
at issue in no way prejudiced the appellant.
D. The Parties’ Stipulation Concerning the Appropriate Range of
Punishment
The appellant next contends that, during the appellant’s trial, the
parties stipulated that, if convicted, he would be sentenced as a Range II offender.
Moreover, the appellant asserts that, in reliance upon this stipulation, he waived his
statutory right to an instruction pursuant to Tenn. Code Ann. § 40-35-201(b)
24
(Repealed, May 18, 1998) on the possible penalties for the charged offenses. The
appellant concludes that the trial court’s failure to enforce the parties’ stipulation and
the court’s imposition of a Range III sentence are inconsistent with general
principles of sentencing set forth in Tenn. Code. Ann. § 40-35-102 (1997), including
the pursuit of justice and fair and consistent treatment of all criminal defendants.
The appellant does not otherwise challenge his sentence.
The record reflects that, on March 26, 1996, the State submitted a
“Notice of Intent to Seek Enhanced Punishment and To Inquire About Prior
Convictions If Defendant Elects to Testify,” which notice was amended on March 29,
1996. The amended notice set forth the following felony offenses:
1. One count of attempt to commit armed
robbery and one count of use of a firearm
on January 22, 1983, in Washington
County, Virginia.
2. Petit larceny on November 25, 1985, in
Sullivan County, Tennessee.
3. Sale of Marijuana on October 11, 1991 in
Sullivan County, Tennessee.
4. One count of sale of marijuana and one
count of sale of cocaine on October 14,
1991, in Sullivan County, Tennessee.
5. One count of sale of marijuana on October
18, 1991, in Sullivan County, Tennessee.
On the first day of the appellant’s trial, immediately prior to the
commencement of the trial, defense counsel filed a motion with the trial court 8
asking the trial court to instruct the jury pursuant to Tenn. Code. Ann. § 40-35-
201(b) on the possible penalties for the charged offenses of attempt to commit
second degree murder in Count I and intentional or knowing aggravated assault in
Count II. While discussing the possible penalties for the charged offense of attempt
8
Although the record of the trial proceedings reflects that a written motion was filed with the
trial court, this motion is not included in the record. At the sentencing hearing, the parties debated
whethe r a written or o ral mo tion had b een su bmitted to the cou rt.
25
to commit second degree murder, defense counsel observed that he had received
notice of the appellant’s status as a Range II offender and argued that the trial court
should only instruct the jury on the possible penalties within Range II. The trial court
disagreed. He indicated that, although he would not instruct the jury on possible
penalties for attempt to commit second degree murder exceeding Range II, he
would instruct the jury on possible penalties for that offense below Range II. The
trial court explained that the State might fail to prove the appellant’s Range II status
at the sentencing hearing. The trial court then asked defense counsel to submit a
proposed instruction.
Subsequently, following testimony by several witnesses for the
prosecution, the parties resumed their discussion with the trial court concerning the
proposed instruction pursuant to Tenn. Code Ann. § 40-35-201(b). The following
exchange between the trial court, the prosecutor (General Wilson), and defense
counsel (Mr. Spivey) 9 ensued:
The Court: Now, what I said a while ago,
I’m assuming the parties don’t
have any stipulations as to
what range, what length,
mitigated, Range I, Range II,
that the parties haven’t
reached any stipulation?
General Wilson: We haven’t, but I think -- as
Mr. Spivey mentioned earlier,
I think we can stipulate that
he would be Range II based
upon . . .
The Court: Couldn’t be more than Range
II?
General Wilson: Could not be more than
Range II.
The Court: Right. Because you haven’t
filed sufficient notice to make
him anything other than a
multiple offender.
General Wilson: That’s right, my -- my notice
9
The appellant was represented at trial by Richard A. Spivey and Mark D. Harris.
26
would -- would make him a
Range II.
Mr. Spivey: See, aggravated assault is not
-- not eligible for safety valve
reduction. So . . .
The Court: Well, see, look on your chart
there.
Mr. Spivey: Uh-hum. (Affirmative) I am.
The Court: Okay, it’s got -- it breaks it
down, it gives you one, then it
brings it down to that level.
Then it brings down to the
other level. Then if you’ve got
all of them, it brings it down.
So, you can look there. Let
me show you.
Mr. Spivey: Yeah, I see what you’re
saying, that’s exactly right.
The Court: See, if . . .
Mr. Spivey: 4.20.
The Court: Right. Well, you go . . .
Mr. Spivey: Maximum credit, safety valve.
He won’t get that.
The Court: Well, you can take the safety
valve out and compute it.
Mr. Spivey: Can you believe they’ve made
something so simple so
difficult? That’s pathetic.
The Court: That’s the way you got to do
it.
Mr. Spivey: Well . . .
The Court: I was . . .
Mr. Spivey: I agree . . .
The Court: Well, here’s the one we did in the --
remember that . . .
Mr. Spivey: Bob . . .
The Court: . . . disc jockey we did?
Mr. Spivey: Dave Carter.
The Court: That’s the way -- that -- that’s
before it changed. I think it’s
got different since then.
Mr. Spivey: No. No. We’re going to
withdraw the range of
punishment request.
The Court: All right.
Mr. Spivey: We’re taking it away.
The Court: Now, I’d review anything you
all submitted to me.
Mr. Spivey: I -- I will state for the record
that your position regarding us
giving you charges had
nothing to do with that
decision.
The Court: All right.
27
Mr. Spivey: I don’t -- yeah, I understand.
No, I will not rely on that on
appeal.
The Court: Okay. But you have that right.
You can require me . . .
Mr. Spivey: I understand that, but I’m not -
- we -- we don’t want it.
The Court: All right.
Mr. Spivey: Now, we do want all the
lesser included offenses.
The parties then proceeded to debate what lesser included or lesser grade offenses
the trial court should instruct to the jury.
Following the appellant’s conviction of reckless aggravated assault, the
trial court conducted a sentencing hearing on September 11, 1997. At the hearing,
the State argued that, with respect to his conviction of reckless aggravated assault,
the appellant was a Range III offender. Defense counsel objected to the imposition
of a Range III sentence, citing the State’s earlier stipulation. The following
exchange between the trial court, the prosecutor (General Wilson), and defense
counsel (Mr. Harris) ensued:
General Wilson: Well, Your Honor, please, if
convicted of the charge he
went to trial on, and the jury
went to deliberate, if convicted
of that, he would be a Range
II. But, they came back with a
D felony conviction, which
makes him a Range III
because he had five priors,
but he did not have sufficient
priors to count for a conviction
on a A or B conviction.
The Court: Did we -- yeah, because that
takes a specific kind of
conviction.
General Wilson: Yes, sir.
The Court: To Range II on it. Now, I can’t
remember at trial, did we
discuss charging of range of
punishment as to lesser and
included offenses?
Mr. Harris: Yes, Your Honor. Yes, Your
Honor. Maybe not specifically
28
each lesser included, but we
requested the lesser included
charge. You set those out,
what they would be. It would
go down to reckless
aggravated assault. It would
not be a reckless
endangerment because it was
not a lesser included of
attempted second degree,
and you would give this
misdemeanor assault. And
then we requested -- at that
time, we requested range of
punishment charge. And at
that time is when -- is when
the conversation took place
as to what range he was and
where the charge would come
from within the range.
The Court: Okay.
Mr. Harris: I mean if that -- if -- if that
would have been the case,
Your Honor, we would have
elected to have the charges
read as . . .
***
The Court: Okay. Now, but when the --
defense counsel says when
this was discussed at trial,
that on representation that the
Defendant was a Range II
Offender to the lesser
included offense he was
eventually convicted of, you
made a strategy decision not
to request range of
punishment.
Mr. Harris: Based on the representation,
that’s correct, Your Honor . . .
. I don’t see how the State
can say he’s a Range II and
then come back later now and
try to say he’s a Range III.
The Court: Well, there’s different ranges
for different classes of
offenses.
Mr. Harris: But, we -- we were talking
about the lesser includeds.
General Wilson: I don’t believe we were, Your
Honor.
29
Ultimately, the court concluded that the State’s stipulation to the appellant’s Range II
status was solely related to the original charge of attempt to commit second degree
murder and was not a stipulation to the appellant’s range with respect to any lesser
included offenses.
Although the appellant characterizes his claim as a challenge to his
sentence, implicit in his argument is his contention that the State’s
misrepresentation concerning its stipulation to the appellant’s status as a Range II
offender and the trial court’s imposition of a Range III sentence deprived him of his
statutory right to have the jury know the range of punishment applicable to the
charges before deciding guilt or innocence. State v. Cook, 816 S.W.2d 322, 326
(Tenn. 1991). The denial of a defendant’s statutory right under Tenn. Code. Ann. §
40-35-201(b) may constitute “prejudice to the judicial process,” requiring a reversal
of a defendant’s conviction. Id. at 326-327.
Nevertheless, whether characterized as a sentencing error or a
deprivation of his statutory right to a jury instruction on possible punishments for the
charged offenses, his argument depends upon the existence of a stipulation
between the parties to the appellant’s status as a Range II offender for purposes of
the lesser included offense of reckless aggravated assault. In short, we agree with
the trial court’s finding that, to the extent the State stipulated to the appellant’s
status as a Range II offender, the stipulation did not extend to possible punishments
for lesser offenses of attempt to commit second degree murder.
Our conclusion is inescapable upon a careful reading of the transcript.
The prosecutor indicated a willingness to stipulate to a Range II sentence upon the
trial court’s resumption of a conversation about the appropriate range of punishment
30
for the specific offense of attempt to commit second degree murder. The conclusion
that the prosecutor’s proffered stipulation was limited to sentencing for this offense
is buttressed by his observation to the trial court that his “Notice of Intent to Seek
Enhanced Punishment” only provided notice of the appellant’s status as a Range II
offender. Clearly, with respect to the offense of reckless aggravated assault as
opposed to attempt to commit second degree murder, the State’s notice supported
Range III sentencing. Moreover, contrary to the appellant’s assertion at the
sentencing hearing and in his brief, neither the trial court nor the parties had yet
determined the lesser offenses of attempt to commit second degree murder when
the prosecutor proffered the disputed stipulation.
We additionally note in passing that the record arguably does not
support the existence of any stipulation, much less the stipulation alleged by the
appellant. Generally, stipulations are favored and should be encouraged and
enforced by the courts, since they expedite the business of the courts. State v.
Ford, 725 S.W.2d 689, 691 (Tenn. Crim. App. 1986). It is all the more important,
therefore, for counsel to ensure that the existence and scope of any stipulation is
clearly reflected in the record. In this case, although the State indicated a
willingness to stipulate to the appellant’s status as a Range II offender with respect
to the charge of attempt to commit second degree murder, defense counsel did not
indicate the appellant’s agreement to forego any future challenge to his Range II
status before waiving the appellant’s right to the proposed instruction. See Cohen,
Sheppeard, and Paine, Tennessee Law of Evidence (1995) § 201.8, p.49 (“[s]ince a
stipulation requires an agreement, one party’s offer to stipulate does not create a
stipulation; both parties must agree before a stipulation occurs). See also Ford, 725
S.W.2d at 691(emphasis in original)(“[a] stipulation is an agreement between
counsel with respect to business before the court”). Indeed, in light of defense
31
counsel’s claim that their waiver of the appellant’s right under Tenn. Code. Ann. §
40-35-201(b) was contingent upon the alleged stipulation, we find it curious that
counsel made no attempt to clarify and confirm the existence and scope of the
parties’ agreement. This issue is without merit.
E. Newly Discovered Evidence
The appellant also contends that the trial court should have granted
his Motion for New Trial due to the availability following the appellant’s trial of
another eyewitness to the appellant’s offense. Specifically, the appellant contends
that Jimmy “J.J.” Cullop was a fugitive from justice during his trial. Subsequently,
the police apprehended Mr. Cullop who was thereafter available to testify
concerning the appellant’s offense. However, at the hearing on the appellant’s
Motion for New Trial, the appellant offered no proof concerning the content of Mr.
Cullop’s proposed testimony.
In order to obtain a new trial based upon newly discovered evidence,
the appellant must establish: (1) reasonable diligence in attempting to discover the
evidence; (2) the materiality of the evidence; and (3) that the evidence would likely
change the result of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994);
State v. Caldwell, 977 S.W.2d 110, 116 (Tenn. Crim. App. 1997), perm. to appeal
denied, (Tenn. 1998); State v. Perez, No. 03C01-9603-CC-00134, 1998 WL
851470, at *19 (Tenn. Crim. App. at Knoxville, December 10, 1998). The decision
to grant or deny a new trial on the basis of newly discovered evidence rests within
the sound discretion of the trial court. State v. Walker, 910 S.W.2d 381, 395 (Tenn.
1995); Caldwell, 977 S.W.2d at 117; Perez, No. 03C01-9603-CC-00134, 1998 WL
851470, at *19. In the instant case, the appellant has patently failed to demonstrate
his right to a new trial or any abuse of discretion by the trial court.
32
F. Sufficiency of the Evidence
Finally, the appellant challenges the sufficiency of the evidence
supporting his conviction of reckless aggravated assault. In Tennessee, appellate
courts accord considerable weight to the verdict of a jury in a criminal trial. In
essence, a jury conviction removes the presumption of the defendant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of
demonstrating to this court why the evidence will not support the jury’s findings.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish
that no “reasonable trier of fact” could have found the essential elements of reckless
aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn therefrom.
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions
concerning the credibility of witnesses and 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, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).
As noted earlier, in order to commit reckless aggravated assault, a
person must recklessly cause bodily injury to another, and the bodily injury must be
serious. Tenn. Code. Ann. § 39-13-102(a)(2)(A); Tenn. Code. Ann. § 39-13-
101(a)(1). Bodily injury “includes a cut, abrasion, bruise, burn or disfigurement;
physical pain or temporary illness or impairment of the function of a bodily member,
organ, or mental faculty . . . .” Tenn. Code. Ann. § 39-11-106(a)(2) (1995). In
contrast, serious bodily injury requires a substantial risk of death or extreme physical
33
pain. Tenn. Code. Ann. § 39-11-106(a)(34)(A) and (C). The distinction between
bodily injury and serious bodily injury is a question of fact for the jury and not a
question of law. State v. Barnes, 954 S.W.2d 760, 765-766 (Tenn. Crim. App.
1997).
Briefly revisiting the evidence adduced at trial and viewing the
evidence in a light most favorable to the State, the record reflects that the appellant
initiated a physical confrontation with his ex-wife in the parking lot of the Station Bar.
During the course of the fight, Ms. Rush sprayed the appellant with pepper spray,
whereupon the appellant withdrew a knife and stabbed her four times. One of the
stab wounds penetrated Ms. Rush’s liver, causing her liver to bleed into her
abdominal cavity. She was placed in the intensive care unit of the Bristol Regional
Medical Center and remained at the Medical Center for four days. We conclude
that the record clearly reflects that the appellant recklessly caused Ms. Rush bodily
injury. Moreover, we conclude that the evidence adduced at trial supported a finding
that Ms. Rush’s injuries both created a substantial risk of death and extreme
physical pain. Tenn. Code. Ann. § 39-11-106-(a)(34)(A) and (C). Although Ms.
Rush’s vital signs remained within normal ranges, serious bodily injury does not
require an imminent risk of death, only a substantial risk. Tenn. Code. Ann. § 39-
11-106-(a)(34)(A). A rational juror could conclude beyond a reasonable doubt that
the six centimeter stab wound which penetrated Ms. Rush’s liver created a
substantial risk of death. Moreover, while this court has conceded the difficulty of
quantifying or measuring pain, the testimony at trial supported a conclusion that the
pain caused by the four stab wounds was sufficiently severe to be placed in a class
with an injury involving a substantial risk of death. State v. Sims, 909 S.W.2d 46, 49
(Tenn. Crim. App. 1995).
34
However, the appellant argues that the State failed to negate his
argument at trial that he acted in self-defense. Tenn. Code. Ann. § 39-11-611(a)
(1997) sets forth the components of a defense of self-defense: (1) the victim used or
attempted to use unlawful force against the accused; (2) the accused reasonably
believed that he was threatened with imminent death or serious bodily injury, i.e.,
the belief was founded upon reasonable grounds; and (3) the danger of imminent
death or serious bodily injury was real or the accused honestly believed that the
danger was real at the time of the accused’s threat or use of force. “The [S]tate has
the burden of proof to negate the defense; the burden is not upon the defendant to
prove the defense exists.” State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App.
1996). Whether the State has met its burden is a question for the jury to determine.
State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Dean, No.
03C01-9508-CC-00251, 1997 WL 7550, at *6 (Tenn. Crim. App. at Knoxville,
January 10, 1997). We conclude that the record supports the jury’s resolution of
this issue in favor of the State.
Initially, the defense of self-defense is only applicable when the other
party is using or attempting to use “unlawful force.” Tenn. Code. Ann. 39-11-611(a).
Given the trial court’s full and complete instruction on the law of self-defense, a
rational juror could have concluded beyond a reasonable doubt that Ms. Rush was
lawfully defending herself against the appellant’s assault when she sprayed the
appellant with pepper spray, particularly in light of the appellant’s statement that he
was carrying a knife.10 See State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App.
1996)(while emphasizing the State’s burden of negating the defense of self-defense
10
The State in its brief also cites Tenn. Code. Ann. § 38-2-102 (1997), which provides that
“[r]esistance sufficient to prevent [an] offense may be made by the party about to be injured to prevent
an: (1) Offense against the party’s person . . . .” This provision is implicit in the statute setting forth the
defense of self-defense. The State’s citation emphasizes the point that, when evaluating a claim of
self-defense, a factor in the jury’s analysis must be whether or not the State has proved beyond a
reasonable doubt that the vic tim ’s cond uct w as law ful.
35
beyond a reasonable doubt, this court observed that the defense set forth in Tenn.
Code. Ann. § 39-11-611(a) arises only when a defendant is protecting himself from
unlawful force).
In any event, even assuming that Ms. Rush’s act in spraying the
appellant with pepper spray constituted “unlawful force,” the evidence adduced at
trial supported a finding beyond a reasonable doubt that the appellant provoked Ms.
Rush’s use of pepper spray and did not subsequently abandon the encounter or
clearly communicate an intent to do so. Tenn. Code. Ann. § 39-11-601(d) (1997),
See also State v. Alford, No. 02C01-9509-CC-00281, 1996 WL 551787, at *3 (Tenn.
Crim. App. at Jackson, September 30, 1996), vacated in part on other grounds,
State v. Alford, 970 S.W.2d 944 (Tenn. 1998)(because the appellant was the initial
aggressor, self-defense was not justified unless he abandoned the encounter or
clearly indicated to the victim the intent to do so). We acknowledge that, contrary to
the testimony of the witnesses for the prosecution, Mr. Gross testified that Ms. Rush
first verbally assailed the appellant and that, during the ensuing fight, he overheard
the appellant exclaim, “[G]et away, stay back.” Nevertheless, we will not reweigh
the credibility of the witnesses at trial. Pruett, 788 S.W.2d at 561.
Finally, a rational juror could have concluded beyond a reasonable
doubt that the appellant did not possess a reasonable belief that he was in imminent
danger of death or serious bodily injury. The record does reflect that, in response to
the appellant’s initial assault and prior to the stabbing, Ms. Rush sprayed the
appellant with pepper spray. Moreover, the record reflects that, at some point
during the appellant’s assault, he was blinded by the pepper spray. Further,
defense counsel adduced testimony at trial that Ms. Rush had previously assaulted
the appellant. However, the record is devoid of evidence that Ms. Rush had
36
previously inflicted upon the appellant bodily injury or threatened him with serious
bodily injury or death. Additionally, the record is devoid of evidence that Ms. Rush,
Ms. Crowe, or Mr. Cullop threatened the appellant on the night in question or were
armed with anything more than pepper spray. Indeed, during the course of the fight,
the only force applied against the appellant comprised Ms. Rush’s use of the pepper
spray and Ms. Crowe’s repeated attempts to push or pull the appellant away from
Ms. Rush. Additionally, although the appellant asserts that he was “outnumbered
three to one,” there is no evidence in the record that Mr. Cullop participated or
attempted to participate in the fight in any way. To the contrary, the testimony at
trial strongly suggests that Mr. Cullop fled as soon as the fight began. In all cases of
self-defense, the force used must be reasonable, considering all of the
circumstances. State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995). Again,
considering all of the circumstances in this case, the jury was entitled to find that the
appellant did not possess a reasonable belief in danger justifying the repeated
stabbing of his ex-wife.
The appellant also contends that the State failed to negate beyond a
reasonable doubt the defense of necessity. Tenn. Code. Ann. § 39-11-609 (1997)
provides:
Except as provided in §§ 39-11-611-39-11-621, conduct
is justified if:
(1) The person reasonably believes the
conduct is immediately necessary to avoid
imminent harm; and
(2) The desirability and urgency of avoiding
harm clearly outweigh, according to
ordinary standards of reasonableness, the
harm sought to be prevented by the law
proscribing the conduct.
(Emphasis added). We initially question the applicability of this defense to a
defendant’s threat or use of force against another person in light of the introductory
clause emphasized above. State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App.
37
1994)(although this court is not at liberty to choose or reject any particular defense
for a particular offense, this prerogative does lie with the legislature). In any event,
the record supports the jury’s rejection of this defense. This issue is without merit.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
CONCUR:
Gary R. Wade, Presiding Judge
Cornelia A. Clark, Special Judge
38