FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
June 29, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate C ourt
JANUARY 1999 SESSION Clerk
STATE OF TENNESSEE, )
)
Appellant, ) C.C.A. No. 03C01-9712-CR-00541
)
vs. ) Knox County
)
LESTER DOUGLAS BELL, ) Hon. Richard Baumgartner, Judge
)
Appellee. ) (Misdemeanor Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
PAULA R. VOSS and ELLEN H. POLLACK
JAMIE LYNN NILAND Assistant Attorney General
Assistant Public Defenders 425 Fifth Ave. N., 2d Floor
1209 Euclid Avenue Nashville, TN 37243-0493
Knoxville, TN 37921
RANDALL E. NICHOLS
District Attorney General
JANET S. GURWITCH
Assistant District Attorney
400 Main, P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Lester Douglas Bell, appeals from his conviction of
misdemeanor assault1 in the Knox County Criminal Court. The trial court imposed
a sentence of eleven (11) months and twenty-nine (29) days to be suspended after
serving the first 30 days in confinement. In this direct appeal, the defendant raises
four issues:
I. Whether the trial court erred in denying the defendant’s motion
for a court reporter to be provided by the state.
II. Whether the evidence was sufficient to support the jury’s verdict
and whether the trial court erred in failing to set aside the
verdict.
III. Whether there was prosecutorial misconduct in the following:
a. Eliciting testimony regarding the defendant’s history of
violence in his relationship with the victim;
b. During voir dire, continuously using the term
“domestic violence”;
c. During voir dire, telling the jury to assess the defendant’s
credibility by the fact that he had a strong interest in the
outcome of the case.
IV. Whether the trial court erred in denying full probation and
ordering an excessive sentence.
After a review of the record and the briefs of the parties, we affirm the judgment of
the trial court.
On November 14, 1995, Sherri Bell, the defendant’s wife at that time,
went to meet her friends at Applebee’s after work. She called the defendant to tell
him where she was going and asked him to pick up their daughter. Sometime later
that evening, the defendant and the daughter went to Applebee’s to locate Mrs. Bell.
The defendant approached Mrs. Bell and asked her to leave. Mrs. Bell said she
would leave “shortly” and the defendant left the restaurant. A few minutes later, the
defendant returned to Mrs. Bell’s table at Applebee’s. Mrs. Bell testified that the
defendant grabbed her glass and told her to leave. Mrs. Bell told the defendant to
leave the restaurant and said the daughter should stay there with her. Mrs. Bell
1
Tenn. Code Ann. § 39-13-101(a)(1) (1997).
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testified that the defendant shoved her and caused her to fall and hit her head and
nose. The defendant testified that Mrs. Bell slapped him as he was reaching for his
daughter and that he pushed Mrs. Bell after she slapped him. The defendant stated
that Mrs. Bell fell off her stool while trying to slap him. The defendant left with their
screaming daughter as Mrs. Bell followed them through the restaurant. Mrs. Bell
testified that the defendant “backhanded” her. The defendant testified that Mrs. Bell
hit him on the back of the head.
Donald Gorski was sitting at the table with Mrs. Bell. Mr. Gorski
testified that he did not hear the conversation between the Bells. He testified that
he did not see Mrs. Bell hit the defendant, nor did he see the defendant shove or
backhand Mrs. Bell. He saw Mrs. Bell on the floor after she had fallen, but he did
not know how she got there. He saw Mrs. Bell with her ear and nose bleeding after
the defendant left the restaurant. He “presumed” that the defendant hit her.
On this evidence, the jury found the defendant guilty of misdemeanor
assault.
I. Court Reporter
The defendant challenges the trial court’s denial of his motion for a
court reporter to be provided at state expense at his misdemeanor trial. In
Tennessee, a defendant in a misdemeanor trial is not automatically provided with
a court reporter at state expense.2 Therefore, a verbatim transcript will be
2
Tennessee Code Annotated section 40-14-307(a) states: “A designated
reporter shall attend every stage of each criminal case before the court and shall
record verbatim . . . all proceedings had in open court and such other
proceedings as the judge may direct.” Tenn. Code Ann. § 40-14-307(a) (1997).
A criminal case is defined as “the trial of any criminal offense which is punishable
by confinement in the state penitentiary.” Tenn. Code Ann. § 40-14-301(3)
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unavailable on appeal unless the defendant employs a court reporter. When a
verbatim transcript is unavailable, an appellant may prepare a statement of the
evidence. Tenn. R. App. P. 24(c). The appellee may file objections to the
statement of the evidence, and the trial court shall decide what is properly
includable in the statement of the evidence. Tenn. R. App. P. 24(c), (e).
An indigent defendant “must be afforded as adequate appellate review
as defendants who have money enough to buy transcripts.” Griffin v. Illinois, 351
U.S. 12, 19, 76 S. Ct. 585, 591 (1956). Indigent defendants in both felony and
misdemeanor cases have the right to adequate appellate review. Mayer v. City of
Chicago, 404 U.S. 189, 195-96, 92 S. Ct. 410, 415 (1971) (citing Williams v.
Oklahoma City, 395 U.S. 458, 459, 89 S. Ct. 1818, 1819 (1969)). The state must
provide an indigent defendant with a “‘record of sufficient completeness’ to permit
proper consideration of (his) claims.” Draper v. Washington, 372 U.S. 487, 499, 83
S. Ct. 774, 781 (1963) (quoting Coppedge v. United States, 369 U.S. 438, 446, 82
S. Ct. 917, 921 (1962)). “A ‘record of sufficient completeness’ does not translate
automatically into a complete verbatim transcript.” Mayer, 404 U.S. at 194, 92
S. Ct. at 414. Accordingly, we must review the sufficiency of the “Amended
Statement of the Evidence” filed by the defendant to ensure that the defendant’s
claims may be properly reviewed on appeal. See State v. Gallagher, 738 S.W.2d
624, 626 (Tenn. 1987).
The defendant’s statement of the evidence is a very detailed account
of the trial proceedings. The state and the trial judge approved the statement of the
evidence. However, the defendant contends that a verbatim transcript is necessary
in order “to portray the nuances and details of the witnesses’ testimony and the
(1997).
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rulings of the trial judge.” There is no indication that the defendant was prevented
from including any information in the statement of the evidence due to state or trial
court objection. We find that the statement of the evidence sufficiently describes
the witnesses’ testimonies and the trial judge’s rulings upon which this appeal is
based. The trial court did not err by denying the defendant’s motion for a court
reporter.
II. Sufficiency and the Thirteenth Juror Rule
A.
Next, the defendant challenges the sufficiency of the evidence. When
an accused challenges the sufficiency of the evidence, an appellate court’s
standard of review is whether, after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
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the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
The defendant challenges the sufficiency of the evidence by saying
“the state could present no corroboration of the victim’s story, nor could it overcome
the testimony of the accused.” This court should not reweigh or reevaluate the
evidence. Matthews, 805 S.W.2d at 779. The jury obviously accredited the
testimony of the victim and discredited the testimony of the defendant. The
defendant admitted pushing the victim. In the light most favorable to the state, the
defendant “intentionally . . . cause[d] bodily injury to another” by shoving the victim
such that she fell and injured her ear and nose. Tenn. Code Ann. § 39-13-101(a)(1)
(1997). Therefore, the evidence sufficiently supports the defendant’s conviction for
misdemeanor assault.
B.
The defendant contends that there is no proof in the record that the
trial judge performed his duty to act as the thirteenth juror. See Tenn. R. Crim. P.
33(f). In a criminal case, the trial judge has a mandatory duty to independently
weigh the evidence to determine that it conforms with a jury’s verdict. See State v.
Carter, 896 S.W.2d 119, 122 (Tenn. 1995). In Carter, the Tennessee Supreme
Court described the standard of appellate review for the issue of whether a trial
judge has acted as the thirteenth juror:
[W]hen the trial judge simply overrules a motion for
new trial, an appellate court may presume that the trial
judge has served as the thirteenth juror and approved
the jury’s verdict. Nonetheless, where the record
contains statements by the trial judge expressing
dissatisfaction or disagreement with the weight of the
evidence or the jury’s verdict, or statements indicating
that the trial court absolved itself of its responsibility to
act as the thirteenth juror, an appellate court may
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reverse the trial court’s judgment.
Id. (citations omitted). In this case, the trial judge overruled a motion for a new trial
and there is no evidence of any statements made by the trial judge at any time
which would indicate disagreement with the jury’s verdict. Therefore, we may
presume that he fulfilled his duty as the thirteenth juror and approved the jury’s
verdict.
However, the defendant argues that this court is precluded from
presuming that the trial judge fulfilled his duty as the thirteenth juror because there
is no transcript of the hearing on the motion for a new trial. The Tennessee
Supreme Court stated that the trial judge does not have to explicitly state on the
record approval of the jury’s verdict. See id. at 120. Accordingly, the lack of a
record is not relevant for this determination. In the absence of any indication in the
statement of evidence that the trial judge affirmatively abdicated his role as the
thirteenth juror or expressed dissatisfaction with the weight of the evidence, the trial
judge’s denial of the motion for a new trial is the only relevant information needed
to presume that he fulfilled his duty as the thirteenth juror.
III. Prosecutorial Misconduct
The defendant contends that there was prosecutorial misconduct in
the following actions: (a) eliciting testimony regarding the defendant’s history of
violence in his relationship with the victim, (b) during voir dire, continuously using
the term “domestic violence,” and (c) during voir dire, telling the jury to assess the
defendant’s credibility by the fact that he had a strong interest in the outcome of the
case. To establish a claim for prosecutorial misconduct, the defendant must prove
that the “improper conduct could have affected the verdict to the prejudice of the
defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)
7
A. Testimony of the Defendant’s History of Violence
The defendant contends that the prosecutor should not have elicited
certain statements from the victim implying that the defendant had abused the
victim in the past. The defendant argues this prosecutorial misconduct was used
to bolster the state’s “weak” case by placing inadmissible evidence before the jury.
The defendant claims this is inadmissible evidence of other crimes, wrongs, or acts,
which is governed by Tennessee Rule of Evidence 404(b). 3 The defendant filed a
pre-trial motion for the state to provide notice of the use of evidence of other crimes,
wrongs, or acts. Defense counsel stated on the record that no notice had been
given by the state to use such evidence. The prosecutor announced that the state
did not intend to present evidence of other crimes, wrongs, or acts. The trial judge
ordered the state to approach the bench before presenting any 404(b) evidence
during trial. When defense counsel objected to certain testimony for lack of a jury
out hearing as ordered pre-trial, the trial court overruled the objection and allowed
the testimony.
3
This rule states as follows:
(b) Other Crimes, Wrongs, or Acts. -- Evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity with the character trait. It may,
however, be admissible for other purposes. The
conditions which must be satisfied before allowing
such evidence are:
(1) The court upon request must hold a hearing
outside the jury’s presence;
(2) The court must determine that a material issue
exists other than conduct conforming with a character
trait and must upon request state on the record the
material issue, the ruling, and the reasons for
admitting the evidence; and
(3) The court must exclude the evidence if its
probative value is outweighed by the danger of unfair
prejudice.
Tenn. R. Evid. 404(b).
8
The objectionable testimony was: (1) the victim “had seen that look
before,” (2) the victim “knew there would be an altercation,” (3) the defendant and
the victim “had problems in the past,” and (4) the victim “knew there would be a
fight, verbal or physical.”
Generally, character evidence is inadmissible to prove action in
conformity with the character or trait on a particular occasion. Tenn. R. Evid.
404(a). However, character evidence is admissible for other purposes if it is
relevant and has probative value which is not substantially outweighed by unfair
prejudice. Tenn. R. Evid. 401-403. The standard of review applicable to the
decision to admit evidence is abuse of discretion. State v. Dubose, 953 S.W.2d
649, 652 (Tenn. 1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App.
1980). When the evidence falls within Rule 404(b), the standard of review is the
same if the trial judge has substantially complied with the procedural requirements
of the rule. Dubose, 953 S.W.2d at 652. However, if the trial judge does not
substantially comply with the procedural requirements of Rule 404(b), then no
deference is given to the trial judge’s decision. Id.
In order to determine which evidentiary rule or rules apply, we must
assess the nature of the testimony offered. The parties are not disputing the
relevance of the evidence. The defendant and the state treated this evidence as
404(b) evidence of other crimes, wrongs, or acts.
Whether these statements were evidence of other crimes, wrongs, or
acts under Rule 404(b) or were statements of general character evidence under
Rule 404(a), the statements fall within the general rule of admissibility in Tennessee
that evidence of the defendant’s prior violent actions or threats against the victim
are admissible to show intent or state of mind of the accused. See State v. Ray,
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880 S.W.2d 700, 704 (Tenn. Crim. App. 1993); State v. Glebock, 616 S.W.2d 897,
905-06 (Tenn. Crim. App. 1981); Hull v. State, 553 S.W.2d 90, 93 (Tenn. Crim. App.
1977). Such prior violent “relations [between the parties] indicate hostility toward
the victim and a settled purpose to harm or injure her.” Glebock, 616 S.W.2d at
905. The statements tend to show, as the state argues in its brief, that the injuries
to the victim were not accidental. We find that the trial judge did not err in admitting
these statements. Because the statements were admissible, there was no
prosecutorial misconduct in eliciting the statements.
B. Use of Phrase “Domestic Violence”
The defendant contends that there was prosecutorial misconduct
during voir dire when the prosecutor continually used the phrase “domestic
violence.” The prosecutor asked potential jurors “if they felt it was proper for the
state to get involved in domestic violence cases,” and “if domestic violence
defendants should be treated more leniently than strangers in assault cases.”
Defense counsel objected and the trial judge sustained the objection, instructing the
prosecutor to discontinue use of the phrase and refer only to “assaults.” The
prosecutor continued to use the phrase “domestic violence.” The defendant argues
that the jury became prejudiced against the defendant because of these remarks.
The state argues that these remarks did not affect the outcome of the case.
To determine whether prosecutorial misconduct affected the verdict
to the prejudice of the defendant, five factors should be considered. The five
factors to be considered are:
(1) [t]he conduct complained of viewed in context and in
light of the facts and circumstances of the case,
(2) [t]he curative measures undertaken by the court and
the prosecution,
(3) [t]he intent of the prosecutor in making the improper
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statement,
(4) [t]he cumulative effect of the improper conduct and
any other errors in the record, [and]
(5) [t]he relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
The first factor requires viewing the conduct in context. In this case,
the context of the alleged misconduct was during voir dire. The purpose of voir dire
is to inform counsel of a juror’s qualification, interest and possible bias. State v.
Onidas, 635 S.W.2d 516, 517 (Tenn. 1982). “[The] proper fields of inquiry include
the juror’s occupation, habits, acquaintanceships, associations and other factors,
including his experiences, which will indicate his freedom from bias.” Id. (quoting
Smith v. State, 327 S.W.2d 308, 318 (Tenn. 1959) (citations omitted)). In this
context, the questions regarding domestic violence seem to have been asked to
determine if there was any bias among potential jurors. However, the continued use
of the phrase domestic violence may not have been proper.
The curative measures taken by the trial judge were not effective
because the prosecutor continued using the phrase after being instructed to use the
phrase “assault” instead of “domestic violence.” The intent of the prosecutor is not
clear. However, we cannot conclude, as the defendant has, that the prosecutor
intended to inflame the passions of the jury and prejudice the jury against the
defendant simply by using the phrase “domestic violence.” The prosecutor, by
referring to the problem of domestic violence, may have been appealing to the jury
to act as the community conscience. Appealing to the jury to act as the community
conscience is not necessarily prosecutorial misconduct. See State v. Pulliam, 950
S.W.2d 360, 368 (Tenn. Crim. App. 1996). However, the prosecutor should not
have disobeyed the trial judge’s order to discontinue using the phrase “domestic
11
violence.”
The factor regarding the cumulative effect of the use of “domestic
violence” with other errors does not need to be considered because we find no other
errors. The last factor, the relative strength or weakness of the case, weighs in
favor of the state. Although the state’s entire case consisted of the victim’s
testimony and another witness’ testimony, if the jury believed these witnesses, then
the case was strong and solid against the defendant. The “domestic violence”
comments did not enhance the state’s case. Accordingly, we find that the
continuous use of the phrase “domestic violence” did not constitute prosecutorial
misconduct in this case because the comments did not affect the verdict.
C. Comment on the Defendant’s Credibility
The third instance of alleged prosecutorial misconduct was during the
prosecutor’s voir dire examination of the jury pool. The prosecutor asked the
potential jurors “if they could take into account that the defendant in a criminal case
has an interest in the outcome of the case when considering the defendant’s
credibility.” The trial judge overruled defense counsel’s objection to this comment
once the state responded that “they were not saying the defendant was not to be
believed.” The defendant argues that this comment resulted in prejudice to the
defendant and the judicial process as a whole.
The context of this comment was during voir dire. As stated above,
the purpose of voir dire is to assess the potential jurors’ qualifications, interests and
possible biases. Voir dire is not the context in which to inform potential jurors about
credibility issues. Usually the trial judge will instruct jurors about credibility issues
after the trial has begun, not during voir dire. Neither the trial judge nor the
prosecutor undertook curative measures. The intent of the prosecutor is not clear,
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but we find no intent to prejudice the defendant by this comment. The cumulative
effect is not an issue because there are no other errors. As stated above, the
state’s case was relatively strong. “[The prosecutor] was merely pronouncing a
profound truth which the trial jurors already knew if they were giving careful attention
to the issues.” Shelton v. State, 479 S.W.2d 817, 820 (Tenn. Crim. App. 1972).
Considering all the factors, we find that this comment did not constitute
prosecutorial misconduct.
IV. Sentencing
The defendant challenges the sentence imposed as excessive and
argues that immediate probation should have been granted. In determining whether
the trial court has properly sentenced an individual, this court engages in a de novo
review of the record with a presumption that the trial court's determinations were
correct. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting our de novo
review, we must consider the evidence at sentencing, the presentence report, the
sentencing principles, the arguments of counsel, the statements of the defendant,
the nature and characteristics of the offense, any mitigating and enhancement
factors, and the defendant’s amenability to rehabilitation. Tenn. Code Ann. § 40-35-
210(b) (Supp. 1998); Tenn. Code Ann. § 40-35-103(5) (1997). On appeal, the
appellant has the burden of showing that the sentence imposed is improper. Tenn.
Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997).
In felony sentencing, the trial court has an affirmative duty to state in
the record, either orally or in writing, which enhancement and mitigating factors it
found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code
Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn.
1998). In contrast, the misdemeanor sentencing statute only requires that the trial
court consider the enhancement and mitigating factors when calculating the
13
percentage of the sentence to be served "in actual confinement" prior to
"consideration for work release, furlough, trusty status and related rehabilitative
programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at
274.
In determining whether to grant probation, the judge must consider the
nature and circumstances of the offense, the defendant’s criminal record, his
background and social history, his present condition, including his physical and
mental condition, the deterrent effect on other criminal activity, and the likelihood
that probation is in the best interests of both the public and the defendant. Stiller
v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bears the burden of
establishing suitability for probation, even when the defendant is presumed to be
eligible for probation. See Tenn. Code Ann. §§ 40-35-303(a)-(b) (1997).
At the sentencing hearing, defense counsel presented evidence of the
defendant’s work history, military background, educational background, and
volunteer work. His criminal record consisted of three prior offenses, two
convictions from the late 1970s and one federal conviction. One of the convictions
from the late 1970s was for assault, but there is no evidence regarding the
circumstances of that conviction.
We review the trial court’s decision with a presumption of correctness.
The trial judge stated his concern about the defendant’s “failure to recognize his
responsibility for this conduct.” The trial judge considered the defendant’s prior
criminal history but found little significance in two of the previous convictions. The
only conviction the trial judge found to be significant was a twenty year old assault
conviction.
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The Tennessee Supreme Court has stated that “there is no rule in this
State requiring a Defendant to admit his guilt in order to seek probation.” State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983) (citing State v. Gautney, 607 S.W.2d
907, 910 (Tenn. Crim. App. 1980)). The Bunch court held that reversal would be
required if the sole basis for a trial court’s denial of probation was that the defendant
did not admit guilt. Bunch, 646 S.W.2d at 160. The defendant argues that reversal
is required here because his failure to admit guilt was the sole basis for denial of
probation. We disagree.
In denying probation, the trial judge made findings regarding the
nature and circumstances of the offense, the defendant’s prior criminal history, and
the defendant’s potential for rehabilitation. The defendant has failed to carry the
burden of establishing immediate probation suitability in the trial court and on
appeal. From our review of the sentencing hearing transcript, we find that the trial
judge properly ordered a short period of incarceration.
In consideration of the foregoing, the judgment of the trial court is
affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
JOHN K. BYERS, SENIOR JUDGE
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