State v. Darrell Emerson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBE R SESSION, 1996 FILED March 12, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9312-CC-00276 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON DARRELL LEE EMERSON, ) JUDGE ) Appe llant. ) (Direct Ap peal) FOR THE APPELLANT: FOR THE APPELLEE: MIKE MOSIER JOHN KNOX WALKUP 204 W est Baltimore Attorney General and Reporter P. O. Box 1623 Jackson, TN 38302-1623 WILLIAM DAVID BRIDGERS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 JERRY W OODALL District Attorney General NICK NICOLA Assistant District Attorney P. O. Box 2825 Jackson, Tn 38302 OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE OPINION On May 19, 1995, a Madison County Circuit Court jury found Appellant Darre ll Lee Emerson guilty of attempted second-degree murder, aggravated assau lt, two co unts o f reckle ss en dang erme nt, pos sess ion of m arijuana with intent to sell, possession of marijuana with intent to deliver, possession of drug paraphernalia, and poss essio n of a d eadly w eapo n with in tent to e mplo y it during the commission of a felony. T he trial judg e merg ed the p ossess ion with inte nt to deliver conviction with the conviction for possession with intent to sell. As a Range I standard offender, Appellant was sentenced to twelve years for attempted second-d egree m urder, six years for aggravated assault, two years for each count of reckless en dange rment, tw o years fo r posse ssion of m arijuana w ith intent to sell, eleven months and twenty-nine days for possession of drug parap herna lia, and two years for p ossess ion of a de adly wea pon with intent to employ it during the comm ission of a fe lony. All sentences were ordered to run concurrently. On appeal, Appellant raises the following issues: 1) Whether the evidence is sufficient, as a matter of law to s uppo rt his convictions for attempted second-degree murder, aggravated assau lt, and two counts o f reckless endan germe nt, 2) Whether the trial court abused its discretion in permitting police officers to testify that they alw ays complied with the “knock and announce” rule and permitting the police officers to demonstrate how they allegedly complied with that rule, 3) Wh ether the trial court pro perly overru led App ellant’s motion to suppress, 4) Wh ether the trial court com mitted pr ejudicial erro r in denyin g Appe llant’s request for spe cial jury instructions on self-defense, the “knock and announce” rule, and character evidence, and 5) W hether th e trial court p roperly se ntence d Appe llant. After a carefu l review of the record, w e reverse all of Appellant’s convictions, dismiss the conviction for aggravated assault, attempted second degree murder -2- and merge the two co unts of reckless endangerment into one, and remand for re- trial on the re mainin g coun ts of the ind ictmen t. I. Factual Background Suspecting Appellant of possessing and dealing m arijuana, police officers obtained a search warrant for Appellant’s home located in Jackson, Tennessee. After obtain ing the warra nt, office rs from the Ma dison Coun ty She riff’s Depa rtment, the Jackson Police Department, and the 26th Judicial District Drug Task Force went to Appellant’s house on December 1, 1993 to execute the warran t. The o fficers d ivided in to a front door and a rear door team . Mark Cald well, Danny Mullikin, Alphonzo Newburn, Donald Holland, and James Truelove were members of the front door team. Thomas Coleman, Matthew Hardaw ay, and Glenn Penney were members of the back door team. According to the plan o f entry, the fron t door team would announce their presence and attempt to gain entry. Once the team s were in place, the front doo r team trie d to pry open Appe llant’s sc reen d oor bu t were u nsuc cess ful. They th en rippe d it off and bega n kno cking on the wood en do or at the front of th e hou se. W hile knocking, they yelled, “Police. Sea rch W arran t.” At this p oint, O fficer C aldwe ll heard noises inside the house that sounded as if someone was running from the front of the house to the rear of the house. Afraid that Appellant was attempting to flush his marijuana down the toilet, Caldwell and Newburn began kicking the front door down. As they did so, officers continued to yell “Police. Search W arrant.” After several kicks, the front door gave way and the front door team entered the house. As Caldw ell entered the house, Appellant shot him, striking him in the neck. Mullikin and several other officers then struggled with Appellant to restrain him. S hortly a fter the fr ont do or team bega n kickin g on A ppella nt’s -3- door, the rear door team began knocking on Appellant’s rear door while yelling, “Police. Search Wa rrant.” The rear door team then b egan batterin g App ellant’s rear door with a battering ram. When they entered the house, they heard a poppin g soun d and s melled gunpo wder. At trial, the d efens e argu ed tha t on the night of December 1, 1993, Appellant was at home watching television when he heard someone fiddling with his screen door. Fearful for his life, he went to h is bedroom to retrieve a gun. Appellant claimed that he never heard anyone yell “P olice. Sea rch W arrant.” According to Appellant, as soon as he realized that he had shot a police officer he threw do wn his w eapon and su rrendere d. Appe llant testified on his own beha lf claim ing tha t he wa s actin g in self-defense. Ap pellant’s neighbo rs testified that they never heard anyone shout “Police. Search Warrant.” Several people testified on behalf of Appellant that he was a truthful person. At the suppression hearing, the proof submitted by the State showed that Newburn used a screwdriver to pry open the screen door but was unable to do so. He then ripped the door open. Caldwell proceeded to knock on the wooden door, yelling “Police. Search W arran t.” After k nock ing an d ann ounc ing his presence, Caldwell heard someone inside the house running toward the rear of the house. In response, Caldwell and Newburn began kicking the door in. Officer Colem an, part o f the back door tea m hea rd the fron t door team yelling “police search warrant,” a nd beg an prep aring to bre ach the rear doo r. Once he heard the front door being breached he yelled “police. Search Warrant,” and then breached the rear d oor. The trial cou rt found that the police had la wfully entered Appellant’s home, and therefore admitted the evidence found in the search. -4- II. Sufficiency of the Evidence Appellant mainta ins that the evidenc e was ins ufficient as a matter of law to support his convictions for attempted second-degree murder and aggravated assa ult of O fficer C aldwe ll and reckless endangerment of Officer Newburn and Officer Mullik in. Appe llant does not conte nd that the State did not put forth enough evidenc e to estab lish the elem ents of these crimes. Instead, he argues that the officers’ stories varied so much among each other and between the night of the search and the time of trial, they were not believable. When an appeal challenges the sufficiency of the evidence, the standard of review is whethe r, after viewing the evidenc e in the light m ost favora ble to the S tate, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v. Evans, 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740 (1994); Tenn. R. App. P . 13(e). On appea l, the State is entitled to the strongest legitimate view of the evid ence and a ll reaso nable or legitima te inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978). This C ourt will not reweigh the evidence, re-evaluate the evidence, or substitute its evidentiary inference s for those reache d by the jury . State v. Grace, 493 S.W.2d 474, 476 (Tenn . 1973). Once approved by the trial court, a jury verdict accredits the witnesses presented by the State and resolves all conflicts in fa vor of the S tate. State v. Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842 (Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony, and the reco nciliation of c onflicts in the proof are matte rs entru sted e xclusive ly to the jury as trier of fact. State v. She ffield, 676 S.W .2d 542, 547 (Tenn. 198 4). For these reasons, had the jury been properly instructed, [see discussion infra.] -5- we find that there was sufficient evidence to find Appellant guilty of attempted secon d-degre e murd er, aggra vated as sault, and reckless endan germe nt. Howeve r, Appella nt also claim s that he could not legally be convicted of both attempted s econd-de gree mu rder and ag gravated assault of Officer Cald well because the crimes involved the sam e perso n. In State v. Denton, 938 S.W.2d 373 (Ten n. 1996); our Supreme Court extended double jeopardy protection under the Tennessee Constitution beyond that provided by the federal constitution.1 That is, while multiple convictions for a single criminal action may be permitted by the federal constitution under Blockberger v. United States, 284 U.S. 299 (1932), the result may be different under the Tennessee Constitution. In order to determine whether multiple convictions for a single criminal episode which violates two distinct statutes is permissible under Tennessee law, we must now engage in the following four prong inquiry: “(1) a Blockberger analysis of the statutory offenses; (2) an analysis, g uided b y the princip les of Duch ac [v. State , 505 S.W.2d 237 (Tenn. 1973)], of the evidence used to prove the offenses; (3) a consideration of whether there were multiple victims or discrete acts; and (4) a comparison of the purposes of the respective statu tes.” Denton, 938 S.W.2d at 381. This Court in State v. Hall, Madison County, C.C.A. No. 02C01-9607-CC- 00211, Opin ion filed January 28, 1997, at Jackson; has previously held that because each statutory provision setting forth these offenses requires proof of an additional fact which the other does n ot, attempted second-degree murder and aggravated assault are not the same offense for federal double jeopardy purposes. We also held in Hall that the purposes of the statutes prohibiting 1 The double jeopardy clause of the Tennessee Constitution provides “[t]hat no person shall, for the sam e offens e, be twice put in jeopa rdy of life or lim b.” Ten n. Cons t., Art I, Sec. 10 . -6- attempted murder and aggravated assault are the same: to prevent physical attacks upon persons. Id. As in Hall, we find that the eviden ce used to p rove both the offe nses in this case is the same: the defendant’s firing a loaded gun at a person entering his home. The convictions were for a discrete act against Officer Caldwell. Therefore, as in Hall and under the reasoning in Dento n, we find that Appellant’s convictions for attempted second-degree murder and aggravated assault must merge. Accordingly, we revers e App ellant’s conviction for aggra vated as sault. In addition, Appellant challenges his conviction for two counts of reckless endangerment beca use th ere wa s only a sing le cou rse of c ondu ct. In fac t, this Court held in State v. Ramsey, 903 S.W .2d 709 (Tenn . Crim. A pp. 199 5), that a single course of conduct could only give rise to one conviction for reckless endangerment despite the fact that more than one person may have been endangered. Ther efore, th e trial co urt erre d in failin g to m erge tw o cou nts into one. III. Demo nstratio n of Co mplian ce w ith “Kn ock an d Anno unce ” Rule Appellant also conte nds th at the tria l court e rred in permitting the officers to testify that they always complied with the “kno ck an d ann ounc e” rule a nd in permitting them to demonstrate how they yelled “Police. Search warrant” in the courtroom. The trial court permitted the officers to testify that they always complied with the “knock and announce” rule pursuant to Tennessee Rule of Evidence 406(a) which provides th at “[e]videnc e of the ha bit of a pers on . . . whether corroborated or not and regardless of the prese nce o f eye-w itness es, is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the h abit.” Appellant objects to this testimony on the grounds -7- of relevancy and prejudice. The evidence was clearly relevant considering that one of the main issues in the trial was whether the police officers knocked and announced their pre senc e in the execu tion of th eir warrant. Appellant argues that the testim ony pr ejudic ed him beca use it led the jury to believe that since officers had knocke d and a nnoun ced oth er times , it is more likely than not that they knocked and announced at Appellant’s home. Of course, evidence of habit is admis sible for this ve ry reason . See Tenn. R . Evid. 406(a). Appellant does not state why the probative value of this evidence is outweighed by the danger of unfair prejudice. Because the trial court complied with the dictates of Tennessee Rule of Evidence 406 and Appellant has failed to demonstrate how the evidence was unduly prejudicial, the trial court did not err in permitting the officers to testify about their habit of knocking and announcing before the execution of a search warran t. The decision whether to allow a courtroom demonstration rests within the discretion of the trial judge and will not be disturbed absent a showing of abuse of that discre tion. State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984). How loudly the officers announced their presence was clearly relevant because the issu e of wh ether A ppella nt hea rd the p olice knock and announce their presence was central to the trial. If the police used a tone o f voice u sed in everyday, regular conversation there would be a goo d cha nce th at App ellant d id not hear them at his door. Again, Appellant has failed to show how the demonstration was undu ly prejudicial. Therefore , it was proper to allow the officers to testify as to how loudly they announced their presence. -8- IV. Denial of Appellant’s Motion to Suppress Appellant argues that the trial court erroneously ruled that evidence gathered as a resu lt of the Dece mber 1, 1993 search of his home was admissible. We must a gree with Appella nt for two re asons . First of a ll, we find that the warrant was improperly executed. Secondly, we find that the search warrant was not supported by probab le cause . At the outs et, we recognize that a trial court’s de termina tion at a suppression hearing is presumptively correct on appeal and may be overcome only if the evidence in the record preponderates against the trial court’s findings. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 19 94). Before an officer may m ake a forced entry into an occupied residence, the officer must give “notice of his authority and pu rpose.” Tenn. R . Crim. P. 41(e), State v. Fletcher, 789 S.W.2d 565, 566 (Tenn. Crim. App. 1990). The knock and announce rule is not merely a statutory or court rule, it is part of the requirement under the Fourth Amendment to the United States Constitution that searches be reasonable. Richa rds v. W iscon sin, ___ U.S . ___, 117 S.Ct. 1416, 142 0 (1997); Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The requirement mandates that officers (a) identify themselves as law enforcement officials and (b) explain the purpose of their presen ce, i.e. the ex ecution o f a search warrant. W . LaFave , Search and Seizure, § 4.8(c) at 606-07 (3d ed. 1996). If the officer is not admitted to the residence after giving proper notice, the officer is authorized to “break open any door or window . . . , or any part th ereof, . . . to the extent that it is reasona bly necessa ry to execute the warrant and does not unnece ssarily damag e the property.” T enn. R. Crim . P. 41(e). -9- The purpose of the “knock and announce” rule is threefold: First, it provides protection from violence, assuring the safety and security of both the occupants and the entering officers. Second, it protects ‘the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. . . . Finally, it protects against the ne edless des truction of private prope rty. Lee, 836 S.W.2d at 128 (citing U.S. v Moreno, 701 F.2 d 815, 8 17 (9th Cir. 1983)). Absent exigent circumstances, officers must wait a reasonable period of time before they may break a nd ente r into the pre mises . State v. Lee, 836 S.W.2d 126, 128 (Tenn. Crim. App. 1991) (citing State v. Carufel, 314 A.2d 144, 146 (R.I. 1974)). In State v. Fletcher, supra., this Court indicated that “sounds indicative of flight or destruction of evidence -- running, scuffling, or toilet flushing” could excuse compliance with the knock and announce rule. 789 S.W. 2d at 566. Howeve r, the United States Supreme Court has recently refined the test of exigency which will excuse compliance with the knoc k and a nnoun ce rule. In order to excuse non-compliance with the rule, the police must have a “reaso nable suspicion that kn ockin g and anno uncin g their p resen ce, un der the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for exam ple, allowin g the de struction o f evidence .” Richa rds v. W iscon sin, 117 S.Ct. At 1421. Turning now to the fac ts of this case the Sta te argu es tha t officers fully complied with the knock and announce rule, and that even if they did not they were excused from doing so because they heard someone run inside the house. The evidence put forth at the s uppres sion hea ring and undispu ted by the State revea ls that the officers quietly attempted to pry open Ap pellant’s screen d oor. 2 2 The State argues that officers tried to open the screen in order to aid the occupants of the residence in hearing the officers knock and identify themselves. One wond ers why if the officers were only interested in making their presence known, they felt it necessary to open the screen “quie tly”. -10- When this wa s uns ucce ssful, they ripped it open. Only then did they knock and announce. Clearly, ripping off Appellant’s screen door was a breaking within the meaning of Tennessee Rule of Criminal Procedure 41(e). While the State attemp ts to justify the officers’ actions by claiming that they heard running to the back of the house, they did not hear the running until after they had, without annou ncem ent, broke n ope n App ellant’s door. W hile it is doubtful that sounds of running inside an occup ied dwe lling can, sta nding a lone, form the basis of a “reaso nable suspicion” of attem pted e scap e or de structio n or evid ence , it is clear that officers ma y not throu gh suc h mea sures a s ripping a screen door off its hinge create an exigency they later claim justifies an unannounced entry. See, State v. Lee, 836 S.W. at 129. Since the officers did not knock and announce before tearing open the screen door, they did not comply with the “knock and announce” rule. Under the circumstances nothing excuses failure to comply with the rule. We conclude that the trial court erre d in deny ing App ellant’s m otion to suppress the evidence seized pursu ant to th e sea rch wa rrant, a nd the refore order a new tria l on the conviction for posse ssion of m arijuana w ith intent to sell and possession of drug paraphernalia. Moreover, we find that the motion to suppress should have been granted because the warra nt was d efective. In State v. Jacu min, 778 S.W .2d 430 (198 9), the Tennessee Supreme Court adopted the two-pronged Aguila r-Spin elli test as the standard by which probable cause is to be measured to determine if a search warrant is proper under Article 1, Section 7 of the T ennes see Co nstitution. Id. at 436 (citing Aguilar v. Texas, 84 S.Ct. 1509 (1964) & Spinelli v. United States, 89 S.Ct. 584 (1969 )). Under that test, when a search warrant is based upon informant information, the basis of the informant’s knowledge and his c redibility -11- must be established before a magis trate may pro perly issue a warran t. Jacu min, 778 S.W.2d at 432. The affidavit at issue stated that the police had received information from “a confidential informant who has been proven reliable in the past through police observation and supe rvision . . . .” “Said confiden tial informa nt has w orked w ith investigators in an undercover capacity wherein conta ct has be en ma de with alleged drug traffickers for the purpose of probable ca use drug p urchases.” A conclusory statement that the info rmant is reliable is insu fficient. State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Likewise, the assertion that the informant has w orked with po lice officers in the past does not cure the insufficiency. See State v. Udzinski, No. 01C01-9212-CC-00380, 1993 W L 473308, at *3 (Tenn. Crim. App. Nov. 18, 1993). The State argues that this C ourt has found that similar information has sufficiently supported search warrants in the past. The State cites two cases wherein the credibility prong was satisfied by a state men t in the affidavit that information from an informant had led to either arrests or con victions . Wh ile inform ant relia bility has been estab lished by showing that an info rmant’s past per forman ce has led to convictions or arrests, here we have neither. See id. From the sta teme nts reg arding the info rman t’s past work with the police one cannot even discern if drug purcha ses were ultima tely made. All one can determine is that contact was made with alleged drug traffickers . We find tha t the info rmatio n con tained in the a ffidavit is insufficient to establish the cred ibility of the inform ant. Both the failure to properly comply with the “knock and announce rule” and the insufficiency of the sea rch warrant mandate that the evidence seized be suppre ssed a nd a ne w trial ordere d. -12- V. Failure to Instruct the Jury Appe llant’s fourth issue dea ls with the trial court’s failure to instruct the jury on (1) the presumption found in Tennessee Code Annotated Section 39-11-611(b) (1991), which applies when a person uses deadly force against an intruder in his own home, (2) the “knock and announce” rule, and (3) character evidence. The presumption found in Tennessee Code Annotated Section 39-11-611(b) provides that a person using deadly force against an intruder in h is hom e is presu med to have held a reasonable fear of imminent peril or death or serious bodily injury. The instruction on character evidence provides both that “a person of good character may violate the law , but a person of good character is less likely to violate the law than one of bad character,” and that the defendant’s character “may be considered for the purp ose of en hancin g (the de fendan t’s) credibility as a witness.” A criminal defendant has the right to a correct an d com plete cha rge of the law given to the jury by the trial judge. Stephenson, 878 S.W.2d at 555 (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990) & State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983)). The State concedes that these instructions should have been given but that the trial judge’s fa ilure to give th em wa s harm less. W e disagre e. Although the trial judge gave a general self-defense charge which provided that a pers on is justified in using deadly force if he reasonably believes that he was in imminent danger of death or serious bodily injury, Appellant was entitled to an instruction concerning the presumption found in Tennessee Code Annotated Section 39-11-611 (b). It was for the jury properly instructed, to decide if the entry by the police was lawful for the purposes of self-defense. If it was unlawful and Appellant used dead ly force in his ho me in a reas onab le belief he was in imminent danger of death or serious bodily injury by an intruder, he was entitled to the benefit of the presumption. -13- Appellant was also entitled to an instruction on the “knock and announce” rule. Of cours e, this is n ot so th at the ju ry could decid e if evide nce o btained from the search was admissible. Instead, the testimony concerning whether the police complied with the rule was necessary for the jury to determine if Ap pellant’s theory of self-defense could be supported. Finally, th e jury he ard ev idenc e of Ap pellan t’s good character but was not told how to use that evidence. Because the jury was not given complete a nd correct instructions, Appellant’s convictions for attempted second-degree murder and reckless endangerment must be reversed and retried. Because we orde r a new tria l on these counts, w e preterm it determ ination of the senten cing issu es raised by App ellant. W e conclude that merger of the attempted second-degree murder conviction and the agg ravated a ssault co nviction as well as m erger of th e two counts of reckless endangerment is required. Furthermore , the convictions for possession with intent to sell and possession of drug paraphernalia must be reversed due to the improper execution of the search warrant and the lack of probable cause to issue the search warrant. We order a new trial on these charge s. Beca use co mplete proper instructions were no t given to the jury, we remand for a new trial on the indictme nts for attem pted se cond-d egree m urder an d reckles s enda ngerm ent. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ JOE B. JONES, PRESIDING JUDGE -14- ___________________________________ DAVID H. WELLES, JUDGE -15-