State v. Mckheen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED DECEMB ER SESSION, 1997 February 3, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00209 ) Appellee, ) ) McMINN COUNTY ) V. ) ) HON. R. STEVEN BEBB, JUDGE SAMUEL McKHEEN, ) ) Appe llant. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT: FOR THE APPELLEE:

HUBERT D. PATTY JOHN KNOX WALKUP Patty Office Building Attorney General & Reporter 131 Eas t Broadway P.O. Box 5449 TIMOTHY F. BEHAN Maryville, TN 37802 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

JERRY N. ESTES District Attorn ey Ge neral

AMY REEDY Assistant District Attorney General Washington Avenue P.O. Box 647 Athens, TN 37303

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION The Defendant, Samuel McKheen, appeals as of right following a jury tria l in

the Criminal Court for McMinn County. Defendant was convicted of aggravated assa ult and was sentenced to four (4) years in the Department of Correction. On appeal, the Defendant challenges the following:

(1) Whether the evidence w as sufficien t beyond a reaso nable d oubt to convict the Defen dant of ag gravated assau lt as charg ed in the in dictme nt;

(2) Whether the trial court erred in limiting the Defendant’s cross-examination of a prosecuting witness;

(3) Wh ether th e trial co urt abu sed its discre tion in a llowing the victim ’s son to testify;

(4) Wh ether the State ha d a duty to call an eye witness to the crime to testify and did such failure to call this witness constitute a Brady violation;

(5) Wh ether a juror’s failure to provide information during voir dire regarding his misd emea nor con victions co nstitutes p rejudice to the Defe ndant;

(6) Whether the trial court erred in giving an oral supplemental instruction to the written jury charge.

We affirm the ju dgme nt of the trial co urt.

I. S UFFICIENCY OF THE EVIDENCE

The Defendant argues that the evidence was insufficient in that the great weight of the evidence is against the findings of the jury and there is no evide nce to support the alle gation s in the indictm ent. Sp ecifica lly, the D efend ant sta tes tha t “all the proof in this case shows is that the said Lisa McKheen [the victim] w as no t afraid of the Defendant at any time and that he was not pointing the gun at anybody nor that no [sic] gun was ever fired or that anyon e expresse d any fear.” The indictment in the case sub judice states as follows:

Sammy McKheen on or about the 12th day of March, 1996, in McMinn County, Ten ness ee, an d befo re the fin ding o f this ind ictme nt, did

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unlawfully, intentiona lly and kno wingly by th e display o f a deadly weapon, to-wit: a gun, cause Lisa McKheen to reasonably fear imminent bodily injury by pointin g the g un at L isa Mc Khee n, in violation of T.C.A. 39-13-102, all of which is against the peace and dignity of the State of Tennessee.

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing 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 reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 319 (19 79). On appea l, the State is entitled to the strongest legitimate view of the evidence and all inference s therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978). Because a verdic t of guilt remov es the pr esum ption of inn ocenc e and re places it w ith a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions conce rning the credibility of the witne sses, the weight an d value to be given the evidence, as we ll as all factual issues raised b y the evidence, a re resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict accred its the State’s witnesses and resolves all conflicts in favor of the State. Grace, 493 S.W.2d at 476.

Lisa McKheen, Defendant’s wife at the time of trial, testified that she w ent to her father-in-law’s home on Mar ch 12, 19 96 to deliver some prescription medicine. Her father-in-law, J.B. McKheen, to whom she refers to as “Dad,” called her earlier

-3-that day and asked her to pick up his prescription from Revco. It was between 3:00 and 5:00 p.m. when she arrived at his traile r. Her s on, T rent M ichae l, and a family friend, Tommy Conn, accompanied her. She and Trent Michael walked into the home and found J.B. McKheen asleep in his hospital bed. The Defendant was asleep in a chair located across from the bed. When Lisa walked over to the hospital bed and said, “Dad, here’s your medicine,” the Defendant suddenly jumped up and star ted yelling o bscen ities. The Defendant announced that he was leaving and yelled some more obscenities, but Lisa said that she was ”just dropping o ff Dad ’s medicine a nd [she wa s] leaving.” Trent Michael was hugging his grandfather when Lisa was trying to leave, and the Defendant grabbed h er and started to h it her.

Lisa told the Defendant that she was no longer afraid of him and th at if he h it her she w ould take out a warrant for his arrest. Defendant continued to yell, and Lisa stated that “[T ]his is not the place. D ad is sick.” J.B. McKheen was yelling that if the Defendant was not going to sit down, then to “please leave.” Lisa exited through the front do or with the Defendant following and yelling at her. Lisa was on her way toward the car when the Defenda nt ran around and jump ed onto he r car. A picture was entered into evidence which showed his muddy footprints on the car and some damage to the paint. At that time, she was standing at the driver’s side front fender and Trent M ichael was standing just behind her. Tommy Conn was sitting in the fro nt passe nger se at.

Lisa told the Defendant that “jumping on my car is so childish,” and the Defendant became very angry and ran back into the house. Lisa believed the Defendant was going inside to get a gun because she had seen the gun earlier when

-4-her father-in-law had taken it out from underneath his bed to get the Defen dant to calm down. When the Defendant came back from the house carrying a gun, Lisa was trying to get Trent Michael in the car and lay down in the back seat because she believed that the D efendant wa s goin g to sh oot into the ca r. Lisa s pecific ally testified that she was in fear of Defendant when he brandished the weapon, pointing it at her and her son.

Trent Michael Ward, Lisa McKheen’s son, stated that he was nine (9) years old at the time of trial. On March 12, 1996, h e went w ith his mo ther and Tom my to his “Pop’s hous e.” Wh en they walked in the house, J.B. McKheen and the Defenda nt were both asleep, with McKheen in the hospital bed and the Defendant in the chair. Tre nt Micha el’s moth er was th ere to give his “Pop” some medicine she had picked up at Revco. Both J.B. McKheen and the Defendant woke up, and the Defendant stated that he was leaving . Lisa M cKhe en sta ted “It’s o kay, I’m leaving,” and then the Defendant got in her face and grabbed her by the throat. Trent Michael and h is mother left, but then the Defendant ran out and jumped on the front end of their car. W hen they just stood there, the Defendant ran back inside. His mother said “Get in the car, he’s g oing to ge t the gun.” A fter they got in the car an d were trying to pull out, the Defendant came out on the steps and was pointing the gun at the car. Trent Mich ael had see n this same gun earlier, on the floo r by J.B. McKh een’s be d.

For the defense, J.D. McKhe en testified that he wa s the Defen dant’s father. He stated that on March 12, 1996, the Defendant was at home with him. Earlier that morning he had ca lled Lisa to go by the d rug store to pick up a prescription, and Lisa stated that she would bring it to him. McKheen stated that he had told both Lisa and

-5-the Defendant not to be present in his house together because of their prior arguments. When Lisa arrived, the Defendant was sitting in a recliner sleeping and he was in his daybed . McKh een sa id, “Lisa, what are yo u doin g here ? Sam my is here.” The Defendant woke up and the two started arguing. McKheen told them both to leave, and the Defendant stated that he would leave. Eventually, Lisa went outside and then the Defendant followed. While McKheen went to the door, he then came back to his daybed and laid down. McKheen stated that he had a shotgun, and that no o ther gun wa s present in his trailer.

The Defendant testified on his own behalf. He stated that he and Lisa were in the process of getting a divorce when this incident occurred. On March 12, 1996, he had come home from work early because it was raining and he was sick. When he arrived at his father’s trailer, his father was lying in his hospital bed. The Defendant went to sleep in a nearb y recliner, bu t awoke to the sound of Lisa cursing at him. The two argued, and the Defendant knew they were not supp osed to be in his father’s trailer at the same time so he offered to leave. Lisa then stated that “There ain’t no us e in it. I will leave . . . I don ’t want to be around this trash anyway .” Defendant admitte d that his father had a shotgun lying near his bed, and that he could hold it in one hand and shoo t it. Defendant stated that he did not ha ve a gun in his han d.

“A perso n com mits a ssau lt who intentionally or knowingly causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2). The offense of assault rises to aggravated assault if the person “uses or displays a dead ly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(B). “To establish these charges, the state was required to prove beyond a reasonable doubt that [the

-6-defend ant] intentio nally or k nowin gly cau sed th e victim [s] to fea r imminent b odily injury by his use or display o f a deadly wea pon.” State v. Wilson, 924 S.W.2d 648, 649 (Tenn. 199 6). One a cts intention ally “with resp ect to the nature of the conduct or to a resu lt of the c ondu ct whe n it is the pers on’s con scious o bjective or d esire to engage in the con duct or ca use the result.” Tenn . Code Ann. § 3 9-11-30 2(a). A person acts kno wingly wh en, with res pect to a re sult of the p erson’s c onduc t, “the person is aware that the co nduct is re asona bly certain to cause the re sult.” Id. at (b).

In the light most favorable to the State, there was sufficient evidence whereby a rational trier of fact could have determined beyond a reasonable doubt that the Defendant comm itted the offe nse of ag gravated assau lt. The proof established that the Defenda nt walked de liberately inside his father’s trailer to retrieve a gun, and then walked outside and intentionally pointed the weapon at the car the victim was driving. Aware that the victim, their son and a friend of the family were inside the car, the Defendant knowingly pointed a deadly weapon at the victim while she was in her car. Th e jury w as en titled to in fer that th e Def enda nt’s action of pointing the gun at the victim w as for the p urpose of causing fear of imminent bodily injury, and there was proof that the victim reasonably feared imminent bodily injury. This issue has no merit.

II. C ROSS-EXAMINATION OF WITNESSES

The Defen dant arg ues tha t his trial counsel was denied adequate cross-examination of the prosecuting witness. In his brief, the Defendant fails to spec ify either the witn ess o r the su bject w hich is th e bas is of his a rgum ent. T his issu e is waived because the Defendant failed to make appropriate references to the record.

-7-Tenn. Ct. Crim. App. R. 10(b) ; State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 8); see also Tenn. R. App. P. 27(a)(7) and (g).

III. F AILURE TO LIST WITNESS ON INDICTMENT

Defendant has failed to address in his brief Issue 3 regarding whether it was error to permit the State to call as a witness the victim’s child who had not been listed as a witness on the indictment in this case . The fa ilure to b rief this argument constitutes waiver of this issue. Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P . 27.

IV. E XCULPATORY EVIDENCE

Defendant contends that the State’s failure to call a particular witness to the assault was a violation of the Defendant’s constitutional right of due process. Defendant argues that the evidence T omm y Conn wo uld have provide d to the court was favorable to Defendant, and, consequently, would be exculpatory evidenc e to which he was en titled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).

The law does not require that the State call any particular witness in a criminal prosecution, or that it use a ll of the witnes ses it mig ht have a vailable. Roberts v. State, 489 S.W.2d 263, 265-66 (Tenn. Crim. App. 1972). If the State introduces proof that there was a w itness to a crime and refuses to disclose that witness’ identity, and that witness might be in a position to assist the defense, then that

-8-defendant might be effectively deprived of his constitutional right to due process. Id. at 266. As this witness was available and known to the Defendant, then the standard for the determin ation of whethe r Defenda nt’s due proce ss rights were violated does n ot apply. State v. Hartman, 703 S.W .2d 106 , 114 (T enn. 19 85), cert. denied, 478 U.S. 10 10, 106 S.C t. 3308, 92 L.Ed .2d 721 (198 6) (citations omitted).

In the case sub judice, the witness in question, Tommy Conn, was known to the Defen dant. W hile not listed on the ind ictmen t, the witness was equa lly availab le to either party. The Defendant does not argue that this witness’ identity was not made know n to him , only tha t the Sta te had a duty to call Conn as a witness or to divulge whatever evidence he would provide to the Defendant. As stated above, the State is not under such an obligation, and the Defendant could have subpoenaed Conn to testify as a w itness. Te nn. R. C rim. P. 17 (d). This iss ue is witho ut merit.

V. V OIR DIRE EXAMINATION OF JURORS

The Defendant argues that one of the jurors on the panel failed to disclose answers to questions by the Defendant’s trial counsel during voir dire. The juror failed to disclose that he ple d guilty to so me m isdem eanors several m onths p rior to the Defe ndan t’s trial an d was on pro bation . The D efend ant co ntend s that h is constitutional due proce ss rights were violated because this was exculpa tory evidence to which he w as entitled unde r Brady. He cites State v. Mars hall, 845 S.W. 2d 228 (Tenn. Crim. App. 1992), for the proposition that even if there is no

-9-showing of bad faith on the part of the prosecution, the prosecution had a duty to disclose the statem ents that w ere excu lpatory or fa vorable to the accu sed.

The Defendant’s reliance upon Mars hall and the case of Montesi v. Montesi, 529 S.W .2d 720 (Tenn . Ct. App . 1973), is m isguided . In Montesi, a juror failed to disclose to the court that he previously sat on a jury which convicted the appellant of second degree murder of his former wife. Th e court fou nd that a fa ilure to disclose that information misled the app ellant’s attorn ey to his pre judice. Montesi, 529 S.W.2d at 724. Certainly, the information which the juror in the case sub judice failed to disclose was not of a prejudicial nature in that this inform ation w as no t in any way related to the Defen dant. The Mars hall case involve d the fa ilure of c ertain witnesses in the trial to disc lose state ments which w ere excu lpatory or fa vorable to the accuse d. Mars hall, 845 S.W.2d at 231-32. This case is distinguishable from Mars hall in that this was a juror, and not a witness, who failed to disclose information. Also, th e inform ation w hich th e juror fa iled to dis close was not exculpatory.

Furthermore, if this juror failed to disclose that he earlier pled guilty to some misdem eanors and was on probation, su ch failure does n ot give rise to a n inhe rently prejudicial situation for the Defendant. It is likely that if this particular juror had been prosec uted by the State for a misdemeanor, any prejudice he might have caused would likely have been towards the State. This juror was n ot ask ed du ring vo ir dire if he had b een ind icted or co nvicted in a ny court. The following excerpt of the vo ir dire examination by the trial court was as follows:

It doesn’t matter to me if you are close friends with the DA or Amy [State ’s prosec utor] or anybody else , but all I want to know is is there anything about the District Attorney’s office, or any of the people that

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you know in that office, that would cause you to be unfair or feel like you had to be on their sid e before we start this case? On the other hand, do you have any friends that have been prose cuted by the D A’s office, or family or friends that have been prosecuted by the DA’s office, that you are laying in wait for them here today?

The D efenda nt’s trial coun sel also q uestione d the jury on a similar su bject:

I need to know and have your feelings on it, and that has to do with some domestic situations. Are any of you now involved in a divorce proceeding? None of you. H ave an y of you recen tly been involve d in a divorce proceedings? We ll, I take it all of your relationships with your spouses have been good and you’ve had no prob lems in th e past. And I believe I’ve check ed on yo ur prelim inary inform ation on th e jury list, and none of you have any lawsuits pending anywhere in the county at this time? Or any lawsuits pending anywhere?

In the absence of questions calculated to produce the specific answers, the Defendant has w aived th e right to objec t to the fa ilure of the juror to volunteer the information. State v. Taylor, 669 S.W .2d 69 4, 700 (Ten n. Crim . App. 1 983). T his issue is w ithout me rit.

V I. O RAL JURY INSTRUCTIONS

Defendant argues that the trial court communicated orally with the jury in response to their questions du ring deliberations, an d that this oral communication was in error. Defendant relies upon Rule 30(c) of the Tennessee Rules of Criminal Procedu re in that the trial court failed to submit every word of his charge to the jury in written form, and argues this rule is not subject to waiver by either the State or the Defen dant.

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At the conclusion of the proof, the trial court read the written jury instructions to the jury and then s ent these instruction s with the jury for their deliberations . Later, the jury returned to the courtroom with a q uestion for the trial court. Th e jury foreman asked for the trial court to “explain the difference between aggravated assault and just assault.” The trial court’s answer was as follows:

Let me have your charge right there and let me, number one, aggravated assault is a felony and it requ ires inte ntiona lly, know ingly causing somebody to reasonably fear bodily injury, and the use or displaying of a dead ly weapo n. The simp le assa ult me rely says that the defendant intentionally a nd kn owing ly caus ed an other to reaso nably fear immin ent bod ily injury. It does not require the use of a weapon or displaying of a wea pon. Th at’s the ba sic differen ce, and that is a misdemeanor. Yes, ma’am.

The juror then asked the trial court to explain what the phrase “display of a weapon” mean t, but the trial court refused stating that “[Y]ou have to decide what that means. Tha t’s a jury question. Use or display. Just common English, whatever you think that it mea ns.”

The trial court has the authority to respond to jury questions with a supplemental instruction . State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (citations omitted). In this instance, the trial cou rt mer ely reread a portion of the written instru ctions with which the jury had already been charged. T he trial court neither commented on specific evidence nor on testimony introduced at trial. Wh ile the supplemental instruction should have included an admonishment to place no undue emphasis upon it, there is no reversible error in the trial court’s oral instruction. Id. at 451 (citing State v. Chance, 778 S.W.2d 457, 461-62 (Tenn. Crim. App. 1989); see Burton v. State, 217 Tenn. 62, 70-71, 394 S.W.2d 873, 876-77 (Tenn . 1965)). T his issue has no merit.

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After a thorough review of the re cord a nd the briefs in this case, we affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge

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