State v. John Knapp ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
FILED
December 10, 1997
STATE OF TENNESSEE, * C.C.A. # 02C01-9608-CR-00282
Cecil Crowson, Jr.
Appellee, * SHELBY COUNTY Appellate C ourt Clerk
VS. * Hon. W. Fred Axley, Judge
JOHN KNAPP, * (Attempted Second Degree Murder)
Appellant. *
For Appellant: For Appellee:
Charles R. Curbo, Attorney John Knox Walkup
109 Madison Avenue Attorney General & Reporter
Memphis, TN 38103
Kenneth W. Rucker
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Alanda Horne
Assistant District Attorney General
Criminal Justice Center, Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, John Knapp, was convicted of attempted second
murder. The trial court imposed a Range I, ten-year sentence. In this appeal of
right, the defendant claims an entitlement to a new trial on several grounds,
including that the trial judge precluded an effective cross-examination of the victim
and improperly commented on the evidence. Although counsel for the defendant
failed to enumerate other grounds in his appellate brief, there are references to
possible other issues; included is an alleged violation of the rule of sequestration of
witnesses.
We affirm the judgment of the trial court.
In 1994, the defendant vacated a residence at 1609 Stribling in
Memphis and the victim, Kevin Newburn, moved into the same residence. The
defendant and the victim had been friends and the defendant left the refrigerator for
the victim's use. Later, however, a dispute arose and the defendant gave notice to
the victim that he intended to regain possession of the item. Over a period of time,
the relationship between the defendant and the victim deteriorated to the point that
the defendant had to arrange for Ronnie Jackson, who lived near the victim, to help
him re-obtain the refrigerator.
On February 6, 1995, Jackson and his stepson, Phillip, moved the
refrigerator from the victim's residence. Once the refrigerator was outside, the
defendant joined in the effort to move it into the Jackson residence. As the
refrigerator was maneuvered up a step, however, the door opened and several
items of spoiled food fell out. The defendant then threw the spoiled food over a
fence into the victim's front yard. The victim heard the noise, walked outside his
2
residence, and observed dents in his vehicle which was parked near where the food
was thrown. The victim then picked up the garbage and threw it back. The victim
testified that when he returned to his residence, he heard a "loud boom" and so he
"came back outside and ... shot [his own weapon] up in the air." Otherwise, the
victim denied having made any threats toward the defendant at that point. Shortly
after this episode, two police cars arrived next door to talk to the defendant. They
left, however, without making any arrests.
On the next day, the victim, who worked for a security company in
addition to his duties with the United Parcel Service, was assigned to the apartment
complex where the defendant lived. The victim, dressed in a security guard uniform,
was unarmed as he patrolled his vehicle through the apartment complex. Shortly
before noon, the victim saw the defendant's sister, Melissa Montgomery, as she was
leaving the apartments. The victim testified that he asked Ms. Montgomery "what
was up" with the defendant and his behavior the day before. According to the
victim, Ms. Montgomery answered that the defendant was "crazy" and that the victim
just needed "to leave him alone."
The victim testified that a short while later he observed the defendant
drive through the apartment complex. He recalled that he refused a demand by the
defendant that he roll down his car window. What happened thereafter is best
reflected in the victim's testimony:
So I just ... looked over there and when I looked back, ...
I saw the infrared beam and I saw him pointing that gun
at me. And I was just sitting.... [W]hen I saw that beam
... it just froze me. I didn't know [if] this guy [was] going
to pull this trigger or ... not.... [I]t hit my head and came
down. After [it] hit the bottom of my eye, I ... just kind of
... closed my eyes and heard a boom.... I went over into
the seat and blood ... was just running profusely out of
my mouth and I couldn't stop it, so I just drove off. I just
hit the gas. I didn't know what to do because he took off
3
real fast.... So I started blowing the horn because I felt
myself getting weak and I just knew I was going to pass
out and I wouldn't make it to the office or make it
anywhere. As I looked to my left, he had come back
around beside me and it was like he was either waving
that gun or waving his hand at me.... [I] drove to the
leasing office, got out, and I walked to the door and told
her, ... "call 911, I've been shot." Blood [was] just
running like a water faucet.
The defendant testified that on the day before the shooting, he had
complained to the police about the victim having thrown the garbage back into the
Jacksons' yard. He contended that the victim caused damages to his vehicle of
almost $1,000.00. On the day of the shooting, the defendant attempted to take out
a vandalism warrant against the victim. When he told officers that the damage to
his vehicle was over $500.00, however, he learned that more information would be
required because the charge would be a felony rather than a misdemeanor. A short
while later, the defendant learned that his sister, whom he described as "hysterical,"
had talked to the victim. He claimed that she suggested that he needed to "go and
check" on the victim. The defendant then drove to his apartment complex "to check
and make sure somebody was not breaking into my apartment to steal my stereo
equipment."
The defendant testified that when he arrived, he saw the victim and
asked, "[W]hat the hell [are you] doing in my apartment complex?" The victim
answered that he was a security guard. According to the defendant, the victim then
instructed him not to come into the neighborhood, else "he would make it so I was
unable to walk." The defendant claimed that the victim then said, "Boy, I ought to go
ahead and take care of you now" and then picked up a gun. The defendant, still
inside his vehicle, testified that he leaned over, saw a gun on his floorboard, put a
bullet in the chamber, hurriedly fired his weapon, and then drove away. The
4
defendant explained that he thought the victim "was going to shoot me." Afterward,
the defendant drove to his place of employment, informed his boss what had taken
place, and then drove to the "East Precinct" of the police department.
No weapon other than that of the defendant was discovered by police.
The victim's car window was shattered as he was struck in the chin by a bullet. A
spent cartridge was later located on the window wiper of the defendant's car. Expert
testimony on the firearm indicated that the gun was being held outside the car
window at the time the shot was fired.
The defendant makes no challenge to the sufficiency of the evidence.
Second degree murder, a Class A felony, is "a knowing killing of another." Tenn.
Code Ann. § 39-13-210. Because the victim survived the shooting, the crime was
one of attempt. Tenn. Code Ann. § 39-12-101. The felony grade, Class B, is one
degree lower. Tenn. Code Ann. § 39-12-107. Certainly, it is our view that the
recorded evidence is sufficient to support the jury's verdict.
In this appeal, the defendant contends that the trial court made a
number of errors; however, he has failed to categorize his arguments. He
complains that the trial judge ridiculed and threatened his defense counsel, thwarted
the cross-examination of the victim, and generally precluded the presentation of a
proper defense.
The defendant cites as the most egregious example of this the
instructions made by the trial court to the jury after defense counsel attempted to
cross-examine the victim about the nature of earlier statements made for worker's
compensation and victims to crimes compensation purposes. When the issue was
5
raised, the trial court charged the jury as follows:
There is an attempt to impeach a witness on a prior
inconsistent statement. When I charge you, ... I'll explain
to you what that means. But in order for the witness to
be impeached on a prior inconsistent statement, the
lawyer trying to do that must have in his hand the
statement.
The court ... just learned that they don't have it, but will
have it sometime today, within an hour is what I was told.
So you cannot consider this line of questioning until the
examining lawyer ... has that statement in their
possession.
After further discussions with counsel in connection to the worker's compensation
claim of the victim, the trial court instructed the jury a second time:
[Y]esterday, there was an objection by the state that
[defense counsel] was asking questions of [the victim]
about a CIGNA insurance company worker's
compensation claim ... and about statements that [the
victim] had made to the ... company. You may recall that
[the victim] stated that the ... hospital filed a claim and
not him. I did not rule on the objection because the court
was advised by defense counsel that this would be linked
up by information that he had. I am advised today that
he does not have that information and it is not available
to him. The objection is sustained. In other words, I am
ruling for the state. You may disregard the questions
asked by defense counsel with regard to statements [the
victim] made to CIGNA Insurance Company.
The defendant claims that this instruction was made in "an extremely sarcastic tone
of voice" with an emphasis so as to indicate that his defense counsel was "a liar."
The defendant contends that it was perfectly clear to the trial judge that defense
counsel never had a copy of the statement, only information as to its content.
The defendant also refers to a violation of the rule requiring
sequestration of witnesses. He contends that the victim, who had testified for the
state, should not have been permitted to stay in the courtroom after his testimony.
The defendant asserts that the trial judge violated the state constitution by
commenting favorably upon the credibility of the victim and indicating a belief in the
6
guilt of the defendant. (See Tenn. Const., art. VI, § 9, providing that "judges shall
not charge juries with respect to matters of fact, but may state and declare the law.")
The defendant also argues that the trial judge's reference to Kevin Newburn as the
"victim" was erroneous. He also complains that a transcript of the preliminary
hearing was introduced at trial without redaction, including the opinion of the general
sessions judge that there was "probable cause." He also submits that the trial court
"smirked at defense counsel, would roll his eyes when [counsel] asked questions
that appeared to be making headway, and generally used every type of body
language possible to demean defense counsel." The defendant insists that the trial
judge erroneously allowed the state's witnesses to handle the weapon used in the
shooting but precluded the defense from doing so.
I
The victim filed a claim for criminal injuries compensation and the
hospital where he was treated filed a claim for worker's compensation.1 The victim
admitted that he made a statement in support of his worker's compensation claim
but denied having made any statement regarding his claim as a victim of a criminal
act.2 He explained that his attorney had prepared the statement regarding the claim
1
In an out-o f-court s tatem ent discu ssion, the trial judge told d efense couns el that he ha d to
show knowledge of the contents of the statement made by the victim, which was apparently never
transcribed. Defense counsel could not pinpoint the source of his information. A witness from CIGNA
Insuran ce Co mpa ny, Attorney B ruce W illiams of M emp his, had b een su bpoen aed by bo th the state
and the defense. The state asked to excuse the insurance com pany representative but the court
refuse d to do so on the ba sis that de fense c ounse l had a right to call the repr esenta tive as a witne ss.
W hile th e jury w as ou t, the w itnes s sa id the re wa s no w ritten f orm of the state me nt, on ly a tape in
Richmond, Virginia. The witness claimed that he had not been subpoenaed by defense counsel and
chos e to ap pear o nly after c onsu ltation w ith the pr osec ution. T he ex tent of M r. W illiams 's
representation was in providing advice to the insurance company as to how to respond to a faxed
subpo ena by the defens e ma de the da y before trial.
2
Def ens e cou nse l rece ived a copy o f a fax from the C rim inal In juries Com pen satio n Cla ims
Dep artm ent o f the S tate th at ha d bee n filed by the victim . In a he aring out o f the p rese nce of the jury,
defens e coun sel read a portion of th e statem ent:
On February 6, 1995, Mr. Newburn and his neighbor had an
argument over a refrigerator which resulted in Mr. Newburn calling
the police who removed the offender from the premises. On
February 7, 1995, the offender went back to Mr. Newburn's job and
shot him in the face .
7
for victim compensation. The trial court refused to allow use of the information in
either claim as grounds to impeach the victim during cross-examination.
Generally speaking, the right to an effective cross-examination
involves the fundamental right to a fair trial. Yet the propriety, scope, and manner of
cross-examination for the purposes of impeachment are within the discretion of the
trial court. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980); Tenn. R.
Evid. 611(a).
Here, the victim was questioned about the statement he had made in
support of the worker's compensation claim. He was, however, unable to remember
much of the content other than it was "pretty much exactly the same thing I have
already said...." Because defense counsel did not have a copy of the statement, the
trial court would not allow defense counsel to "refresh the victim's memory" by
suggesting the content.
The state concedes that the trial court's assertion that "in order for the
witness to be impeached on a prior inconsistent statement, the lawyer trying to do
that must have in his hand the statement," is not a correct statement of the law.
Tenn. R. Evid. 613. The state argues, however, that because defense counsel's
only knowledge of the statement was through discussions with clerical employees of
the insurance agency, the trial court properly precluded any reference to the
statement.
The vic tim den ied ma king the statem ent and th e trial court ru led that the d efenda nt was "s tuck w ith
the ans wer" and could no t introduce the faxe d statem ent.
8
As to the criminal injuries claim, the victim recognized only the first and
last pages of the document, denied having ever read an attached police report, and
contended that he did not make the statement defense counsel sought to use for
impeachment. The trial court ruled that it would have been admissible only if
counsel could qualify the extrinsic evidence. The primary aim of the cross-
examination was to attack the credibility of the victim by showing that the victim had
made a false claim of ownership of the refrigerator. A second objective was to call
into question whether the victim had contacted police about the dispute.
The victim could not recall the details of the his injury claim. When
defense counsel tried to refresh his memory, despite having only a general idea
based on conversations with another as to the content of the document, the purpose
of the cross-examination was frustrated regardless of the intervention by the trial
court. While the subject matter was clearly collateral to the central issue, it had
some relevance to the credibility of the victim. In context of the entire record,
however, it is our view that the error was harmless; while defense counsel may have
had some basis to consider his colloquy with the court as a personal affront, it is our
opinion that the ruling had no effect on the results of the trial. Tenn. R. App. P.
36(b); Wilson v. State, 109 Tenn. 167, 70 S.W.2d 57 (1902).
II
Rule 615, Tenn. R. Evid., provides that witnesses, upon request of
either counsel, must be excluded from the courtroom except during their testimony
and prevented from disclosing the content of their proof. Here, the victim was called
as a witness for the state. Because defense counsel indicated that he might recall
the victim during defense proof, the trial court declined to honor counsel's request
for continued sequestration. The state concedes that the trial court committed error
9
by failing to recognize that the rule of sequestration includes rebuttal witnesses. Yet
the state argues that any error in the failure to exclude the victim as a witness was
harmless. Tenn. R. App. P. 36(b).
A history of the rule of sequestration of witnesses appears in State v.
Anthony, 836 S.W .2d 600 (Tenn. Crim. App. 1992). Traditionally, trial judges have
been afforded wide discretion in determining whether to impose the sanctions of
excluding the evidence of the witness suspected of violating "the rule" or declaring a
mistrial. State v. Moffett, 729 S.W.2d 679, 681 (Tenn. Crim. App. 1986);
Tennessee Law of Evidence, Neil P. Cohen, et al., § 615.4 (3d ed. 1995).
"The rule" was included in the Tennessee Rules of Evidence:
At the request of a party the court shall order
witnesses, including rebuttal witnesses, excluded at trial
or other adjudicatory hearing. Sequestration shall be
effective before voir dire or opening statements if
requested. The court shall order all persons not to
disclose by any means to excluded witnesses any live
trial testimony or exhibits created in the courtroom by a
witness. This rule does not authorize exclusion of (1) a
party who is a natural person, or (2) an officer or
employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be
essential to the presentation of the party's cause.
Tenn. R. Evid. 615. Prior to January 1, 1990, the effective date of the Rules of
Evidence, "the rule" did not apply to rebuttal witnesses. Rule 615, however,
provides that upon request, "the court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing...." The new rule does vest
trial courts with some discretion in that it does not apply to "a person whose
presence is shown by a party to be essential...." Tenn. R. Evid. 615. The Advisory
Commission Comment to this rule provides as follows:
If a witness inadvertently and unintentionally hears some
trial testimony, the sense of the rule would permit the
10
judge to allow the witness to testify if fair under the
circumstances.
In this case, the victim, after testifying for the state and retained by the defense as a
possible witness, was never recalled to the stand. Neither was he recalled to testify
again for the state. Under these circumstances, it cannot be said that the state
gained any advantage by the violation. Thus, any error was clearly harmless. State
v. George Corbit Wallace, Jr., No. 01C01-9106-CC-00189 (Tenn. Crim. App., at
Nashville, Feb. 20, 1992).
III
The defendant asserts that the trial judge made an improper comment
on the evidence by referring to Newburn as a "victim," by permitting the general
sessions transcript into evidence, by prohibiting the defendant from handling the
weapon during his testimony, and by making sarcastic remarks and exhibiting
unfavorable body language.
As to the reference to Newburn as victim, the trial court provided a
curative instruction as suggested by the defense. Because the trial court instructed
the jury to disregard his use of the word "victim" because it was in no way intended
to express an opinion that Newburn was, in fact, a victim, the error was cured. It is
presumed that a jury will follow the instructions of the court in such a situation. State
v. Johnson, 762 S.W.2d 110, 116 (Tenn. 1988).
On at least two separate occasions during the course of the trial,
defense counsel agreed to allow the entire general sessions court transcript to be
read to the jury. Thus, the defense failed to take steps to prevent any alleged error
by the admission of the transcript. Tenn. R. App. P. 36(a). Moreover, the trial court
correctly instructed the jury on the presumption of innocence and properly charged
11
that the burden of proof was on the state beyond a reasonable doubt. It is unlikely,
under these circumstances, that any probable cause determination at the general
sessions court level (a process repeated by the grand jury indictment) would have
prejudiced the jury.
It is difficult to assess allegations regarding body language and
sarcasm. The written record rarely provides an accurate reflection of any such
behavior. That is the case here as well. A reference to the trial judge's laughter
after one exchange was, in our view, clearly inconsequential in the entire context of
the trial. Tenn. R. App. P. 36(b). During the course of the trial, the trial court
instructed the jury to determine the facts from the testimony of the witnesses. The
law presumes that the jury adhered to those instructions.
Finally, the only witness who was permitted to handle the weapon had
been qualified as an expert on "how nine millimeter weapons eject spent shells."
Witnesses other than the court officer, whether called by the state or defense, were
not allowed to do so. In answer to the question by defense counsel for permission
to "approach the witness and pass him the weapon," the trial court answered, "The
deputy can show it to him, that's his job." When defense counsel complained that
the state's attorney had been allowed to handle the weapon, the trial court
responded, "You're welcome to ... but I cannot let you ... hand that weapon to this
witness...."3 The rule of the trial court precluding the actual handling of weapons by
witnesses other than experts is reasonable. Because the rule applied to both the
state and the defense, the incident did not, in our view, affect the results of the trial.
3
This exchange appears to have taken place in a bench conference although the record is not
clear on th at point.
12
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
John H. Peay, Judge
_______________________________
Thomas T. Woodall, Judge
13