State of Tennessee v. Deangelo Thompson ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 7, 2012
STATE OF TENNESSEE v. DEANGELO THOMPSON
Direct Appeal from the Criminal Court for Shelby County
No. 11-00903 John Fowlkes, Judge
No. W2011-02597-CCA-R3-CD - Filed March 28, 2013
Defendant, Deangelo Thompson, appeals from his conviction in the Shelby County Criminal
Court for reckless aggravated assault as a lesser-included offense of aggravated assault.
Defendant was sentenced by the trial court as a Range II multiple offender to five years
incarceration. In this direct appeal, Defendant asserts that the evidence at trial was
insufficient to support his conviction; that the trial court erred by sentencing him to five years
in confinement for his conviction; and that certain comments and questions by the trial court
constitute plain error. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.
Ruchee J. Patel, Memphis, Tennessee, for the appellant, Deangelo Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Facts
Deputy Eric Newton, of the Shelby County Sheriff’s Office, was on duty as a
courtroom deputy on November 10, 2010. He was assigned to the “podium officer position,”
and Deputy Arthur Woody was assigned to escort inmates in and out of the courtroom.
Deputy Newton testified that Defendant was in the courtroom on that day to request that the
trial court recall a warrant for his arrest. When the trial judge denied Defendant’s request
and ordered that he be taken into custody, Defendant “became a little irate, loud and he began
screaming obscenities in the courtroom.” Deputy Newton testified that Defendant was
“[c]ursing loudly” and “yelling.” Deputy Newton asked Deputy Mark Thompson to assist
Deputy Woody in escorting Defendant out of the courtroom. Deputy Newton testified that,
“maybe a couple of minutes later,” he received a call from Deputy Thompson that Deputy
Woody had been injured. When Deputy Newton arrived at the jail tunnel, he saw Deputy
Woody “lying on the floor in tears.” Deputy Newton testified that Deputy Woody’s kneecap
appeared to be out of place, and he was in “severe pain.” Defendant had already been
escorted to the holding area.
Deputy Arthur Woody testified that when the trial judge denied Defendant’s request
to have the arrest warrant recalled and ordered him into custody, Defendant became “real
agitated.” While court was in recess, Deputy Woody led Defendant out of the courtroom and
into the tunnel area between the courthouse and the jail. Deputy Woody testified that
Defendant “had calmed down,” and he was not handcuffed. As they exited the courtroom,
Defendant ran. Deputy Woody ran after Defendant and “caught him downstairs because he
turned and went the wrong way[.]” Deputy Woody directed Defendant to put his hands
against the wall, and he handcuffed him. Deputy Woody testified Defendant “became very
angry with me and he started struggling.” Defendant was “ranting and raving,” and he told
Deputy Woody, “I’m going to kill you when I see you on the street.” Deputy Thompson
arrived to assist Deputy Woody, and they took Defendant by the arms and led him through
the hallway. Deputy Woody testified that Defendant then “rammed [him] against the wall
and [they] both fell.” Defendant fell on top of Deputy Woody, and Deputy Woody’s left
knee hit the concrete floor. When he stood up, his “leg gave away, and [he] went back down
to the floor.” He tried again but was still unable to stand. Deputy Woody thought his leg
was broken. He was taken to the hospital. He underwent surgery for a torn tendon. He
returned to work on January 29, 2011, but he was limited to “light duty.” He was able to
return to “regular duty” on June 2, 2011. He testified that he still had some pain in his knee
at the time of trial.
Officer Anthony Jones worked in the jail division and was assigned to the court
tunnel. He testified that he heard “loud noises” coming from the hallway. He then saw
Deputy Woody and Defendant “having words and they started up toward the hall” toward
him. Defendant was handcuffed, and “he was a little irate and was turning trying to jerk
away from Deputy Woody.” Jones saw Defendant “turn[ ] and spin[ ] Officer Woody up
against the wall and they fell.” He and Deputy Thompson lifted Defendant off Deputy
Woody and escorted Defendant to the jail. He testified that Deputy Woody “was in anguish.
He was in pain.”
-2-
Deputy Mark Thompson was in the courtroom when Deputy Woody escorted
Defendant out of the courtroom door “leading to the stairwell going to the tunnel.” He
testified, “[T]he next thing I heard was Officer Woody saying, ‘Quit running. Stop.’” He left
the courtroom to assist Deputy Woody. When he got to them, he saw Deputy Woody putting
handcuffs on Defendant. Defendant was “agitated.” He testified that as they walked toward
the jail, Defendant “threw himself into Deputy Woody which caused both of them to go into
the wall” and “they both ended up going down and hitting the ground.”
The defense called Judge Louis Montesi to testify. Judge Montesi testified that he
recalled officers bringing to his attention that there was a warrant for Defendant’s arrest. He
testified that when he ordered that Defendant be taken into custody, Defendant “became very
upset and very angry and very loud.” Defendant yelled profanity in the courtroom.
Sentencing hearing
At the sentencing hearing, a presentence report was admitted into evidence.
Defendant’s father testified that he was the program director for Mid-South Health Med. He
testified that Defendant could live with him if Defendant was released on probation and that
he could provide Defendant opportunities for community service through the facility where
he (Defendant’s father) worked. He described Defendant as “a caring person.”
At the conclusion of the sentencing hearing, the trial court classified Defendant as a
Range II multiple offender. The court considered the facts at trial, the sentencing hearing
and the presentence report, which indicated that Defendant’s “criminal history [wa]s
extensive.” The court declined to apply two enhancement factors, Tenn. Code Ann. § 40-35-
114(6) and (19), and did not apply any mitigation factors.
Sufficiency of the Evidence
Defendant contends that the evidence at trial was insufficient to support his
conviction. Specifically, Defendant asserts that there was insufficient evidence that the
victim suffered serious bodily injury.
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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000).
This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or
-3-
a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999).
In determining the sufficiency of the evidence, this court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 199 Tenn. 298,
286 S.W.2d 856, 859 (Tenn. 1956). 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. Liakas, 286 S.W.2d at 859. This court must afford the State the
strongest legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Because a verdict of guilt against a defendant removes the presumption of
innocence and raises a presumption of guilt, the convicted criminal defendant bears the
burden of showing that the evidence was legally insufficient to sustain a guilty verdict. Id.
A conviction for reckless aggravated assault requires proof beyond a reasonable doubt
that the defendant recklessly caused serious bodily injury to another. Tenn. Code Ann. § 39-
13-102(a)(2) (2010 Repl.). “Serious bodily injury” is defined as bodily injury that involves:
(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty[.]
Tenn. Code Ann. § 39-11-106(a)(34) (2006). “Bodily injury,” is defined to “include[ ] a cut,
abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment
of the function of a bodily member, organ, or mental faculty.” Id. at § 39-11-106(a)(2).
Concerning these definitions, this court has stated:
While the phrase “serious bodily injury” . . . is not susceptible to precise
legal definition, it must describe an injury of a greater and more serious
character than that involved in a simple assault. The distinction between
“bodily injury” and “serious bodily injury” is generally a question of fact for
the jury and not one of law.
State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).
-4-
Defendant relies on State v. Sims, in which this court held that the evidence of the
victim’s injuries were insufficient as a matter of law to support a finding of serious bodily
injury based on extreme physical pain or protracted or obvious disfigurement. 909 S.W.2d
46, 49-50 (Tenn. Crim. App. 1995), abrogated on other grounds by State v. Charles Justin
Osborne, No. 01C01-9806-CC-00246, 1999 WL 298220 (Tenn. Crim. App., at Nashville,
May 12, 1999). In Sims, the victim was struck in the face with a pistol one time. Id. at 48.
As a result, she had a broken and swollen nose, a bruised cheekbone, two black eyes, and a
cut across the bridge of her nose.” Id. She testified that she experienced extreme physical
pain in her face and nose. The victim was treated during a hospital visit that lasted
approximately two hours and prescribed pain medication. She testified that she consulted
a plastic surgeon but did not undergo surgery for her injuries. She missed five weeks of work
due to her injuries.
Interpreting the statutory meaning of “extreme physical pain,” this court reasoned,
“[w]e do not believe that the pain commonly associated with a broken nose is extreme
enough to be in the same class as an injury which involves a substantial risk of death,
protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment
of the use of a bodily member, organ or mental faculty.” Id. at 49. The court acknowledged
“the difficulty of quantifying or measuring pain” and concluded that the evidence was
insufficient to support the element of serious bodily injury based on extreme physical pain
or protracted or obvious disfigurement. Id. at 49-50.
Since our decision in Sims, this court has applied its holding to various other injuries
sustained by victims in physical altercations and concluded that the subjective nature of pain
is a question of fact to be determined by the trier of fact. State v. Eric A. Dedmon, No.
M2005-00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App., Feb. 23, 2006), no
perm. app. filed; see State v. Ryan Love, No. E2011-00518-CCA-R3-CD, 2011 WL 6916457,
at *4 (Tenn. Crim. App., Dec. 28, 2011), no perm. app. filed (victim suffered “serious bodily
injury” where victim had severe injuries to his face, including cuts and bruises throughout,
a right eye which was swollen shut, and a swollen left eye); see State v. Holly Lack Earls,
No. 01C01-9612-CC-00506, 1998 WL 15896, at *7 (Tenn. Crim. App. Jan. 16, 1998)
(diabetic victim sustained serious bodily injuries including a broken finger, a broken arm
requiring a metal plate, injuries to his shoulder, legs, and ankles, loss of “a lot of blood,” was
in pain “for a long time,” and was hospitalized “for a couple of days”); see also State v.
Darren Matthew Lee, No. M1999-01625-CCA-R3-CD, 2000 WL 804674, at *4 (Tenn. Crim.
App. June 23, 2000), perm. app. denied (Tenn. Dec. 11, 2000) (victim kicked “repeatedly”
in the face, resulting in two black eyes, severe facial swelling and a torn lip, was unable to
work for a week, suffered headaches for three to four weeks, and suffered “extreme physical
pain”); see also State v. James Ruben Conyers, No. M2002-01007-CCA-R3-CD, 2003 WL
22068098, at *9-10 (Tenn. Crim. App. Sept. 5, 2003), perm. app. denied (Tenn. Jan. 26,
-5-
2004) (victim suffered “serious bodily injury” when she was hospitalized for seven days with
multiple head trauma, including deep scalp lacerations, bruising and swelling of the neck,
and lost “a significant amount of blood”); State v. Chester Dale Gibson, No. M2005-01422-
CCA-R3-CD, 2006 WL 770460, at *11 (Tenn. Crim. App. Mar. 24, 2006), perm. app. denied
(Tenn. Aug. 28, 2006) (victim suffered repeated blows to the face causing fractures to the
nasal and eye area, two black eyes, a bruise to the right temple, a bruised lip and swollen and
bloody nose, and was in “extreme physical pain”).
Defendant also relies upon our supreme court’s decision in State v. Farmer, 380
S.W.3d 96 (Tenn. 2012), in which the court clarified the definition of serious bodily injury
and held that a gunshot wound does not necessarily cause bodily injury that involves “a
substantial risk of death.” In that case, the victim was shot in the leg. The bullet passed
through the victim’s leg. The wound required minimal medical treatment and did not cause
the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The
court noted that hospital records classified the victim’s pain as “mild” to “moderate” and that
the victim did not testify as to the degree of pain he experienced. Id. at 101. The court
concluded that “[a] jury could not reasonably infer from [the victim]’s testimony, the hospital
records, and the nature of his injury that [the victim]’s wound involved extreme pain.” Id.
at 101-102. The court vacated the defendant’s conviction for especially aggravated robbery,
finding that the State failed to present sufficient proof of a serious bodily injury, and
modified Defendant’s conviction to aggravated robbery. Id. at 103.
In the present case, Deputy Woody testified that his “patella tendon was shredded
from here to there.” In order to repair his knee, he underwent surgery, in which the tendon
was stitched back to the bone, and he subsequently received physical therapy. He was unable
to return to work for more than two months after his injury and then was allowed only to
return to light duty until approximately seven months after his injury. Deputy Woody was
unable to stand immediately after his injury, and he described the pain in his knee as
“serious,” “extreme,” and “unbearable.” He was given pain medication when he arrived at
the hospital. Others testified that Deputy Woody “was in tears” and described his condition
as “severe pain” and “anguish.” Deputy Newton testified that Defendant’s “kneecap wasn’t
where it was supposed to be.” We distinguish Deputy Woody’s injuries from those described
in Sims and Farmer. The proof, missing in those cases, was present in this case to meet the
definition for serious bodily injury. Defendant is not entitled to relief on this issue.
Sentencing
Defendant asserts that his sentence was improper because the trial court misapplied
certain enhancement factors and failed to apply certain mitigating factors. Defendant also
asserts that the trial court erred by denying his request for alternative sentencing.
-6-
When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. The party challenging the sentence
imposed by the trial court has the burden of establishing that the sentence is erroneous.
Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Comments; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).
Recently, our supreme court held that the same abuse of discretion standard should
be applied to the manner of service of a sentence, which includes the grant or denial of
probation. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). When determining if
confinement is appropriate, the trial court should consider whether (1) confinement is
necessary to protect society by restraining a defendant who has a long history of criminal
conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to
commit similar offenses, or (3) measures less restrictive than confinement have frequently
or recently been applied unsuccessfully to the defendant. Tenn. Code Ann. §
40-35-103(1)(A)-(C) (2010 Repl.). The trial court may also consider a defendant’s potential
or lack of potential for rehabilitation and the mitigating and enhancement factors set forth
in Tennessee Code Annotated sections 40-35-113 and -114. Tenn. Code Ann. §§
40-35-103(5) (2010 Repl.), -210(b)(5) (2010 Repl.); State v. Boston, 938 S.W.2d 435, 438
(Tenn. Crim. App. 1996). The sentence imposed should be the least severe measure
necessary to achieve the purpose for which the sentence is imposed. T.C.A. § 40-35-103(4).
The burden of demonstrating the suitability for full probation rests with the defendant. Tenn.
Code Ann. § 40-35-303(b) (2010 Repl.).
Unless a trial court “wholly depart[s] from the 1989 Act, as amended in 2005[,]”
misapplication of enhancement or mitigating factors does not invalidate a sentence. Thus,
a maximum sentence within the appropriate range, in the total absence of any applicable
enhancement factors, and even with the existence of applicable mitigating factors, should be
upheld as long as there are reasons consistent with the statutory purposes and principles of
sentencing. Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345-46 (“Similarly, if the trial
court recognizes and enunciates several applicable mitigating factors, it does not abuse its
discretion if it does not reduce the sentence from the maximum on the basis of those
factors.”).
Defendant contends that the trial court should not have found that Defendant had a
previous history of criminal convictions or criminal behavior in addition to those necessary
-7-
to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1), and that the trial court
should have mitigated his sentence by finding that his physical condition of being handcuffed
significantly reduced his culpability for the offense and that he acted under duress.
Defendant also asserts that the trial court erred by denying his request for an alternative
sentence.
Defendant was classified by the trial court as a Range II offender, and he does not
challenge that classification on appeal. Defendant was convicted of reckless aggravated
assault, a Class D felony. Tenn. Code Ann. § 39-13-102(a)(2). Therefore, the appropriate
sentencing range was not less than four nor more than eight years. Tenn. Code Ann. § 40-35-
112(b)(4). The trial court imposed a sentence of five years, one year above the minimum
sentence within the range. The trial court relied upon Defendant’s previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range. See Tenn. Code Ann. § 40-35-114(1). Defendant contends that the trial
court’s reliance on this factor was misplaced because his criminal record consists only of
misdemeanors, other than the two felonies used to enhance his range. However, a trial court
may apply this factor based solely on a prior history of misdemeanor convictions. see State
v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App. 1995); see also State v. Seals, No.
E2008-02178-CCA-R3-CD, 2010 WL 3384978, at *6 (Tenn. Crim. App. Aug. 27, 2010).
The presentence report in this case shows that Defendant’s prior criminal history includes
convictions for drug offenses, driving while his license was suspended or revoked, theft of
property, failure to appear, and attempted burglary of a building. The trial court’s reliance
on this factor was proper. Moreover, as noted above, under our supreme court’s ruling in
Bise, even a trial court’s “misapplication of enhancement or mitigating factors does not
invalidate a sentence.” Bise, 380 S.W.3d at 706.
In denying Defendant’s request for alternative sentencing, the trial court again noted
Defendant’s extensive criminal history. The court also noted that the presentence report
indicated that Defendant had been on probation for another offense, and his probation was
revoked. Also based on Defendant’s lengthy criminal record, the trial court determined that
measures less restrictive than incarceration had been applied unsuccessfully. Finally, the trial
court found that allowing probation would depreciate the seriousness of the offense, noting
that Defendant’s actions began in the courtroom during court proceedings. Despite
Defendant’s argument that the trial court abused its discretion in sentencing him to
confinement, our appellate review reveals that the record in this case reflects that the trial
court considered the sentencing principles and all relevant facts and circumstances in
determining that imprisonment was appropriate.
We conclude that Defendant’s sentence of five years for his conviction for reckless
aggravated assault is within the applicable range and consistent with the purposes and
-8-
principles of sentencing. Furthermore, the record shows that the trial court stated its reasons
for imposing the sentence, followed the statutory sentencing procedure, made findings of fact
that are adequately supported in the record, and gave due considerations to the relevant
sentencing principles. Based on our review, we conclude that the trial court did not abuse
its discretion in sentencing Defendant to serve five years in confinement. Defendant is not
entitled to relief on this issue.
Plain error
Defendant asserts that he is entitled to relief under a “plain error” analysis of
comments made by the trial court to the jury and the trial court’s questioning of the victim.
The State responds that Defendant has waived this issue by failing to object at trial, and even
if the issue is not waived, Defendant has failed to establish the five prerequisites for plain
error.
Defendant did not object at trial to the comments or questions complained about on
appeal. Relief is generally not available when a party has “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of any error.” Tenn. R. App. P.
36(a); see Sims, 45 S.W.3d 1, 16 (Tenn. 2001). Defendant asserts, however, that the
comments and questions by the trial court constitute plain error. The doctrine of plain error
provides that “[w]hen necessary to do substantial justice, an appellate court may consider an
error that has affected the substantial rights of a party at any time, even though the error was
not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P.
36(b). In order for us to find plain error,
(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial
right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is
necessary to do substantial justice.
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established by
the record before we will recognize the existence of plain error, and complete consideration
of all the factors is not necessary when it is clear from the record that at least one factor
cannot be established. Id. at 283.
Defendant asserts that the trial court’s pretrial instructions “prejudicially affect[ed]
[Defendant] by offering a factually similar circumstance” to the jury. During jury selection,
the trial court made the following comments to the jury:
-9-
In other words you’re really on the jury throughout the trial but at the end
of the case and all twelve jurors are ready to go back and survived
everything to begin deliberations, at that time you would be excused and
you would not be able to participate in the actual deliberations but if
something happens to one of the jurors, God forbid something happen, if
something unexpected come[s] up, one of them cannot continue, then we
have a person who has sat here and listened to everything and can step in
and take their place.
The example I use is about a month ago, maybe six weeks ago w[h]ere in
a trial just like this one and I was excusing everyone for lunch. I mean the
jurors and No. 6 seat back there and they were filing out, you notice there’s
a couple of steps over there, got the first one but missed that second step.
I was sitting back here and he went down like a tree. It sounded real loud
and all but he go[t] up and said he was fine.
When he came back from lunch his arm was hurting where he landed. He
wanted to go to the doctor to the hospital and get it checked out. I was able
to do that. The alternate stepped in and took his place. Later I found out it
wasn’t broken or anything like that. It was just really sore and he was fine
but that’s an excellent example of the purpose of an alternate juror.
Something unexpected happened have a person who can step in and take
that person’s place. Ok. Do you understand the purpose of an alternate
juror?
Defendant contends that the trial court’s comments prejudicially affected the outcome
of the case because the trial judge “anecdotally cautioned [the] jury about the risk of injury
in the courtroom.” We agree with the State that, taken in context, the above comments by
the court were altogether unrelated to the facts of the present case, and therefore did not
constitute “plain error.”
Defendant also asserts that in its examination of the victim and in reading bench notes
to the jury, the trial court “demonstrated subjective feelings” regarding the victim’s pain and
improperly commented on the weight of the evidence. The Tennessee Constitution prohibits
judges from making any comment “with respect to matters of fact.” Tenn. Const. art. VI, §
9; State v. Suttles, 767 S.W.2d 403, 406 (Tenn. 1989). The aim of this rule is to avoid giving
“the jury any impression as to [the judge’s] feelings or to make any statement which might
reflect upon the weight or credibility of evidence or which might sway the jury.” Suttles, 767
S.W.2d at 407; see State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991). “It is natural
that jurors should be anxious to know the mind of the Court, and follow it; therefore, a Court
-10-
cannot be too cautious in its inquiries.” McDonald v. State, 89 Tenn. 161, 164, 14 S.W. 487,
488 (Tenn. 1890). That said, our Rules of Evidence, however, specifically permit the
interrogation of witnesses by the trial judge:
(b) Interrogation by Court. The Court may interrogate witnesses.
(c) Objections. Objections . . . to interrogation by [the court] may be made
at the time or at the next available opportunity when the jury is not present.
Tenn. R. Evid. 614(b), (c). So long as the inquiry is impartial, trial courts may ask questions
to either clarify a point or to supply any omission. See Collins v. State, 220 Tenn. 275, 416
S.W.2d 766 (Tenn. 1967); Parker v. State, 132 Tenn. 327, 178 S.W. 438 (Tenn. 1915).
In the present case, the trial court questioned the victim Deputy Woody after the
State’s direct examination and Defendant’s cross-examination:
Q I just have a couple of follow-up questions just for clarifications.
A Yes, sir.
Q First of all, Officer Woody – Deputy Woody, just for the record, the
jurors can see you but for the record how tall are you?
A Five-four-and-a-half.
Q How much do you weigh?
A Approximately 145.
Q 145. Okay. Now, when you showed the jurors how the defendant
pushed into you and you went down, you were standing in front of
my bench here. Could you describe that in a little more detail
please? For an example was it a shoulder that went into your chest
or his elbow or what, just describe what happened?
A It was a shoulder because we standing [sic] by pretty what [sic] the
same height. So when he rammed me into the wall with his
shoulder, I went down and he went down with me.
Q He went down with you so he landed immediately on you?
-11-
A Yes, sir.
Q Now, I need to gauge the level of your pain. I took notes. First it
was no numb [sic]. Then the pain started you said and it got worse
and it got serious. I need for you to describe – when you say it was
serious, describe what you mean about the pain that you felt in your
knee?
A Well, it like I said was numb. Apparently it deadened – the nerves
was dead, and then when the nerves starting coming back to life, the
pain starting coming back and it started increasing until it was
hurting pretty bad. Then I asked – I told attendant – I said you got
anything to give me. He said, well, I can get you some – something
for the pain, and he went and got some pain medicine, and I took it
while I was still waiting to be treated.
Q When you say the pain was serious, what do you mean by
“[s]erious”?
A It was kind of unbearable.
Q Unbearable?
A Yes, sir.
Q So it was extreme?
A Yes, sir.
Q So you were hurting pretty bad?
A Yes, sir.
Defendant argues that the trial court’s question whether the victim’s pain was
“extreme” went beyond clarification and invaded the province of the jury. Defendant asserts
that “the record is factually void of all objective elements of the definition of serious bodily
injury, [therefore] the admission of this prejudicially developed testimony of the single
subjective element [of extreme physical pain] is an error of sufficient magnitude that it
probably changed the outcome of the trial.” As we have already discussed in this opinion,
there was sufficient evidence in the record, even without the victim’s answers to the trial
-12-
court’s questions, of extreme physical pain. Defendant has not established that consideration
of the alleged error is necessary to do substantial justice. We conclude that the prerequisites
for a finding of plain error are not satisfied in this case.
CONCLUSION
After a careful review of the record, we affirm the judgment of the trial court.
_________________________________
THOMAS T. WOODALL, JUDGE
-13-