Opinion
C.C.A. No. 03C01-9801-CR-00015.
April 30, 1999.
Appeal from Hamilton County, Hon. Douglas Meyer, Judge (Second Degree Murder).
REVERSED REMANDED
FOR THE APPELLANT, DEBIASI SIRNARD KING, JOHN ALLEN BROOKS, Attorney at Law.
FOR THE APPELLANT, DEWAYNE KING, LISA M. MACK, Attorney at Law.
FOR THE APPELLEE, JOHN KNOX WALKUP, Attorney General Reporter, MICHAEL J. FAHEY, II, Assistant Attorney General, YOLANDA MITCHELL, Asst. District Attorneys General.
WILLIAM H. COX, III, District Attorney General.
C. LELAND DAVIS
The defendants, Debiasi Sirnard King and Dewayne King, appeal from their convictions of the second degree murder of Fernandos Hawkins. The Kings, who are brothers, were indicted and tried jointly for the crime of first degree murder along with their younger brother, Devon King. A Hamilton County jury found Debiasi and Dewayne guilty of the lesser included offense of second degree murder and found Devon guilty of the lesser included offense of voluntary manslaughter. Debiasi is presently serving a 25-year sentence in the Department of Correction, and Dewayne is serving his sentence of fifteen years. In this appeal, Debiasi and Dewayne raise numerous issues for our consideration:
Joint issues
1. Whether they were denied a fair trial by the method employed in jury selection.
2. Whether the trial court erred in holding court on Sunday.
3. Whether the trial court erred in ruling during trial that Dewayne King would be severed from the case unless his counsel recovered from illness by the following day.
4. Whether the trial court erred in excluding Antoine Coe's testimony regarding Darrius Malone's prior conduct.
5. Whether the trial court erred in admitting a letter containing apparent gang references which was found in the vehicle in which the Kings were riding during the relevant events.
6. Whether a separation of the sequestered jury deprived the defendants of a fair trial.
Debiasi King's individual issue:
1. Whether the sentence imposed is excessive.
Dewayne King's individual issues:
1. Whether the evidence sufficiently supports his conviction.
2. Whether the trial court erroneously instructed the jury by interjecting information outside the pattern instructions which was favorable to the state.
3. Whether the trial court erroneously excluded evidence about Greg Kelsey's prior conviction of a crime involving use of a gun.
Having reviewed the briefs, heard oral arguments, and considered the law, we reverse the defendants' convictions and remand the case for a new trial.
This case is the result of the senseless confrontation between two groups of young men on the streets of Chattanooga. Although those involved denied gang affiliation, there was evidence that the two groups were members of the rival "Bloods" and "Crips" gangs and that the entire incident began over the exchange of disrespectful hand signs used by gang members.
By all accounts, a Nissan Maxima driven by Greg Kelsey and occupied by Darius Malone, Johnny White and Fernandos Hawkins was parked off the road at the intersection of Tunnel and Wilcox on June 25, 1995, when Debiasi, Dewayne and Devon King drove by in a distinctive white Lincoln convertible. The evidence is conflicting whether Greg Dixon was in the Maxima. Likewise, there is conflicting evidence whether Ragounda Peyton, Dewayne King's girlfriend, was in the Lincoln. According to surviving occupants of the Maxima, occupants of the Lincoln threw up Crip hand signs at them. Occupants of the Maxima testified they did not respond with Blood signs. In contrast, the Kings' evidence was that the individuals in the Maxima threw up Blood hand signs, but the Kings did not respond with Crip signs.
A short time after this first encounter, the two groups came upon each other in another location. Although the accounts of what occurred greatly diverge, the essential points are that the state's witnesses claimed that Dewayne and Debiasi King opened fire on the Maxima with .380 handgun and an AK-47, respectively, and the Kings maintained that they shot in self-defense in response to Johnny White jumping out of the front passenger seat with his hand in a bag so that it looked like he had a weapon and Greg Dixon getting out of the rear passenger seat with a 12-gauge shotgun. The Kings claimed that Dewayne shot the .380 into the air and Debiasi shot at the ground, and the Maxima's occupants claimed the Kings' weapons were pointed at the Maxima. A state's witness, who lived on the corner where these events transpired, testified she saw someone stand up in the back of the Lincoln convertible and open fire up into the air with a long, shotgun-type weapon. In any event, a bullet from the AK-47 struck the trunk lid of the Maxima and traveled through the car until it struck Fernandos Hawkins, who was in the back seat. The state's expert evidence was that this bullet traveled a straight path into the Maxima and had not ricocheted. The Kings concede that no shots were ever fired at them.
Debiasi King testified that Johnny White was the individual with the bag. He said the person with the shotgun looked like Greg Dixon.
After the shots were fired, both cars left the scene. The Kings went to their father's house. The occupants of the Maxima claimed they drove straight to Erlanger Hospital without stopping for red lights. There was evidence, however, that the shooting took place considerably earlier than the hour at which they arrived at the hospital. Additionally, no beer bottles were recovered from the Maxima, which was secured for inventory at Erlanger, even though the victim and his companions had been drinking bottled beer in the car at the time of the shooting. The evidence of the time lapse was significant to the defense, as it provided an explanation for the facts that no firearms were recovered from the Maxima and that Greg Dixon was not with the Maxima's occupants when they arrived at Erlanger.
From this evidence, the jury found the defendants Debiasi and Dewayne King guilty of second degree murder as a lesser included offense of the charged crime of first degree murder. The jury found Devon King guilty of voluntary manslaughter as a lesser included offense of the charged crime of first degree murder. Only Debiasi and Dewayne King are parties to this appeal.
Joint Appellate Issues I
The defendants' first joint issue is whether they were deprived of a fair trial due to the anomalous method of jury selection. The process by which the jury was selected was complex. The essence of it, however, is that fourteen jurors, a jury of twelve and two alternates, were selected and accepted by all parties at the end of the second day of the proceedings. The panel was not sworn that evening, and they were told they should return the following morning with the personal effects necessary for their service as sequestered jurors. The next morning, however, new circumstances came to light which caused the court to excuse two of the jurors, leaving a total of twelve. The court announced that two more jurors would be selected to bring the total back up to fourteen. Extensive voir dire was conducted. During the selection process, the court ruled that the parties could not "backstrike," that is, exercise remaining peremptory challenges against the twelve remaining jurors accepted the previous day, and defendants Debiasi and Dewayne King objected. When it became doubtful that a sufficient jury pool was available to seat two additional jurors, the trial court ruled that the case would proceed with a panel of twelve jurors if no alternates could be found, thereby reversing a previous ruling. Defense counsel conferred off the record, and counsel for Debiasi King reported on behalf of all three defendants, "Your Honor, we still couldn't agree [to seat any of the prospective replacement jurors], so per your orders, we'll go with the twelve."
The Rules of Criminal Procedure provide that after voir dire examination of prospective jurors, counsel shall submit written peremptory challenges to the trial court. Replacement jurors will be seated, followed by voir dire examination of the panel, followed by written peremptory challenges. Backstriking is allowed. The procedure continues in this manner "until a full jury has been selected and accepted by counsel." Tenn. R. Crim. P. 24(c).
Rule 24(e) provides that the "trial court in its discretion may use either [of two methods for selection of alternate jurors]." Tenn. R. Crim. P. 24(e). First, the court could direct that one to four jurors in addition to the first twelve be selected. These alternates would, in the order of selection, replace any of the original twelve who were unable to complete their service. For each alternate selected, each defendant receives one peremptory challenge, and the peremptory challenge for each additional alternate may only be used as each alternate is selected. The peremptory challenges allowed for selection of the twelve original jurors may not be used against alternate jurors. Tenn. R. Crim. P. 24(e)(1) (amended 1997). Alternatively, the court may direct prior to the start of jury selection that one to four additional jurors be selected as alternate jurors. Each side receives one additional peremptory challenge per alternate for each defendant. No distinction would be made between the alternates and other jurors until just before deliberation, at which time the court would select at random or by lot the twelve jurors to render a verdict. Tenn. R. Crim. P. 24(e)(2) (amended 1997).
Rule 24 does not require that alternate jurors be selected. Moreover, the trial court is vested with the discretion to choose which of the two prescribed methods will be employed for selection of alternates, if alternates are to be used. Tenn. R. Crim. P. 24(e). In the present case, the court chose the second method for alternate selection, but then it decided not to use alternates when faced with a mistrial because a panel of fourteen could not be selected from the jury pool that was available. We see no abuse of discretion in that decision.
Further, we find no error in the court's ruling on the use of backstrikes. A virtually identical situation occurred inState v. Phillips, 728 S.W.2d 21 (Tenn.Crim.App. 1986). InPhillips, the jury was accepted by both sides but had not yet been sworn when one of the defense attorneys requested permission to conduct further voir dire of a juror about a friendship with a law enforcement official. Id. at 25. The court allowed the voir dire but refused to excuse the juror for cause and refused to allow the defense to exercise a peremptory challenge against the juror after she revealed she knew the sheriff in an official capacity. Id. On appeal, we found no error based upon Rule 24(c)'s provision that the right to exercise peremptory challenges ceases once the jury has been selected and accepted by the parties. Id.
II III
The defendants' second and third joint issues are interrelated. First, they claim that their convictions are infirm because the trial court held court on Sunday in contravention of the common law prohibition against the performance of high judicial functions on that day. Second, they allege that the trial court erred in ruling mid-trial, on Saturday, that Dewayne King would be severed from the case unless his counsel recovered from illness by the following day. The state counters that the defendants agreed to hold court on Sunday and have therefore waived any complaint. Furthermore, the state alleges that any complaint about the proposed severance is moot because the severance never took effect. The interplay of these issues is complex.
On Tuesday, the second day of trial, the court mentioned the possibility of holding court on Sunday. On Friday, the fifth day of trial, the court informed counsel that the sequestered jury had expressed interest in holding court on Sunday and inquired about the parties' amenability to accommodating the jury. Counsel for Debiasi and Dewayne objected, while the state and counsel for Devon did not. On Saturday, the sixth day of trial, counsel for Dewayne became so ill that she had to leave the courtroom during portions of the proceedings. It was apparent that Dewayne's counsel was unable to proceed on Saturday afternoon, and the state moved for a severance of Dewayne King so that the trial could continue. The state offered use immunity to Dewayne if his testimony was necessary for the defense of Debiasi and Devon. Counsel for all three defendants voiced their objection to a severance. Counsel for Dewayne informed the court that she had been responsible for preparation of portions of the joint defense with which the co- defendants' counsel were not familiar. Expressing concern about the longevity of a jury without alternates, the state proposed that the trial proceed on Sunday rather than adjourning until Monday. Counsel for Devon agreed without reservation. Given the new set of circumstances, counsel for Debiasi acquiesced despite his previous objection. Counsel for Dewayne memorialized the fact that she felt pressured and indicated that holding court on Sunday was not as undesirable as having her client's case severed.
From this discussion, the court found that all three defendants had consented to holding court on Sunday, however, "the only hesitation I have is on [Dewayne's counsel], whether or not she could freely agree when she is obviously ill and having trouble thinking." Accordingly, the court ruled that Dewayne King would be severed from the case unless his attorney was able to proceed the following afternoon. With respect to the propriety of holding court on Sunday, the trial court observed that in the thirty years since the last Tennessee Supreme Court decision prohibiting Sunday proceedings, "Blue Laws" prohibiting commercial activities on Sunday had been repealed and society had become much more tolerant of non-essential functions being performed on Sunday. In fact, the court noted that every type of commercial activity, other than the sale of bottled liquor, is now legal and accepted by society on Sunday. Further, the court noted the sequestered jury's desire to work on Sunday.
When the appointed hour on Sunday arrived, Dewayne's attorney appeared and indicated she was no longer ill and was able to proceed. Thus, the severance never took effect, and the trial of all three defendants proceeded with the presentation of defense proof.
The Kings are correct that the common law has historically prohibited court proceedings from taking place on Sunday. See generally 23 Tenn. Juris. Sundays and Holidays § 4 (1998). In Moss v. State, 131 Tenn. 94, 110-11, 173 S.W. 859, 863 (1915), the supreme court said that holding court on Sunday was not a mere irregularity; rather, it was "as fatal as performing the same act at a place other than that prescribed by law." Similarly, in Styles v. Harrison, 99 Tenn. 128, 128, 41 S.W. 333, 333 (1897), the court said that a judgment rendered on Sunday "is not simply erroneous, but is absolutely void." As recently as 1965, the Tennessee Supreme Court reaffirmed the principle of "Dies dominicus non est juridicus." Smith v. State, 215 Tenn. 314, 317, 385 S.W.2d 748, 317 (1965). That is to say, "Sunday is not a court day, or day for judicial proceedings, or legal purposes." Black's Law Dictionary 455 (6th ed. 1990).
Smith is the most recent decision of any Tennessee appellate court which directly addresses the propriety of holding court on Sunday. But cf. State v. Hurley, 876 S.W.2d 57, 68 (Tenn. 1993) (discussing deliberations and return of verdict on Sunday in context of lateness of the hour but not day of the week). In Smith, the trial began on a Monday and continued through Saturday night. Smith, 215 Tenn. at 316, 385 S.W.2d at 749. The jury was charged Saturday night, and deliberations continued into Sunday morning. Id. at 316-17, 385 S.W.2d at 749. Early Sunday morning, the jury made an inquiry of the court, and they were returned to the courtroom where the court reread a portion of the charge. Id. at 317, 385 S.W.2d at 749. Thereafter on Sunday morning, the jury returned its verdict. Id. at 317, 385 S.W.2d at 749.
In analyzing the propriety of the foregoing actions, the supreme court began by acknowledging the common law rule that judicial acts could not be performed on Sunday, and a statutory abrogation of the common law was required to confer the right or authority to perform a judicial act. Id. at 317, 385 S.W.2d at 750. Moreover, the court observed, Tennessee statutory law went so far as to "prevent the exercise of any unnecessary secular labor on the Sabbath," thereby indicating the "unquestionable" public policy of this state against performance of secular or judicial acts on Sunday. Id. at 318-19, 385 S.W.2d at 750 (citing Tenn. Code Ann. § 39-4001); accord Moss, 131 Tenn. at 107-08, 173 S.W. at 862 (noting statutory prohibitions against secular and certain judicial activities on Sunday). Ultimately, the court held that receiving and recording a verdict on Sunday fell outside the scope of the rule; however, reinstructing the jury was a "high judicial function" not lawfully performed on Sunday and which required reversal and remand for a new trial.Smith, 215 Tenn. at 315, 385 S.W.2d at 751.
The Code provisions cited in Moss, sections 1723, 1724, 2902 (Shannon's Code sections 3029, 3031, 4623) were codified in the 1955 Code at sections 20-903, 39-4001 and 39-4002. Sections 39-4001 and 39-4002 were repealed in 1981. Section 20-903 was recodified at 20-6-301 and later repealed in 1986.
Accord State v. Hurley, 876 S.W.2d 57, 68 (Tenn. 1993) (deliberations took place and verdict returned on Sunday).
In the case at bar, the trial court acknowledged theSmith decision. The trial court correctly found that much has changed since the supreme court's opinion in Smith. In fact, the statute which the Smith court found indicative of the "unquestionable" public policy against holding court on Sunday was repealed many years ago. See 1981 Tenn. Pub. Acts, ch. 213, § 1 (repealing Tenn. Code Ann. § 39-4001). Likewise, the statutes relied upon in Moss, an opinion upon which the Smith court relied, have been repealed. See 1986 Tenn. Pub. Acts, ch. 538, § 1 (repealing § 20-6-301); 1981 Tenn. Pub. Acts, ch. 213, § 1 (repealing § 39-4002).
Notwithstanding the repeal of statutory prohibitions against Sunday activities, there has been no legislative enactment or supreme court decision which specifically abrogates the common law rule against holding court on Sunday. Thus, the question becomes whether the trial court properly abandoned the common law rule in the absence of legislative enactment or high court decision. See Hanover v. Ruch, 809 S.W.2d 893, 896 (Tenn. 1991) (where the legislature has not acted, it is the duty of the Tennessee Supreme Court to abolish obsolete common law doctrines);Smith, 215 Tenn. at 317, 385 S.W.2d at 750 ("In jurisdictions where the common law prevails, the right or authority to perform any judicial act on Sunday must be derived from a statute conferring that right or authority.") (citing 50 Am. Jur. Sundays and Holidays § 73 (1944)).
In this state, abandonment of the common law by judicial action is the province of the Tennessee Supreme Court, not the trial and intermediate appellate courts. See, e.g., Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996) (abolition of obsolete common law doctrines is "the special duty of this Court"); Jerome Howard Hanover v. Robert M. Ruch, M.D., No. 58 (Tenn.Ct.App., Western Section, May 1, 1990) ("Abolishment [of the common law tort of criminal conversation] lies with the legislature or with the Supreme Court. . . . It is the duty of the Court of Appeals to apply the law as promulgated [by] the legislature or as announced by the Supreme Court.") (citation and internal quote omitted),rev'd, 809 S.W.2d 893 (Tenn. 1991); Lentz v. Baker, 792 S.W.2d 71 (Tenn.Ct.App. 1989) (court of appeals without authority to abolish tort of alienation of affections despite its inclination to do so); cf. Davis v. Davis, 657 S.W.2d 753, 743 (Tenn. 1983) (in case abolishing interspousal immunity, supreme court noted court of appeals had adhered to doctrine of stare decisis).
It is apparent from the language of Moss and Styles,supra, that holding court on Sunday results in a void proceeding. Thus, the state's contention that the defendants could waive any objection by consenting to the Sunday proceedings is misplaced. Cf. State v. Preston Carter, — S.W.2d — -, No. 02S01-9705-CR-00045, slip op. at 6 (Tenn., Jackson, Feb. 1, 1999) (defendant did not waive claim conviction was void based upon insufficiency of charging instrument by failing to raise the issue before pleading guilty). It is equally apparent from precedent that the trial court was without authority to abandon the common law rule absent legislative or supreme court abrogation of it. At first blush, this case might appear to be an appropriate "test" case for supreme court reexamination of the public policy post-Smith and consideration of whether that policy will support a rule of voidable, not void, Sunday proceedings in which the parties would be able to waive objections by their consent. However, upon careful examination, it is apparent that this is not such a case because Dewayne King's "consent" to Sunday proceedings was illusory.
See infra for discussion of consent.
In pertinent part, Tennessee Rule of Criminal Procedure 14(c)(2) provides that upon motion of the state for severance of a defendant during trial, the state shall grant a severance if (1) the defendant to be severed consents, and (2) the severance is "necessary to achieve a fair determination of the guilt or innocence of one or more defendants." Tenn. R. Crim. P. 14(c)(2). In the present case, this rule was not followed. The court posed the alternatives of Sunday proceedings against severance of Dewayne King. Rule 14(c)(2) allowed counsel for Dewayne to prevent the severance by her objection. The rule conferred no authority on the trial court to impose the severance in the absence of Dewayne King's consent. It is apparent from the record that Dewayne's counsel opposed the severance, yet the trial court did not allow her the unconditional right to accept or prevent the severance as mandated by the rule.
Although not essential to our decision, it is noteworthy that there is no indication the severance was necessary for "a fair determination of guilt or innocence" of any defendant. Rather, the severance was a means by which to decrease the risk of a mistrial as to all three defendants if one or more jurors were unable to complete service.
Additionally, upon review of the statements made on the record by counsel and the court about Dewayne's attorney's illness, it is apparent that she was so ill that her ability to think clearly and advocate effectively was compromised. It is also apparent that counsel felt pressure from other counsel and the court with regard to her decision. With counsel's abilities so compromised, her "consent" via the choice between two unattractive alternatives, neither of which was viable under Tennessee law, in fairness cannot be considered consent at all.
Accordingly, we find reversible error. When the state made its mid- trial motion for severance of Dewayne King, he was not afforded the protection of Rule 14(c)(2) to freely elect between severance and remaining in the case. Moreover, the trial proceedings held on Sunday were absolutely void. Debiasi and Dewayne King's convictions must be reversed and the matter remanded to the trial court for a new trial.
IV
In their next joint issue, the defendants claim the trial court erred in excluding Antoine Coe's proffered testimony regarding Darrius Malone's prior conduct. Coe testified during a proffer that he knew Malone from attending school and serving jail time with him. Coe testified that Malone had a violent reputation. Coe said he had seen Malone assault others "a whole bunch of times," and Malone was removed from school due to his violence. Coe further testified that he had seen Malone driving a white Cutlass a few hours before the crime on trial took place. Malone yelled a phrase which would be derogatory to a Crip, and Malone's unidentified passenger yelled, "What's up, Blood? What's up, Blood?" and brandished a pistol. Coe further testified that Malone had shot into a crowd on a previous occasion.
Curiously, the record lacks an explicit ruling of the trial court on the admissibility of this evidence. After the proffer of Coe's testimony, the court heard argument, and its comments clearly indicate its inclination to exclude the bulk of this evidence. After hearing argument on the issue, the court said that it would be in recess for lunch and would resume the hearing thereafter. The court admonished Mr. Coe to return after lunch. When court resumed after the lunch break, the judge immediately began discussion of Dewayne King's attorney's illness and determined that court would be in recess until the following afternoon. When court resumed the next day, there was no further discussion of the admissibility of Mr. Coe's testimony.
Our initial impression is that the defendants have waived our consideration of this issue for two reasons. First, the defendants failed to bring this unfinished business to the court's attention once the proceedings reconvened. See Tenn. R. App. P. 36(a) (appellate court not required to grant relief when a party "failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error"). Second, neither defendant is specific in his brief about which portion of the proffered testimony should have been admitted. Defendant Debiasi King's argument is only one sentence long and claims simply, "The Court erred in refusing to allow Antone [sic] Coe to testify about the bad acts of Darrius Malone under Tennessee Rules of Evidence 405(b)." Defendant Dewayne King is only slightly more specific, claiming the testimony of Coe "concerned the victim and persons in [the] Maxima who had a gun" and that this evidence was relevant, probative and not outweighed by prejudicial effect. Both arguments are woefully deficient of citation to the record, citation to authority, statement of the precise issue to be reviewed, and adequate argument supporting the issue. See Tenn. R. App. P. 27(a), (g), (h). As such, our consideration is waived on this basis, as well. See Tenn. R. Ct. Crim. App. 10(b). Nevertheless, for the purpose of assisting the trial court upon remand, we will briefly address the aspects of this issue.
First, we consider whether Coe should have been allowed to testify about Malone's violent reputation. Evidence of a person's character or trait of character is generally not admissible to show conduct in conformity therewith. Tenn. R. Evid. 404(a). Notwithstanding, evidence of a victim's violent character may be admitted in the form of reputation or opinion evidence when self defense is alleged because this evidence is probative of whether the defendant or the victim was the first aggressor. See, e.g., Tenn. R. Evid. 404(a)(2), 405(a); State v. John D. Joslin, No. 03C01-9510-CR-002999, slip op. at 67-68 (Tenn.Crim.App., Knoxville, Sept. 18, 1997), perm. app. denied (Tenn. 1998); State v. Ruane, 912 S.W.2d 766, 779-82 (Tenn.Crim.App. 1995).
In the case at bar, however, Malone was not the victim but a witness. When the person with the violent reputation is a witness, admissibility of his character for violence is governed by Rule 404(a)(3), which provides that character evidence may be admitted as provided by Rules 607, 608 and 609. Generally, Rules 607, 608 and 609 provide for impeachment of a witness based upon his character for truthfulness or untruthfulness, specific instances of conduct probative of truthfulness or untruthfulness, or by evidence of conviction of certain crimes. Tenn. R. Evid. 608(a), (b), 609(a).
Under these rules, Malone's violent reputation is not admissible. Malone was not the victim, so the evidence does not pass the threshold of admissibility for violent reputation evidence via Rules 404 or 405. The evidence is not probative of the witness's veracity or criminal record, so it likewise does not gain admission via Rules 607, 608 and 609.
Next, the defendants question whether the trial court correctly excluded evidence regarding Coe's encounter with Malone and another man hours before the crime took place in which Malone used gang slang and his companion brandished a weapon. Malone testified that he had not possessed or owned a gun since the incident at the "strut," a previous incident when he fired a gun amidst a crowd of people. He also testified he was not a gang member, although he admitted having thrown gang signs while he was "locked up" and was familiar with some gang terminology.
At trial, the defense claimed Coe's testimony in this regard was relevant to show Malone's bad character and lack of credibility. Admission of evidence of specific instances of conduct relative to character of a witness is limited, and it may come in only on cross-examination of the witness. See Tenn. R. Evid 405(a). Similarly, "[s]pecific instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence," although they may be inquired into on cross-examination regarding the witness's character for veracity. Tenn. R. Evid 608(b). Obviously, Coe's proffered testimony about specific instances of Malone's conduct was not admissible to illustrate Malone's bad character or lack of credibility.
The defendant's claims about Coe's testimony also implicate impeachment by fact contradiction. Not only were Malone's prior bad acts offered as evidence, ipso facto, of his poor credibility, but these acts as described by Coe tend to contradict Malone's trial testimony about his avoidance of gang involvement. However, impeachment of a witness through fact contradiction is subject to the collateral evidence rule. State v. Perkinson, 867 S.W.2d 1, 6 (Tenn.Crim.App. 1992). "According to this rule, there can be no extrinsic proof of collateral matters[,] . . . [and] counsel must use cross-examination of the witness being impeached to bring out the contradictory fact and must accept the witness' response, even if it is a denial that counsel could disprove.'" Id. (quoting N. Cohen, D. Paine S. Sheppeard, Tennessee Law of Evidence, § 607.3 (2d ed. 1990)). In our view, the proffered evidence is presentable as fact contradiction on the issue of Malone's alleged gang involvement, and the trial court would not have abused its discretion in allowing Coe's testimony for this purpose. On the other hand, the question is not clear-cut, and the trial court's disallowance of Coe's testimony would likely fall within the range of its discretion as well. See, e.g., State v. Blanton, 926 S.W.2d 953, 960 (Tenn. 1996) (ruling on impeachment evidence pursuant to rule 609, Tenn. R. Evid., within trial court's discretion); State v. Baker, 785 S.W.2d 132, 134 (Tenn.Crim.App. 1989) (admission or exclusion of evidence left to discretion of trial court and will not be revisited on appeal short of abuse of that discretion).
Next, we take up the issue of whether the defense should have been allowed to question Coe about the underlying facts of Malone's prior crime involving the use of a gun. When Malone testified during the state's case-in-chief, he admitted he was incarcerated for crimes related to driving under the influence, marijuana and crack cocaine. He admitted he had juvenile adjudications for reckless endangerment, possession of a firearm and aggravated robbery. On cross-examination, he admitted he had previously stolen a .22 or .25 gun, and he had been given a .22 by someone nicknamed "Boo." He admitted that the reckless endangerment situation had occurred at the "strut" about one year earlier and involved the .22 from "Boo."
Tennessee Rule of Evidence 609(a) permits a party to attack a witness's credibility by asking the witness about certain criminal convictions on cross-examination. If the witness denies the conviction, it may be established through the public record. Tenn. R. Evid. 609(a)(1). Under the rule, juvenile adjudications are generally not admissible; however, they may be admitted "if conviction of the offense would be admissible to attack the credibility of an adult" and admission is necessary for a fair determination of the matter at bar. Tenn. R. Evid. 609(d). In this case, Malone testified on direct examination about his prior convictions and juvenile adjudications. On cross-examination, he testified in detail about two weapons he had possessed in the past and the fact that he had used a gun in an incident a year earlier at the "strut." The evidence elicited from Antoine Coe was, for the most part, cumulative of evidence already received from Malone himself. We are at a loss to see how any further details of Malone's prior adjudication involving the use of a gun were of value to the jury in assessing his credibility and necessary for a "fair determination" of the criminal case. See Tenn. R. Evid. 609(a), (d). Moreover, this evidence would have been cumulative of Malone's earlier testimony.See Tenn. R. Evid. 403 (exclusion of cumulative evidence).
"The crime must be punishable by death or imprisonment in excess of one year . . . or must have involved dishonesty or false statement." Tenn. R. Evid. 609(a)(2). Certain time limitations and procedural prerequisites may bar otherwise admissible convictions. Tenn. R. Evid. 609(b).
V
Next, the defendants question whether the trial court erred in ruling admissible a letter containing apparent gang references which was found in the Lincoln convertible. Ultimately, however, the record reflects that the letter was not admitted, and the state voluntarily withdrew its request to cross-examine Devon King about it. Debiasi King was not cross-examined about the letter, and there is no allegation that Dewayne King did not testify in order to avoid cross-examination about this evidence. Thus, the ruling did not affect the outcome of the trial. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). We fail to see that the issue is cognizable as an attack on the convictions before us; however, we will briefly address the issue to assist the trial court on remand.
Mario Brown testified during a jury-out hearing that the letter contained a rap lyric that he and his cousin Robert Smith had written. The composition is written in slang, and the letter contained distinctive characteristics, such as letters of the alphabet written upside down or with a pitchfork drawn through them. The witness denied the phrasing of the song and the distinctive writing had any gang- related significance. He denied being part of a gang, although he admitted he and the Kings were part of the "Eighth Street Crew" referenced in the rap lyric. Brown testified he left the letter in the white Lincoln sometime prior to the day of the crime when Devon King had given him a ride. The trial court ruled that the letter would be admissible on cross-examination of the defendants regarding whether they were affiliated with a gang.
Debiasi King's argument to this court consists of one sentence claiming without explanation that the evidence is irrelevant and prejudicial. No citation to the record or decisional authority appears. Dewayne King's argument is slightly more lengthy at four sentences. No authority is cited for the claim that the evidence is prejudicial and irrelevant. The inadequate presentation of the issue by both defendants constitutes waiver. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a), (g), (h). However, we address the issue briefly to provide guidance to the trial court on remand.
Relevant evidence is that "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. Relevant evidence is generally admissible. Tenn. R. Evid. 402. Among other reasons, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Tenn. R. Evid. 403.
In this case, the state's theory was that the defendants were prompted to commit this crime due to their affiliation with the Crips gang. The letter was found in Devon King's vehicle. A poster found in Debiasi King's room contained some of the same unique lettering as the letter. Clearly, the letter was relevant. It is also clear that the letter, if it does in fact indicate gang affiliation, is prejudicial. This trial, however, was remarkable for significant testimony and other evidence about gang affiliation of the defendants, the occupants of the Maxima, and some of the other witnesses. We fail to see error in the trial court's determination that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. Cf. State v. Erika Nelms, No. 02C01-9604-CR-00116, slip op. at 8-9 (Tenn.Crim.App., Jackson, May 23, 1997) (evidence about Gangster Disciples gang not unfairly prejudicial and admitted to show motive where one of three defendants indicated she committed the crime to curry favor with the gang).
VI
Both defendants claim that they were deprived of a fair trial due to a brief separation of the sequestered jury. Because we have found the case reversible due to the proceedings which took place on a Sunday and doubt that the unusual facts of the separation will repeat themselves on remand, lengthy analysis of this issue is not warranted. However, we note that the state sustained its burden of demonstrating that the jury separation was not prejudicial to the defendants. See Gonzales v. State, 593 S.W.2d 288 (Tenn. 1980); accord State v. Spadafina, 952 S.W.2d 444, 452-53 (Tenn.Crim.App. 1996). There was no error.
Debiasi King's Individual Issue VII
Debiasi King claims that the maximum 25-year sentence imposed is excessive. Due to the necessity of a reversal and remand for a new trial, it is unnecessary that we review the propriety of the sentence. Accord State v. Roman C. Ball, No. 03C01-9410-CR-00363, slip op. at 2 (Tenn.Crim.App., Knoxville, Mar. 30, 1995), app. dismissed (Tenn. 1996); cf. State v. King, 905 S.W.2d 207, 213 (Tenn. Crim App. 1995) (not necessary for appellate court to determine factual issue of whether defendant received notice of intent to seek enhanced punishment because case reversed and remanded for a new trial), overruled on other grounds, State v. Williams, 977 S.W.2d 101, 106 n. 7 (1998).
Dewayne King's Individual Issues VIII
Dewayne King alleges the evidence is insufficient to support his conviction of second degree murder. When an accused challenges the sufficiency of the evidence, an appellate court's standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.Crim.App. 1990).
Once again, this appellant has failed to favor the court with adequate argument addressing the issue, citations to the record and citations to authority. See Tenn. R. App. P. 27(a), (g), (h). Although technically the issue has been waived, Tenn. R. Ct. Crim. App. 10(b), we have elected to address it because of its potentially dispositive effect as to Dewayne King.
In determining the sufficiency of the evidence, this court should not reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App. 1990). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier of fact from the evidence.Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);Farmer v. State, 574 S.W.2d 49, 51 (Tenn.Crim.App. 1978). On the contrary, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
As relevant to this case, second degree murder is "[a] knowing killing of another. . . ." Tenn. Code Ann. § 39-13-210 (1997).
In pertinent part, an individual is criminally responsible for another's conduct if "[a]cting with the intent to promote or assist the commission or the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids or attempts to aid another person to commit the offense." Tenn. Code Ann. § 39-11-402(2) (1997).
In the light most favorable to the state, the evidence demonstrates that gang signs were exchanged between the defendants and one or more of the individuals in the group of the victim and his friends. The defendants went home and got the weapons, then they went out riding around with the weapons. Although Debiasi King testified the defendants were going to their aunt's home to store the weapons, he admitted they were not going in the direction of their aunt's home when they came upon the victim and his friends the second time. When the defendants and the occupants of the Maxima encountered each other a second time, Dewayne King shot his brother Debiasi's .380 at the Maxima, and then tapped his brother Debiasi King on the shoulder. Debiasi King shot the fatal bullet from his AK-47. Later, when Dewayne King learned that the victim had died, he buried the weapons in his father's back yard.
The evidence sufficiently supports a finding that Dewayne King, by promotion of and assistance in his brother's knowing killing of Fernandos Hawkins, is criminally responsible for the crime and thereby guilty beyond a reasonable doubt of second degree murder.
IX
Dewayne King alleges that the trial court erroneously instructed the jury by interjecting information outside the pattern instructions which was favorable to the state. His entire argument is one sentence long and fails to amplify or explain his position. There is no citation to relevant authority, and the particular portion of the instruction which the defendant finds improper is not identified. The page citation to the record regarding this argument is to a portion of the transcript memorializing the charge conference during which the trial court discussed the proposed charge, not to a page containing any offensive portion of the charge actually given. The duty of this court is one of review of issues properly presented, not speculation regarding every possible variation of issues improperly presented. Dewayne King has waived our consideration of this issue. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a), (g), (h).
X
Finally, Dewayne King questions whether the trial court erroneously excluded evidence about Greg Kelsey's prior conviction of a crime involving use of a gun. Kelsey testified for the state. On cross-examination, he denied having ever possessed a gun. The defense sought to impeach him on this declaration with evidence of a robbery conviction which apparently involved the use of a gun. The court ruled that he could be asked the date of the conviction, but extrinsic evidence of his gun possession would be necessary to impeach his denial of having ever possessed a gun. The defense never presented any such evidence.
As with several previous issues, the defendant's argument on this issue is deficient in argument, citations to authority and citations to the record. Again, the issue has been waived. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a), (g), (h). We address it only briefly to assist the trial court on remand.
Evidence that Kelsey had employed a gun in an earlier crime was relevant impeachment evidence on the material issue whether Kelsey had a gun in the Maxima on June 25, 1995. See Tenn. R. Evid. 401. Impeachment of a witness by extrinsic evidence is limited in Tennessee by the collateral evidence rule.See, e.g., State v. Perkinson, 867 S.W.2d 1, 6-7 (Tenn.Crim.App. 1992). Under the rule, cross-examination of a witness about facts contradictory to the witness's testimony is the only method for bringing out "collateral" facts. Id. at 6. So-called collateral facts are those whose only relevance is to contradict in-court testimony. Id. In this case, however, the fact that Kelsey may have possessed a gun, contrary to his in-court statement, was not collateral; therefore, it was the proper subject of extrinsic proof. The trial court correctly ruled, and the defense could have presented this evidence if it had a witness or other proof to substantiate its claim.
In conclusion, we reverse and remand this matter for a new trial.
________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________ DAVID G. HAYES, JUDGE
_______________________________ JERRY L. SMITH, JUDGE