Opinion
No. M2000-00495-CCA-R3-CD.
Filed June 29, 2001. March 13, 2001 Session.
Direct Appeal from the Criminal Court for Davidson County No. 98-C-2345 J. Randall Wyatt, Jr., Judge.
Reversed and Remanded
Karl F. Dean, District Public Defender; Wendy S. Tucker (at trial) and Jeffrey A. DeVasher (on appeal), Assistant Public Defenders, for the Appellant, Aaron James.
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Jennifer L. Smith, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Bret Thomas Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which John Everett Williams, J., joined and James Curwood Witt, Jr., J., concurred by separate opinion.
OPINION
The Appellant, Aaron James, appeals his convictions for aggravated robbery and especially aggravated kidnapping, which were committed during his failed attempt to escape confinement at the Riverbend Maximum Security Institution in Nashville. At the time of these offenses, the Appellant was serving an effective sentence of fifty years resulting from prior Shelby County convictions. In this appeal, the Appellant contends that (1) the evidence is insufficient to support his aggravated robbery and especially aggravated kidnapping convictions; (2) the trial court erred in allowing the State to systematically remove African-American jurors from the jury in violation of Batson v. Kentucky; and (3) the trial court erred by failing to grant his motion to remove all references to his prior convictions; two of the three prior convictions being similar or identical to the offenses for which he was currently standing trial. After review, we conclude that reversible error occurred in the admission of the Appellant's prior convictions in the case before us. In view of this holding, we find it unnecessary to address the Appellant's remaining issues of sufficiency of the evidence and Batson violation. The Appellant's judgments of convictions for aggravated robbery and especially aggravated kidnapping are reversed and the case is remanded for a new trial for both offenses.
No appeal was taken by the Appellant from his Class A misdemeanor conviction for attempted felony escape.
Facts
On March 2, 1998, Anna Blythe, an employee of the Tennessee Department of Correction, was delivering food and supplies to Riverbend Maximum Security Institution, a prison facility in Nashville. As she parked and exited her delivery truck at one of the units inside the perimeter of the prison, she heard a fence "rattle" and then observed an inmate, later identified as Tony Bobo, climbing over the fence. She also observed the Appellant, who was still inside the fence. The two inmates had cut holes in their exercise cages in order to reach this fence. At this time, Bobo, armed with a homemade prison knife, grabbed Ms. Blythe, and placed the knife to her neck. Bobo then took her keys to the truck, opened the driver's side door, and ordered her to get inside. By this time, the Appellant had scaled the nearby fence and climbed into the passenger side of the truck. Bobo then pushed Ms. Blythe into the middle of the truck seat, with the knife still to her head, and positioned himself in the driver's seat.
After commandeering the truck, Bobo accelerated and headed toward the perimeter fence. The inmates' attempt at freedom was short-lived as the truck was unable to penetrate the fence. After a second collision with the fence, Ms. Blythe heard thumping noises and then saw a bullet hole in the windshield. Realizing that the delivery truck was being fired upon by correctional officers, Ms. Blythe dropped to the floorboard. At that time, the Appellant convinced Bobo to give up and Bobo instructed the Appellant to let Ms. Blythe out of the truck. Ms. Blythe ran from the truck to the nearest officer and the inmates surrendered to authorities.
On the morning of trial, Bobo, who was jointly indicted with the Appellant, entered guilty pleas to especially aggravated kidnapping, aggravated robbery and attempted escape. At trial, the Appellant testified that he and Bobo planned the escape but the plan did not include robbery and kidnapping. The Appellant further testified that once the delivery truck was seized, he wanted to abandon the escape but was threatened by Bobo if he did so. Bobo, testifying for the Appellant, confirmed the Appellant's testimony, stating that he threatened harm to the Appellant after the Appellant told him that he was going to abandon the escape. Based upon the proof presented at trial, the jury found the Appellant guilty of especially aggravated kidnapping, aggravated robbery and attempted escape.
Analysis
At the Appellant's trial for attempted escape, aggravated robbery, and especially aggravated kidnapping of the prison employee, the deputy warden of Riverbend testified, over objection, that, on the date of the attempted escape, the Appellant was serving sentences for especially aggravated robbery, second-degree murder, and especially aggravated kidnapping. The Appellant contends that the trial court erred in permitting the State to introduce into evidence the specific crimes for which the Appellant was incarcerated. Relying upon State v. Wingard, 891 S.W.2d 628 (Tenn.Crim.App. 1994), the State responds that proof of the convictions which resulted in the Appellant's institutional confinement constitutes an essential element of the offense of felony escape and, as such, admission of the Appellant's prior offenses were proper. Wingard, 891 S.W.2d at 633.
Felony escape is defined as follows:
(a) It is unlawful for any person arrested or charged with or convicted of an offense to escape from a penal institution as defined in § 39-16-601.
(B) A violation of this section is:
* * *
(2) A Class E felony if the person was being held for a felony.
Tenn. Code Ann. § 39-16-605(a)(b)(2) (1997).
Prior to trial, the Appellant filed a motion to strike any reference to his prior convictions set forth in the indictment for attempted escape. The Appellant asserted that the specific nature of the convictions are irrelevant. This position, although conflicting with Wingard, is supported by this court's holding inState v. Culp, 891 S.W.2d 232 (Tenn.Crim.App. 1994). In Culp, this court held:
Although the grand jury true-billed the appellant and used details as to the type of felony under which he was in custody when he escaped, this language, in our opinion, was surplusage. The trial judge did not have to instruct as to all of these details. The state only had to prove that the appellant escaped from lawful custody while being held for a felony. It was not necessary for the name of the felony to be alleged, instructed, or proven.
Id. at 236. We agree with this court's holding in Culp. As observed in Culp, "[t]he state only had to prove that the appellant escaped from lawful custody while being held for a felony." Id. at 236. In this regard, we note that within the Appellant's pre-trial motion was the request that the convictions of especially aggravated robbery, second-degree murder, and especially aggravated kidnapping be stricken and replaced with the language, "having been lawfully confined in the Tennessee Department of Corrections (sic)." In addition to arguing that the specific felony convictions were irrelevant, the Appellant also argued that the prior convictions were inadmissible under Rule 403 of the Tennessee Rules of Evidence, as their probative value was outweighed by the obvious prejudicial effect. In support of this argument, the Appellant points out that two of the three convictions for which the Appellant was standing trial were virtually identical to two of the convictions for which the Appellant was confined.
In the recent case of Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997), a case analogous to the instant case, the defendant was charged with assault with a dangerous weapon and possession of a firearm by a convicted felon. See 18 U.S.C.A. § 922(g)(1) (anyone convicted of crime requiring confinement of 1 year cannot lawfully carry weapon). Prior to trial, the defendant offered to stipulate to the prior conviction element of the firearm offense, arguing that introduction of the name and nature of his prior offense was so similar to the offense for which he was being tried as to constitute prejudice under Rule 403, Federal Rules of Evidence. The Government refused to join the stipulation, and the district court agreed that the Government should not be required to do so. The Supreme Court held that a defendant should be permitted to stipulate a prior conviction, without identifying the conviction, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations and when the purpose of the evidence is solely to prove the element of the prior conviction. Old Chief, 517 U.S. at 179-192. In so holding, the Court reasoned:
There can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice whenever the official record would be arresting enough to lure a juror into a sequence of bad character reasoning . . . Thus Rule 403 requires that the relative probative value of prior conviction evidence be balanced against its prejudicial risk of misuse.[] A judge should balance these factors, not only for the item in question, but also for any actual available substitute.
The court, in Wingard concluded that because the prior conviction was an essential element of the offense of escape, its admission was, thus, subject to character evidence analysis under Rule 404(b) Tenn. R. Evid. Wingard, 891 S.W.2d at 633, 635. In this regard, we note, however, that in Old Chief, the Supreme Court found the prior offense relevant as an element of the offense and, thus, admissible under Rule 402, Fed.R.Evid. Finding the evidence relevant, the Supreme Court reviewed its admission under the "danger of unfair prejudice" test of Rule 403, as opposed to Wingard's analysis under 404(b).
[T]he Government invokes the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice. . . . This is unquestionably true as a general matter. . . . This recognition that the prosecution, with its burden of persuasion, needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant's legal status dependent on some judgment rendered wholly independent of the concrete events of later criminal behavior charged against him.
Old Chief, 519 U.S. at 180-187, 117 S.Ct. at 650-653.
Admission of the prior conviction in Old Chief is more compelling for admission than is the prior conviction in the case before us as the underlying conviction in Old Chief was an essential element of the offense whereas in the present case, it is not. We acknowledge that the Supreme Court's holding in Old Chief was premised upon an evidentiary ruling and, thus, is not binding upon a state court. Nonetheless, we cannot ignore the fact that the ruling construed application of Rule 403, Fed.R.Evid., which is identical to Rule 403, Tenn. R. Evid., and, as such, we find the ruling to provide persuasive authority for the case before us.
Violation of an evidentiary rule does not necessarily mandate reversal of the case, see State v. Martin, 964 S.W.2d 564, 568 (Tenn. 1998), but is subject to harmless error analysis. "No judgment of conviction shall be reversed on appeal except for errors which affirmatively appear to have affected the result of the trial on the merits." Rule 52(a), Tenn. Crim. P. The Appellant was convicted in this case under a theory of criminal responsibility based upon the conduct of the co-defendant, Bobo. The record reveals that during the course of the robbery and kidnapping offenses, the Appellant was never in the possession of a weapon, never made any threats or attempts to assault or harm the victim, and his role in the taking of the delivery truck was relegated to that of a passenger. The proof does establish that the Appellant was present and in a position to aid and assist his co-defendant during the commission of the offenses and, if successful, would have benefitted in the results. See Tenn. Code Ann. § 39-11-402(2). Examination of the convicting evidence leads us to the conclusion that the proof against the Appellant for the convictions on appeal, although sufficient, was less than overwhelming. As such, we are unable to conclude that the highly prejudicial admission of the Appellant's prior convictions did not materially affect the verdict. Accordingly, we find the error not to be harmless. But see, e.g., United States v. Rooks, 181 F.3d 105 (6th Cir. 1999) (District Court abused its discretion when admitting full judgment of defendant's prior conviction for purpose of showing status as a felon, but error harmless given overwhelming evidence); Myers v. United States, 198 F.3d 615 (6th Cir. 1999) (District Court erred in rejecting defendant's offer to stipulate to fact of prior felony conviction, but error harmless in light of fact that proof clearly established defendant's guilt); United States v. Snyder, 166 F.3d 1216 (6th Cir. 1998) (Although it was error when court allowed prosecutor to reject defendant's offer to stipulate to status as felon, error harmless in lieu of witness testimony at trial). The judgments of conviction are reversed and the cause is remanded for a new trial.
For purposes of affording guidance to litigants and trial judges who, in the future, may find themselves situated similarly to the parties and the trial court in the present case, I believe this court should have analyzed the prior-crime issue by dichotomizing it into separate parts, namely, (1) the litany of prior crimes set forth within the escape count of the indictment and (2) the state-sponsored testimony about these prior crimes. I believe that both of these different sources of information merit different judicial responses. In an appropriate case, the form of the response to the indictment language may well dictate the response to the testimony.
The majority utilizes Tennessee Rule of Evidence 403 to hold that the "evidence" of the prior crimes — specifically, testimony offered by a prosecution witness — injected into the trial unfairly prejudicial information about the defendant's prior crimes. See Tenn. R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .) (emphasis added). I agree with the majority that this evidence of the defendant's prior crimes should have been excluded. The testimony was unfairly prejudicial because the prior crimes were markedly similar to the crimes on trial.
In analyzing the effect of this error, however, we should take account of the fact that the jury had already been informed of the defendant's prior crimes before the testimony was offered. The prior crimes were listed in the escape count of the indictment, and the listing was communicated to the jury through the reading of the indictment. Because the escape count, with the prior-crime listing, remained viable in this joint prosecution of separate charges, the jury was aware of the prejudicial information before it heard testimony about the prior crimes. We should take account of this reality when considering the subsequent evidentiary error.
Of course, this analysis only begs the question of whether, via contents of the escape count of the indictment, the improper information should have been inserted into the trial in the first place. In the present case, I believe that, because the defendant failed to move pretrial for severance of offenses, he came perilously close to waiving any complaint about the presence of the escape count of the indictment.
Certainly, in the beginning of the case, the escape charge was properly joined with the other charges. See Tenn. R. Crim. P. 8(a) (mandating joinder when two or more offenses "are based upon the same conduct or arise from the same criminal episode"). Even mandatorily joined offenses, however, shall be severed when "appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." Tenn. R. Crim. P. 14(b)(2). I believe that a motion to sever should have been regarded favorably by the trial court. The escape charge's mention of the prior crimes of especially aggravated kidnapping, especially aggravated robbery, and second degree murder, when joined with the current charges of especially aggravated kidnapping and aggravated robbery, signals a court that a severance is appropriate to promote a fair determination of guilt or innocence on the latter two counts. Thus, the terms of the escape count and the joinder of this count with the other counts presented a severance issue pursuant to Rule 14(b)(2).
Although the defendant moved to "amend" the escape count of the indictment and moved to sever the trial of the defendant from defendant Bobo, he failed to move the court for a severance of offenses. Rule 14(a) is clear: "A defendant's motion for severance of offenses . . . must be made before trial" when the ground therefor is then known to the aggrieved party. " Severance is waived if the motion is not made at the appropriate time." Tenn. R. Crim. P. 14(a) (emphasis added).
Moreover, I believe that Rule 14's severance provision is a proper and sufficient mechanism for protecting the defendant's rights. Courts in Tennessee have often said that indictment terms are not "evidence." See State v. Miller, 674 S.W.2d 279, 284 (Tenn. 1984); State v. Lutry, 938 S.W.2d 431, 434 (Tenn.Crim.App. 1996); State v. Bordis, 905 S.W.2d 214, 232 (Tenn.Crim.App. 1995). The Rules of Evidence axiomatically apply to evidence. Specifically, Rule 403 is a rule of the exclusion of "evidence." Tenn. R. Evid. 403. Undoubtedly, due process notions of fair play would govern the state's use of improper — but non-evidentiary — information, see generally Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965), but I fail to see any basis for using the Rules of Evidence per se for this purpose. There is no need to do so when the threshold for enthetic information is a count in a multi-count indictment and Rule 14 provides a roadmap for preventing prejudice through severance of offenses.
So, the problem with the content of the escape count is initially and essentially a severance issue, and the defendant failed to move for a severance of the escape count from the aggravated robbery and especially aggravated kidnapping counts. Per customary and usual practice, the joined indictment counts were read to the jury. See Caruthers' History of a Lawsuit, § 681 , at 666 (Sam B. Gilreath ed., 6th ed. 1937) ("The attorney general first reads the indictment.") The jury was thus informed about the prior crimes. Were we to treat the failure to move for severance as a waiver of the indictment language being inserted into the case, the error of allowing the subsequent testimony about the prior crimes would have been harmless.
Notwithstanding the plausibility of this result, I have chosen to concur with the majority. I conclude that it would be unfair to impose a waiver sanction upon the defendant because he did not specifically move for a severance of offenses in this case. He did attack the use of the escape count as constituted by essentially asking the court to redact from the language the reference to the prior crimes. Through this mechanism, the trial court was called upon to review the fairness of using an escape count that referred to the defendant's prior crimes. As a matter of a general due process notion of fairness, I believe the trial court should have taken steps to prevent the jury learning of the defendant's prior crimes through the use of the current escape count, but as a practical matter, a meritorious motion to sever could well have been countered by the state amending the escape count to delete the prior crime listing.
All in all, the facts do not compel resolving this important issue on the basis of waiver. Thus, the Rule 403 error of allowing the testimonial evidence of the prior crimes remains prejudicial and reversible because the defendant is in a position to assert that the indictment listing of the prior crimes should not have been before the jury in the first place.
I would nevertheless caution counsel representing defendants in similar circumstances in the future, as well as trial courts entertaining such cases, to give due regard to the severance provisions of Rule 14.