JEFFREY S. BIVINS, SP. J.
A jury convicted the Defendant, Norman Branch, of theft of $500 or less and intentionally evading arrest in a motor vehicle. After a hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days, to be served in the workhouse. In this direct appeal, the Defendant contends the following: (1) the trial court erred in allowing him to be impeached with twelve prior convictions; (2) the trial court erred in excluding certain of his testimony as inadmissible hearsay; (3) the evidence was not sufficient to support his evading arrest conviction; (4) the trial court provided an improper jury instruction on the evading arrest charge; (5) the trial court erred in sentencing him as a career offender; and (6) cumulative error entitles him to a new trial. Upon our thorough review of the record and applicable law, we affirm the trial court's judgments.
In January 2012, the Defendant was charged with one count of theft of property over $10,000 and one count of intentionally evading arrest in a motor vehicle. At the Defendant's ensuing jury trial, held in January 2013, the following proof was adduced:
Sarah Carter testified that, in May 2011, she lived in West Memphis, Arkansas. On May 1, 2011, however, she was visiting Memphis, Shelby County, Tennessee. That night, at about 2:00 a.m., she drove downtown in her white 2007 Hyundai Santa Fe ("the Hyundai"). Her initials were displayed on the back of the Hyundai in hot pink, and the Hyundai had Arkansas license plates. She parked in a lot and paid the attendant. She left the Hyundai locked with the windows up. The interior of the Hyundai was in "perfect" condition. She bought the Hyundai new in 2007 for $30,000.
When Carter returned to the parking lot at approximately 4:15 a.m., the Hyundai was not where she had left it. She noticed glass in the space where the Hyundai had been. She called the police to report the Hyundai stolen. She called the police a total of three times, and they responded approximately two-and-one-half hours later. She gave the police a report, and the officers decided to drive around with Carter in the back seat of their patrol car to look for the Hyundai. Carter testified:
In short order, Carter saw the Hyundai stop and someone get out of it and run. As she continued to sit in the back of the police car, an officer chased the suspect and another officer got in the Hyundai and stopped it. After the police apprehended the suspect, she recovered the Hyundai. She stated that one of the windows was "busted out." The glass from the broken window was inside of the Hyundai. Missing from the Hyundai were her "Louie Vuitton purse, digital camera, [her] ipod, Rayban sunglasses, [her] baby carrier, probably about $200 worth of Brandi makeup [she] had just bought that day, CDs[,] . . . 200 or 250 in cash and . . . [her] credit cards." She never recovered any of these items.
Officer James Knighten of the Memphis Police Department ("MPD") testified that he responded to the stolen vehicle call at approximately 6:43 a.m. on May 1, 2011, at a parking lot on Pontotoc and Fourth in Memphis. Officer Brooks was with him. Officer Knighten noticed glass fragments in the parking spot that Carter pointed out to him. He took Carter's report and put out a broadcast for the missing car. He then placed Carter in the back seat of the patrol car, and they began driving around the area, looking for the Hyundai. Officer Knighten testified,
Officers Knighten and Brooks both chased the Defendant and eventually apprehended him when they saw him trying to gain admittance into someone's residence.
Officer Knighten testified that they followed the Defendant with their lights and siren on for "like a block." The Defendant got out of Carter's car "in the driveway there." After they recovered the Hyundai, they found a key in the ignition. Carter explained to them that she kept a spare key in the console.
On cross-examination, Officer Knighten explained that "[a] crack pawn is when basically a junkie or somebody who use [sic] crack would like — would give them their vehicle just for that — just for some crack and let them I guess use it or borrow it or whatever, just give them a vehicle for crack."
Officer SirCrease Brooks of the MPD testified that he responded to the stolen vehicle call with Officer Knighten. He testified that, while they were driving around with Carter, they first encountered her car front-to-front at an intersection. When the Hyundai turned, Officer Brooks followed. Before he turned on his blue lights, he observed the Hyundai repeatedly slow and pull over and then resume its course. He thought the driver was looking for a place to jump out of the Hyundai and run. Officer Brooks called in for back-up and then turned on his blue lights. At that point, the driver of Carter's car "turned in the first little section of Foote Homes past the little playground and he jumped out of [the] car right there and the car went right up on the hill like that." Officer Brooks identified the Defendant as the person he saw jump out of Carter's car. He stated that he was two to three car lengths behind the Defendant when he turned on his lights.
The Defendant testified that, on the night in question, he was in Foote Homes celebrating the victory of the Memphis Grizzlies basketball team. He explained that, at the time, he lived in Foote Homes "on and off." At about 4:00 a.m. on May 1, 2011, he was shooting dice with two other men after they "had done drugging." He clarified that he had consumed cocaine. They were standing at the corner of Fourth and Vance when a man he knew as "Cut Butter" pulled up in the Hyundai. Cut Butter wanted some of the Defendant's cocaine. The Defendant testified, "when he seen how much I had, now he ready to make — he ready to plea bargain for the truck." The Defendant stated that he gave Cut Butter drugs in exchange for the Hyundai, which had the key in it. The Defendant took over driving the Hyundai and dropped Cut Butter off nearby. The Defendant added that, when he first saw the Hyundai, all of its windows were down. He denied that he ever looked in the back area of the Hyundai. The Defendant began driving the Hyundai around because "it was money out there to be made."
The Defendant admitted to having a long history of using crack cocaine. He also admitted to pleading guilty to nine motor vehicle burglaries between September 2001 and February 2011. He also pleaded guilty in October 2004 to theft of property between $1,000 and $10,000 and, in February 2010, to one count of criminal impersonation and one count of theft of property valued at $500 or less.
The Defendant testified about seeing the police while he was driving the Hyundai:
The Defendant added: "I had a bag full of cocaine on me." He also had a crack pipe on him.
The Defendant described the ensuing pursuit as "a high-speed chase." He heard the siren but did not stop. He stated that he slowed down or opened his door a few times because he was "fixing to jump out." He decided to jump out when he saw that he "had a nice little space on them." He began running while carrying his cocaine and the pipe in his hand. He ran up on a porch and tried to gain admittance to the apartment, but the man who answered the door would not let him in. The police then took him into custody.
On cross-examination, the Defendant admitted that he was not the owner of the Hyundai. He drove it around looking to sell drugs. He denied that any of the items that Clark testified were missing from the Hyundai were in the Hyundai while he had it. He stated that he had $100 worth of crack cocaine on him when he was arrested. He also stated that he was supposed to have the Hyundai for only an hour and then return it to Cut Butter. He admitted to having the Hyundai for about two hours. He admitted that he was driving the Hyundai around in an area "less than a minute" from the area where Clark had parked it.
On redirect examination, the Defendant explained that he tried to return the Hyundai to Cut Butter after an hour but gave Cut Butter more cocaine instead and continued to drive the Hyundai. When asked if he knew where Cut Butter got the Hyundai, he answered, "no, ma'am, what he told me but I don't know exact —."
Based on this proof, the jury convicted the Defendant of theft of property of $500 or less and intentionally evading arrest in a motor vehicle. After a subsequent hearing, the trial court sentenced the Defendant to eleven months, twenty-nine days for the theft offense and to six years for the evading arrest offense, to be served consecutively. The Defendant timely appealed and raises the following issues: whether the trial court erred in allowing the Defendant to be impeached with prior convictions; whether the trial court erred in ruling inadmissible certain testimony offered by the Defendant; whether the evidence was sufficient to support his evading arrest conviction; whether the jury instruction for intentionally evading arrest was misleading; whether his sentence is excessive; and whether cumulative error entitles the Defendant to a new trial. We will address each of these issues in turn.
Prior to trial, the State filed a notice of the Defendant's prior convictions with which it intended to impeach the Defendant should he testify. The notice set forth a total of twenty-seven prior convictions dating in reverse chronological order from February 18, 2011, to September 5, 1990. The trial court heard argument on the State's use of these prior convictions during the State's case-in-chief and determined that the State would be limited to using the most recent twelve crimes. Those crimes consisted of nine burglaries of a motor vehicle, one theft between $1,000 and $10,000, one theft of $500 or less, and one criminal impersonation. The most distant conviction date of these twelve crimes was September 26, 2001, within ten years of the Defendant's instant crimes. The Defendant argues that the trial court abused its discretion in allowing the State to use these convictions for impeachment purposes because they were too similar to one of the crimes for which the Defendant was on trial and that, therefore, the probative value of these prior convictions did not outweigh their unfair prejudicial impact.
This Court reviews for an abuse of discretion a trial court's decision about the admissibility of prior convictions for impeachment purposes.
Tennessee Rule of Evidence 609 provides that prior convictions used for impeachment purposes "must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement." Tenn. R. Evid. 609(a)(2). Moreover, in a criminal prosecution, if the witness to be impeached with prior convictions is the accused, the trial court "upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues." Tenn. R. Evid. 609(a)(3). As our supreme court has explained,
The Defendant's prior convictions for burglary of a motor vehicle and theft between $1,000 and $10,000 were all felonies and, therefore, punishable by imprisonment in excess of one year.
We also agree with the trial court that the Defendant's misdemeanor convictions of theft of $500 or less and criminal impersonation were crimes that involved dishonesty. See
The Defendant points to the trial court's statement that the Defendant's prior convictions were "almost all very, very similar to" one of the crimes for which the Defendant was being tried and the trial court's acknowledgment that
(Emphasis added). However, the trial court was referring to the potential effect if the State was allowed to impeach the Defendant with all of the Defendant's prior convictions, not merely the most recent twelve. By deciding to limit the State to using only the most recent of the Defendant's many crimes of dishonesty, the trial court was careful to balance the probative value of the Defendant's prior dishonest behavior against the potential unfair prejudice if the jury was informed about the entire extent of the Defendant's criminal history.
"[T]he fact that a prior conviction involves a similar crime for which the defendant is being tried does not automatically require its exclusion."
As set forth above, the Defendant testified that he first saw the Hyundai when Cut
Butter drove up in it and offered to "plea bargain" the Hyundai for cocaine. When the Defendant attempted to testify about what Cut Butter told him about the Hyundai, the State objected on the basis of hearsay. A jury-out hearing ensued, and the defense made an offer of proof through the Defendant. The Defendant testified that Cut Butter told him that the Hyundai belonged to his sister, who lived in Arkansas. Cut Butter told the Defendant that he had been trying to rehabilitate himself and that his family was helping him as long as he was "staying in the program trying to get things together." Cut Butter's sister provided him the Hyundai in a show of family support.
The defense argued that this testimony did not amount to hearsay because it was not offering Cut Butter's statements for the truth of the matter asserted but simply as proof of the Defendant's mens rea when he took possession of the Hyundai from Cut Butter. The trial court disagreed and ruled the testimony inadmissible. When the defense lawyer stated that she wanted to make sure that her reasons for offering the testimony were on the record, the trial court added:
The Defendant now argues that the trial court's ruling was reversible error.
Our Rules of Evidence provide that "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). Moreover, "[h]earsay is not admissible except as provided by these rules or otherwise by law." Tenn. R. Evid. 802. In this case, the Defendant wanted to testify about statements that Cut Butter made to him about the origin of the Hyundai. The Defendant, however, was not attempting to prove that the Hyundai actually belonged to Cut Butter's sister. The Defendant was attempting to prove that he did not "knowingly obtain or exercise control over . . . a motor vehicle, . . . the property of Sarah Carter, without the effective consent of Sarah Carter, with intent to deprive Sarah Carter of the said property" as charged in the indictment.
As this Court previously has recognized,
A trial court's erroneous exclusion of evidence sought to be introduced by a criminal defendant may rise to the level of a constitutional violation.
Turning to the first of these factors, the excluded statements referred to the method by which Cut Butter came into possession of the Hyundai. These statements were intended to refute the State's proof that the Defendant knew that he was stealing the Hyundai. However, the Defendant also testified that he gave Cut Butter drugs in order to use the Hyundai for a while. That is, the Defendant testified that he, in effect, rented the Hyundai from the person in possession of it. The Defendant's testimony on this point was to the same purpose as the excluded testimony: that the Defendant did not have the requisite mens rea for theft when he took possession of the Hyundai. The Defendant's admitted testimony to this effect rendered less than critical Cut Butter's excluded explanation of how he, Cut Butter, came to be in possession of the Hyundai.
As to the second factor, the excluded testimony was the Defendant's own. The jury clearly rejected the Defendant's version of events, thereby indicating that the jury found the Defendant to be a less than fully credible witness. Accordingly, we conclude that the excluded evidence bore little indicia of reliability.
As to the third factor, we have held that the trial court erred in excluding the Defendant's testimony about what Cut Butter told him about the Hyundai. Thus, this factor weighs in favor of the Defendant. Nevertheless, taking the other two factors into account, we hold that the trial court's erroneous exclusion of the Defendant's testimony did not violate the Defendant's constitutional right to present a defense. The Defendant testified that he exchanged some drugs for time driving the Hyundai. He denied knowing that the Hyundai was stolen at the time he negotiated his deal with Cut Butter. This proof provided the jury with an alternative theory for how the Defendant came into possession of the Hyundai, a theory that contradicted the State's theory of theft. The jury chose to reject the Defendant's theory of how he came into possession of the Hyundai, a choice that was in the jury's sole prerogative. We are convinced that the jury's verdict would have been the same had the excluded testimony been admitted. Therefore, we hold that the Defendant is entitled to no relief on the basis of the trial court's evidentiary ruling on this point.
The Defendant contends that the proof at trial was not sufficient to support his conviction of intentionally evading arrest in a motor vehicle. The State disagrees.
Our standard of review regarding sufficiency of the evidence is "whether, after viewing 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."
The appellate court does not weigh the evidence anew; rather, "a jury verdict, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts" in the testimony and all reasonably drawn inferences in favor of the State.
"Questions concerning the credibility of witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact."
Tennessee Code Annotated section 39-16-603(b)(1) provides that "it is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any signal from the officer to bring the vehicle to a stop." Tenn. Code Ann. § 39-16-603(b)(1) (2010). The Defendant contends that, when the police signaled him with their blue lights, he immediately turned into a driveway and abandoned the Hyundai. The Defendant asserts that a driveway is not a proscribed locale in the statute and that the only fleeing that took place was on foot, rendering him "only subject to conviction for misdemeanor evading arrest." The State disagrees.
As set forth above, Officer Knighten testified that he and Officer Brooks followed the Defendant for about one block after the blue lights were turned on. Moreover, the Defendant himself testified that he continued to drive away from the police after he heard the siren. This proof is more than sufficient to support the Defendant's conviction. Accordingly, the Defendant is entitled to no relief on this basis.
The Defendant also takes issue with the trial court's instructions to the jury on the offense of intentionally evading arrest in a motor vehicle. As to this offense, the trial court charged the jury as follows:
The Defendant argues that this instruction "fail[ed] to specify that the jury must find beyond a reasonable doubt that the flight occurred in the motor vehicle."
The Defendant did not raise this issue in his motion for new trial. Accordingly, this issue is waived.
We hold that the trial court's jury instruction did not breach a clear and unequivocal rule of law. Indeed, the Defendant acknowledges that the trial court's instruction is virtually identical to that suggested in the Tennessee Criminal Pattern Jury Instructions.
On January 3, 2013, the State filed a "notice of enhancement and impeachment" in which it gave "notice that the Defendant should be sentenced as a Multiple Offender, a Persistent Offender or Career Offender, as applicable, pursuant to Tenn. Code Ann. §§ 40-35-106, 107 and 108, respectively" ("the Notice"). Included with the Notice was a list of twenty-seven prior convictions. The Defendant's trial was held on January 7-9, 2013. The record before us reflects no mention of the Notice by defense counsel at the beginning of the Defendant's trial. The day before the Defendant's sentencing hearing, the State filed its notice of intent to seek enhanced punishment and designated the Defendant's sentencing range as "career offender." Included with this pleading was a list of thirty-nine prior convictions, including sixteen felonies, Classes C, D, and E, and twenty-three misdemeanors.
At the Defendant's sentencing hearing, defense counsel contended that the Notice was both untimely and defective and that, accordingly, the trial court should sentence the Defendant as a Range I offender instead of as a maximum Range III career offender. The prosecutor responded that the issue was waived because the defense did not seek a continuance of the trial. The trial court asked for further clarification from defense counsel, and she responded that the Notice was deficient because it did not "state which range of punishment the State [was] seeking." The trial court then stated the following:
The trial court ruled that the Notice was sufficient.
The trial court then sentenced the Defendant as a career offender to six years for the evading arrest conviction and to eleven-months, twenty-nine days for the theft conviction. The trial court ordered the Defendant to serve his sentences consecutively on the basis of two criteria: he was a professional criminal who had knowingly devoted his life to criminal acts as a major source of livelihood, and he was an offender whose record of criminal activity is extensive. The Defendant now renews his complaints about the Notice and argues that the trial court should have sentenced him as a Range I offender.
Tennessee Code Annotated section 40-35-202 provides as follows:
Tenn. Code Ann. § 40-35-202(a) (2010) (emphasis added). Our Rules of Criminal Procedure further provide that, if this notice is untimely, "the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial." Tenn. R. Crim. P. 12.3(a). A defendant's failure to request a continuance results in a waiver of the untimeliness of the notice. See
As our supreme court has explained,
In this case, the Defendant complains that "[t]he [N]otice was defective because it failed to notify [him] of which range of punishment it would seek." While we agree that the State should have specified the Defendant's offender status in the Notice, the record makes clear that the Defendant was well aware prior to trial that, if he was convicted, he was subject to being sentenced as a career offender. Moreover, because the Notice specified twenty-seven of the Defendant's prior convictions, defense counsel would have been able to ascertain the Defendant's offender status.
Finally, the Defendant asserts that he is entitled to relief on the basis of cumulative error. As our supreme court has explained,
We have determined that the trial court erred in refusing to permit the Defendant to testify about what Cut Butter told him about the Hyundai. However, we have determined that error to have been harmless. We have determined that the Defendant's other allegations of error are without merit. Accordingly, the Defendant is not entitled to relief on the basis of cumulative error.
For the reasons set forth above, we affirm the Defendant's convictions.
