State v. Smith, No. W2013-01190-CCA-R3-CD

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtROBERT W. WEDEMEYER, JUDGE
Docket NumberNo. W2013-01190-CCA-R3-CD
Decision Date13 August 2014


No. W2013-01190-CCA-R3-CD


March 4, 2014 Session
August 13, 2014

Appeal from the Criminal Court for Shelby County
No. 10-06590
James M. Lammey, Jr., Judge

A Shelby County jury found the Defendant, Michael Smith, guilty of aggravated assault and evading arrest. The trial court sentenced the Defendant to ten years for the aggravated assault conviction and eleven months and twenty-nine days for the evading arrest conviction. The trial court ordered the sentences to run consecutively. The Defendant asserts that: (1) the trial court committed plain error by failing to compel an election in count one; (2) the indictment for aggravated assault fails to state an offense; (3) the trial court improperly allowed the victim to testify about the Defendant's prior bad acts; (4) the trial court improperly denied the Defendant's request for a mistrial after the State explored the Defendant's conviction and defense in an unrelated case; (5) the trial court committed plain error when it failed to compel the State to provide the trial court an audio recording of the victim's statement; (6) the trial court improperly instructed the jury on flight; (7) the trial court improperly ruled that the Defendant's prior convictions could be used for impeachment purposes should he testify at trial; (8) the evidence is insufficient to sustain his conviction for evading arrest; (9) the trial court abused its discretion when it denied the Defendant's request to sit at counsel table; and (10) his sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN EVERETT WILLIAMS, JJ., joined.

Lance R. Chism Memphis, Tennessee (on appeal) and Randall Rhea Memphis, Tennessee (at trial) for the appellant, Michael Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District

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Attorney General, for the appellee, State of Tennessee.

I. Facts

This case arises from the Defendant's pursuit of the victim on July 20 and 21, 2010, in violation of an order of protection protecting the victim from the Defendant. As a result, a Shelby County grand jury indicted the Defendant for aggravated assault for violating the order of protection, evading arrest, and resisting official detention.

At a trial on these charges, the parties presented the following evidence: Jonathan Gross, a Memphis Police Department officer, testified that he reported to a residential address on Somerset in Memphis, Tennessee, during the early morning hours of July 21, 2010. When he arrived, he observed a white male in the back yard of a house attempting to run through brush and "jump down onto North Parkway." Officer Gross said that police officers were already on the scene and ordering the Defendant to stop. The Defendant fled from the officers, running "back northbound through the brush" and "towards Somerset from North Parkway." Officer Gross returned to his squad car and drove toward the area where he saw the Defendant fleeing. By the time Officer Gross located the Defendant, the Defendant was already in police custody. Officer Gross noted that the Defendant's legs were cut, the result of what he assumed was the Defendant's flight through the brush. Officer Gross estimated that more than six officers participated in apprehending the Defendant and that the total pursuit of the Defendant lasted approximately ten minutes.

Andrew Bishop, a Memphis Police Department officer, testified that, on July 21, 2010, he responded to a request for back-up officers needed to set up a perimeter due to a fleeing suspect who was thought to be involved in a domestic disturbance. He described the location of the scene as "at Somerset near Watkins." Officer Bishop said that he was positioned on the upper portion of a ramp that goes over North Parkway. From this position, he observed the Defendant running from police "inside the thicket." Officer Bishop said that the Defendant was approximately twenty-five yards from the residence where the complaint originated on Somerset. When the Defendant saw Officer Bishop and several other officers, he stopped running and "started to double back." Officer Bishop said that the officers creating the perimeter started to move in to close the circle and apprehend the Defendant. The Defendant broke through the perimeter and fled through a neighborhood area. Over the police radio, Officer Bishop learned that the Defendant had "doubled back" and was again headed toward him and Officer Gerard. Officer Bishop said that Officer Gerard grabbed the Defendant, who attempted to "spin away" from the officer. Officer Gerard wrestled the

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Defendant to the ground, and Officer Bishop assisted in taking the Defendant into custody.

Officer Bishop recalled that after the Defendant was apprehended he complained of chest pain and was transported to a hospital for treatment. Officer Bishop estimated that the "foot chase" lasted approximately five to ten minutes.

Kimberly Chrestman, the victim, testified that she began dating the Defendant in 2008 and that she could not recall when the relationship ended. The victim recalled the events that led up to the Defendant's arrest on July 21, 2010, saying that, on July 20, 2010, she was at home in Olive Branch, Mississippi, where she lived with the Defendant. She said that she planned to go to her mother's house to bake a cake. The Defendant, however, did not want the victim to leave the house. The victim described the Defendant as "controll[ing] ever[y] aspect of everything [she] did." She and the Defendant argued over her going to her mother's house. She said that the Defendant "smash[ed]" her against the door to prevent her exit and took her car keys. During their physical altercation, the Defendant kicked a bucket of paint over in the kitchen. The Defendant eventually agreed to drive the victim, in her car, to her mother's house. The victim recalled that the Defendant told her she could not drive because she had "lost [her] privileges."

The victim testified that, when she was ready to leave her mother's house that night, she did not want to return to the Defendant, so she asked a friend for a ride to another friend's house in Midtown in Memphis, Tennessee. The victim said that she, her friend Shannon, a friend of Shannon's, and Shannon's parents were all at the house in Midtown. She recalled being in the "computer room" when she heard "rocks crunching" in the flower bed outside. She stated that she knew that it was the Defendant because he had "stalked" her before. She said that, upon hearing the noise, she was "[t]errified," but her friends told her not to "be paranoid" because "no one" knew she was at the house.

The victim walked over to the window in the room and opened the blinds and saw the Defendant looking back at her. In response, the victim screamed and "freaked completely out." She said that she called the police and remained inside the house until she believed the Defendant had left. A friend of Shannon's then drove the victim to "Paul's house" on Somerset because the victim was certain the Defendant would return. At "Paul's house" the victim began to relay to Paul what had occurred. As she spoke, she noticed movement out of the corner of her eye and looked up at a window in the front door of the home and saw the Defendant. The victim stated that she felt "terrified" and described the experience as "a walking nightmare." She again called the police seeking help. Soon after she had placed the call she heard "tires screeching" in the driveway, and the Defendant fled. The victim said that "tons" of police pursued the Defendant and ultimately apprehended him that day.

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On cross-examination, the victim testified that she did not recall the times of these events. She said she went to her mother's on the night of July 20, 2010, and then on to Shannon's house that same night. It was early on the following morning, July 21, 2010, that she went to Paul's house on Somerset. She agreed that the police never came to Shannon's house although she had called the police for help. The victim denied any knowledge of a restraining order protecting her from the Defendant in July 2010. She further denied ever telling Mr. Bailey, who represented the Defendant at one point, that she had called the police alleging that the Defendant had assaulted her so that the police would take the Defendant away so that she could use drugs.

The victim testified that she did not recall pleading guilty to passing bad checks in 2003, but deferred to the document upon which defense counsel was relying in reference to her criminal history. The victim agreed that she had pled guilty to theft under $500 on October 24, 2006. The victim agreed that she went to see the Defendant in jail on October 5, 2010. She explained that she went to see the Defendant in jail to retrieve the keys to a Chevy Blazer.

The State then read the following stipulation into the...

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