State v. Ward
| Decision Date | 17 January 2014 |
| Docket Number | No. E2011-02020-CCA-R3-CD,E2011-02020-CCA-R3-CD |
| Court | Tennessee Court of Criminal Appeals |
| Parties | STATE OF TENNESSEE v. HERBERT B. WARD |
Appeal from the Circuit Court for Blount County
No. C-18219, C-18935
vid R. Duggan, Judge
The Defendant, Herbert B. Ward, was convicted by a Blount County Circuit Court jury of especially aggravated kidnapping, aggravated kidnapping, and domestic assault. See T.C.A. §§ 39-13-305; 39-13-304; 39-13-111. He received a seventeen-year sentence for especially aggravated kidnapping, a nine-year sentence for aggravated kidnapping, and an eleven-month, twenty-nine-day sentence for domestic assault, all to be served concurrently for an effective seventeen-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to sustain his conviction for aggravated kidnapping of his wife and (2) the evidence is insufficient to sustain his conviction for especially aggravated kidnapping of his eleven-year-old daughter. The State contends that with regard to the kidnapping convictions, the trial court did not instruct the jury in accord with State v. White, 362 S.W.3d 559 (Tenn. 2012), but that the error was harmless beyond a reasonable doubt. We vacate the especially aggravated kidnapping conviction and dismiss the charge. We reverse the aggravated kidnapping conviction and remand for a new trial. We affirm the domestic assault conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated in
Part; Reversed in Part; Affirmed in Part; Case Remanded
JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
Charles A. Carpenter, Maryville, Tennessee, for the appellant, Herbert B. Ward.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Senior Counsel; Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General, for the appellee, State of Tennessee.
At the trial, Alcoa Police Officer Matt Caldwell testified that he responded to assist Officer Brett Romer with an unrelated call at Grayson Apartments around 8:00 or 8:30 p.m. on May 31, 2009. He said that while he was speaking to a person involved in the unrelated call, he noticed K.W., the Defendant's daughter, leave her apartment and move closer to him. He said she started crying "uncontrollably," ran up to him, and wrapped her arms around his leg. He said he saw the Defendant leave the breezeway of the apartment building in "an aggressive manner" and walk toward him and K.W. He stated that K.W. was upset and that as the Defendant approached, K.W. said, "Please don't let him hurt us anymore."
Officer Caldwell testified that Officer Romer stepped between K.W. and the approaching Defendant and placed his hand on the Defendant's chest to stop his advancement. Officer Caldwell said that he convinced K.W. to release his leg and that when he approached the Defendant, he immediately smelled a "very strong odor of an alcoholic beverage." He said the Defendant was yelling profanities and suggesting the officers not listen to K.W. because she was lying. He stated that the Defendant said, "Do not listen to her; she's just a lying b----." He said that the Defendant walked aggressively toward K.W. with "a blank angry stare" and that he and Officer Romer detained the Defendant by placing him in handcuffs to assess and gain control of the situation. He said he felt that he, Officer Romer, and K.W. might have been in danger because the Defendant had recently left his apartment, had not been searched, was using foul language, and was causing a disturbance.
Officer Caldwell testified that after the Defendant was detained, he walked the Defendant to his patrol car and that the Defendant kept saying, "[S]he's a lying bitch or whore." He said he asked the Defendant if he was speaking of K.W., and the Defendant responded that K.W. was his daughter but that he was talking about his wife. Officer Caldwell said that he requested another officer respond to the scene and that he stayed with the Defendant until the other officer arrived. He said that "DUI tests" were used to assess someone suspected of driving under the influence and that he used subjective criteria to determine if someone was under the influence of alcohol. He determined that the Defendant was under the influence of alcohol based on the Defendant's demeanor, language, and smell.
Officer Caldwell testified that Officer Romer interviewed the Defendant's wife. He said he spoke with K.W. and asked her what happened. K.W. told him that she was inside the apartment, that the Defendant was drinking, and that he hurt her and Ms. Ward. K.W. told Officer Caldwell that the Defendant choked and pushed Ms. Ward down while Ms. Ward was holding K.W.'s little sister and that he threatened to kill them all. K.W. said that when she attempted to leave, the Defendant threw her into the door, hurting her ribs andchest. Officer Caldwell said a female officer arrived later to inspect K.W. but did not find any physical injuries.
Officer Caldwell testified that he saw Jody Ward, the Defendant's wife and K.W.'s mother, several times during the investigation that night. He said that the first time he saw Ms. Ward, he noticed she was wearing a white t-shirt with a "stretched-out" collar with what appeared to be dried blood on the collar. He said K.W. told him that Ms. Ward would probably try to "cover" for the Defendant and that she was scared of her father. K.W. told him that the assault and kidnapping occurred throughout the afternoon and that they were not allowed to leave the apartment. Officer Caldwell stated that K.W. said the girls were having a "camp out" when the Defendant pushed Ms. Ward into the tent set up in the bedroom. K.W. told him that Ms. Ward was holding K.W.'s little sister when she was pushed down and fell into the tent, damaging part of it.
On cross-examination, Officer Caldwell testified that he did not prepare a report about the incident but that he made notes and used those to prepare for the trial. He said that he was trained in detecting if someone was under the influence of drugs or intoxicants but that he had not completed tests to determine if the Defendant was intoxicated. He said the Defendant did not endanger other persons or property because he did not have an opportunity after the officers quickly detained him. He said no injuries were found on K.W. related to the incident. Officer Caldwell said that when K.W. asked him not to let the Defendant hurt them anymore, she spoke at a normal volume but that her tone was very upset. He agreed that he was not in the apartment when the incident occurred and that he did not have any first-hand knowledge of the incident.
Officer Caldwell testified that he did not take Ms. Ward's shirt into evidence but that it was photographed. He agreed it could not be determined whether the stain was blood by looking at the photograph. He said that he observed the damaged tent when he was at the scene, that one of the poles was bent, and that the tent was collapsed. He said he observed bruising on Ms. Ward.
Alcoa Police Officer Brett Romer testified that he was responding to an unrelated call in Grayson Apartments when he first encountered K.W. and that he first saw K.W. when she grabbed Officer Caldwell's leg. He stated that K.W. was extremely distraught and that she said, "[D]on't let him hurt us anymore." He said that he saw K.W. looking at something behind him and that he turned around and saw the Defendant coming from the apartment toward him in a "fixated trance." He heard the Defendant say, He said that the Defendant was "fixated" on K.W., that he put his hand on the Defendant's chest to stop him, and that he detained the Defendant. He said Officer Caldwell took the Defendant away to separate the parties and diffuse the situation as quickly aspossible. He said that there was a strong odor of alcohol about the Defendant and that he thought K.W. was in danger.
Officer Romer testified that K.W. told him the Defendant choked Ms. Ward and pushed Ms. Ward into the tent while she was holding K.W.'s sister. K.W. told Officer Romer that the Defendant would not allow them to leave the apartment and took control of the house keys to prevent K.W. or Ms. Ward locking him outside. K.W. stated that they were not given access to a telephone and that the Defendant told Ms. Ward he would drag her out of the tent and beat her if she did not come out and talk to him. K.W. told Officer Romer that Ms. Ward cut the window screen to allow K.W. to climb out because the Defendant would not let them leave the apartment.
Officer Romer testified that he met Ms. Ward in the doorway of her apartment and that he immediately noticed red marks on the left side of her throat. He said that Ms. Ward was "extremely uncooperative" and that she wanted the Defendant to come back to the apartment to "sleep it off." He said that the only way he could get Ms. Ward to give him information about the case was to try to confirm what K.W. said. He said that her only response was, "[K.W.] would never lie," and that Ms. Ward's voice became "scratchier" as the evening progressed.
Officer Romer testified that he was at the scene for five and one-half to six and one-half hours and that when he left, he went to the magistrate's office to obtain the warrants. He said that after the warrants were issued, he returned to his office and wrote his report. He said he heard the Defendant yelling about a "paranoid schizophrenic wife or paranoid wife, or something to that effect." He said that K.W. told him the Defendant was her father and that she remained upset throughout the night. He said that he interviewed Ms. Ward the day after the incident in the interview room at the police station and that the interview was recorded.
On cross-examination, Officer Romer testified that h...
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