State vs. Gregory Lynn Hill
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 22, 2009
STATE OF TENNESSEE v. GREGORY LYNN HILL
Appeal from the Criminal Court for Knox County
No. 87625
Mary Beth Leibowitz, Judge
No. E2008-02521-CCA-R3-CD - Filed November 6, 2009
The defendant, Gregory Lynn Hill, appeals his Knox County Criminal Court convictions of two
counts of aggravated assault and his resulting sentences. The defendant challenges the sufficiency
of the convicting evidence. The defendant also avers that the trial court erred by denying his motion
for a mistrial because the State’s witnesses violated the rule of sequestration. See Tenn. R. Evid.
615. Further, the defendant argues that the trial court erred by denying his request for a jury
instruction regarding defense of a third person and in sustaining the prosecution’s objection to the
testimony of defense witness Martin Hill as to the violent characteristics of one of the victims. As
for the defendant’s consecutive eight-year sentences, the defendant alleges that the trial court erred
by improperly evaluating the enhancement and mitigating factors and by improperly imposing
consecutive rather than concurrent sentences. Discerning no error, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and D. KELLY THOMAS, JR., JJ., joined.
Bruce E. Poston, Knoxville, Tennessee (on appeal) and John Boucher, Knoxville, Tennessee (at trial)
for the appellant, Gregory Lynn Hill.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Jason Hunnicutt, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On August 27, 2007, a Knox County grand jury indicted the defendant for four counts
of aggravated assault. Counts 1 and 3 alleged that the defendant caused serious bodily injury to
victims Rodney Jones and Andrew Veals, respectively, see T.C.A. § 39-13-102(a)(1)(A) (2006), and
counts 2 and 4 alleged that he assaulted the victims respectively by use or display of a deadly
weapon, to wit, a baseball bat, see id. § 39-13-102(a)(1)(B). After a two-day trial, a Knox County
Criminal Court jury convicted the defendant of aggravated assault in counts 2, 3, and 4 as charged,
and it convicted the defendant of the lesser-included offense of felony reckless endangerment in
count 1. The trial court merged the verdicts for counts 1 and 2 and counts 3 and 4, respectively, and
ordered the defendant to serve two consecutive eight-year sentences in the Tennessee Department
of Correction.
Trial
At trial, victim Andrew Veals testified that on March 13, 2007, he played in a dart
league at a bar named Brownie’s on Martin Mill Pike in Knoxville, Tennessee. Mr. Veals testified
that he and his wife regularly visited that bar and that he had been frequenting Brownie’s for
between five and seven years.
Mr. Veals testified that on March 13 he arrived at the bar between 6:30 and 7:00 p.m.
and that his wife, who also played in the dart league, drove separately. He said that, after the dart
tournament ended, everybody in the league “scattered.” Mr. Veals stated that his wife left between
9:00 and 10:00 p.m., about five minutes before he left the bar. Mr. Veals testified that others present
at Brownie’s at that time included Rodney Jones, Pat Reed, Steve Manning, bar owner Jerry Brown,
and bartender Donna Tilson.
As Mr. Veals was leaving Brownie’s via the front door, he walked onto a large flat
stoop extending from the exterior of the building and noticed Ms. Tilson’s vehicle backed up very
close to the stoop. He also observed an unfamiliar black car near a dumpster with its engine running.
He testified that the car “took off” once he stepped out the door. Mr. Veals noticed a man “layin’
over . . . in [Ms. Tilson’s] car goin’ through it” with his feet hanging out the driver’s side. He
explained that the regular patrons of Brownie’s had been experiencing constant car burglaries in
early 2007, so he then said to the patrons of the bar, “Well, here he is right now, man. He’s in
Donna’s car right now.” Mr. Veals stated that Mr. Jones walked out the door after him. Mr. Veals
walked around to the front of the vehicle while Mr. Jones walked to the back. Mr. Veals also
testified that Ms. Reed and Mr. Manning stepped outside the bar. He maintained that he did not
threaten the man in any way and that he did not pull him out of the vehicle. He identified the man
in the vehicle as the defendant.
Mr. Veals testified that, once the defendant was alerted to Mr. Veals and Mr. Jones’s
presence, he exited the vehicle. Mr. Veals stated that the defendant wore latex gloves and wielded
a “little leaguer’s” aluminum baseball bat. He said, “[B]y the time I got to the front of [the car], he
took a ball bat and just . . . busted me right in the side of the head.” Mr. Veals explained that the
defendant’s striking him “jarred” him, “knocked [him] out,” and “rattled [his] brain.” He testified
that he then fell to the back of the vehicle, where he could see the defendant hitting Mr. Jones. Mr.
Veals testified that he then went back inside Brownie’s where he lay unconscious by a pool table.
He stated that the whole incident occurred in “just seconds.”
Mr. Veals testified that, after he regained consciousness, the police came by the bar.
He stated that his wife drove both him and Mr. Jones to the hospital. He explained that his head
“looked like [he] was wearing a cantaloupe.” He stated that the defendant’s striking him did not
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“break the skin” but that his head swelled heavily. Mr. Veals testified that at the hospital, the staff
monitored him for “concussions and all that and everything else.” He further testified that since the
incident he had seen a doctor four or five times to treat recurring headaches and to monitor the
injury.
Mr. Veals filed a police report and spoke with Investigator A.J. Leoffler at Brownie’s
approximately three days later. The officer presented him with a photographic lineup from which
Mr. Veals successfully identified the defendant. Mr. Veals maintained that he only drank three or
four beers the night of the incident, and he explained, “[W]e was throwin’ in a league, and . . . you
don’t get drunk.”
On cross-examination, Mr. Veals admitted that he did not know whether the
defendant had permission to be in the vehicle. He admitted that he yelled at the defendant because
he “wanted to catch him from breakin’ in [Ms. Tilson’s] car.” He maintained that he never
threatened the defendant, however.
Defense counsel asked whether Mr. Veals was “still aggressive” at the hospital and
had to be restrained by hospital security. Mr. Veals explained that he suffered from a previous,
unrelated rib injury and that, when hospital staff placed a neck brace on him it inflamed the
preexisting injury. He said that hospital staff “threatened to . . . strap [him] if [he] did not wear that
neck brace,” so he left the hospital. The hospital staff then called Mr. Veals and promised not to use
the neck brace, and he returned.
Rodney Jones testified that he and Mr. Veals had known each other between seven
and 10 years. He said that he played in a pool league and a dart league at Brownie’s and that he
visited the bar approximately three times a week. He testified that he played in the dart league with
Mr. Veals on March 13, 2007, and that the game ended at 9:00 or 9:15 p.m. Mr. Jones testified that
he did not drink when playing darts, but that he had some beers after the game. He said, “[Mr.
Veals] and I were sittin’ there just foolin’ around, and we decided to go outside and smoke a
cigarette.” When the men exited the bar, they observed the defendant “leanin’ across the front
seat–the front–the driver’s door was open.” Mr. Jones said that the defendant was “goin’ through
the glove box with white . . . latex rubber gloves on.” He recalled Mr. Veals then saying, “[T]here
he is in that car.” Mr. Jones explained that during the previous six months patrons of Brownie’s had
$15,000 to $30,000 worth of property stolen from their cars. He also stated that he saw a black
Grand Am in the parking lot.
Mr. Jones testified that the defendant then exited the vehicle and that his elbow hit
the car’s horn. He testified that as soon as Mr. Veals walked to the front of the vehicle, the
defendant hit him with a baseball bat. When asked whether Mr. Veals threatened the defendant, Mr.
Jones said, “He didn’t have time to threaten [the defendant].” After the defendant struck Mr. Veals,
Mr. Jones “proceeded . . . to grab” the defendant, but the defendant “came straight down on [Mr.
Jones] with the ball bat.” Mr. Jones testified that the smaller end of the bat struck his arm, which
he had raised to protect himself, and that the larger end struck his head. He said that the blow caused
a scar on his head and fractured his wrist, resulting in his wearing a cast for six weeks.
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Mr. Jones testified that he then grabbed the defendant by the throat and squeezed and
that he then tripped the defendant and took the bat. He hit the defendant two or three times with the
bat, and the defendant ran away. Mr. Jones, who testified that he spent eight years with the National
Guard, chased after the defendant, but he tripped over the stoop in front of Brownie’s. He testified
that he then continued to chase the defendant and caught up with him in an abandoned parking area.
He told the defendant that he had his “toy,” referring to the baseball bat, and the defendant
responded, “Come on; I have somethin’ for you.” Mr. Jones testified that the defendant swung his
fists at him, so he hit the defendant’s left knee with the bat, causing him to fall. Mr. Jones stated that
he then beat the defendant with the bat, and that the defendant “[d]idn’t do much of nothin’ but lay
there.” Mr. Jones testified that the “scuffle” ended when he became “worn out from hittin’ [the
defendant] with the bat.” The defendant then ran into an alley, and Mr. Jones returned to the bar.
He stated that he received medical attention for his injuries the next day.
On cross-examination, Mr. Jones maintained that he never threatened the defendant
when he first encountered him. He further stated that he did not believe Mr. Veals threatened the
defendant but that he was “[t]ryin’ to get him out of somebody’s car that we knew . . . he wasn’t
supposed to be in.” Mr. Jones opined that his beating the defendant was self-defense, and he
testified that he had never been in any other altercations at Brownie’s. Mr. Jones admitted there was
no broken glass around the vehicle that indicated a break-in, but he explained that Ms. Tilman had
left her vehicle unlocked so that a possible burglar entering her car he would not cause any damage
to her vehicle.
Defense counsel asked if the defendant had a firearm, to which Mr. Jones responded
that he only had the baseball bat. Defense counsel then pointed to a portion of the police report
where he described the defendant as pulling a handgun. Mr. Jones explained that, during the
incident, some children in the neighborhood set off a firework that sounded like a gunshot.
Patricia Reed testified that she played in a dart league at Brownie’s three times a week
and that she had known Mr. Jones for one year and Mr. Veals for two years. She stated that on
March 13, 2007, she and Mr. Jones had won their dart game and left to go to another bar. She
testified that they returned to Brownie’s at 9:30 or 9:45 p.m.
Ms. Reed testified that she saw Mr. Veals and Mr. Jones walk outside the bar, and
that she then went outside and saw Mr. Veals and the defendant fighting. She also observed a black
car in the street next to the dumpster. Ms. Reed said that Mr. Veals lay on the ground and that the
defendant was on top of him. She said the men were “[s]cufflin’, throwin’ each other–throwin’ [Mr.
Veals] over the car.” Although she did not see the defendant strike Mr. Veals with the bat, she
observed a “[b]ig ole knot” on his head. Ms. Reed then saw Mr. Jones pull the defendant off of Mr.
Veals and the defendant strike Mr. Jones with the bat. She testified that she saw Mr. Jones take the
bat from the defendant and hit him with it and that the defendant and Mr. Jones then “took off
runnin’.” Ms. Reed testified that she was only outside for “about a minute” and that “everything
happened real fast.”
Ms. Reed testified that, inside the bar, she later saw Mr. Veals, who lay unconscious
for two or three minutes by the pool table. She stated that, when Mr. Jones returned to the bar he
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was “scuffled up pretty bad” with a “big cut in his head.” She believed that the bar’s owner, Mr.
Brown, called the police. She stated that she met with Investigator Leoffler on Sunday afternoon
and identified the defendant in a photographic lineup. She maintained that neither Mr. Jones nor Mr.
Veals possessed any weapons that evening. On cross-examination, Ms. Reed admitted that nobody
at the bar knew whether the defendant had permission to be in the vehicle.
Steven Manning testified that he had been a friend of Mr. Jones for three or four years
and of Mr. Veals for two or three years. He stated that on March 13, 2007, he arrived at Brownie’s
at approximately 7:30 p.m. Mr. Manning testified that he heard a car horn blow outside and that Mr.
Veals seemed curious and stuck his head outside the bar. He testified that Mr. Veals then said,
“Somebody’s rumbling around through somebody’s car,” and that Mr. Veals said the man had a bat.
Mr. Manning stated that he exited the bar after Mr. Veals and Mr. Jones. Although he did not see
the defendant strike Mr. Veals, he saw the two “scuffling.” Mr. Manning said,
[I]t looked like [Mr. Veals] was kind of dazed a little bit, and [Mr.
Jones] had just kind of got there and was telling [Mr. Veals] to grab
a hold of the guy. And he was going to grab the bat, and that’s kind
of what happened. [Mr. Veals] kind of tackled the guy while [Mr.
Jones] had a hold of the bat.
Mr. Manning stated that he could not see much of what was happening because the defendant ran
between two cars, obstructing his view. He said, “I think after [Mr. Jones] took one swing the big
guy that originally had the bat was up and running more or less.” Mr. Manning stated that Mr. Jones
followed the defendant and that Mr. Manning followed in his truck. He testified that he encountered
Mr. Jones walking back toward the bar. He said that, back at Brownie’s, Mr. Veals had a “rather
large pump knot” on his head and that Mr. Jones had an injury to his head as well.
Investigator A.J. Leoffler testified that he investigated the March 13, 2007 assault on
the Friday following the incident. He testified that the defendant was a known suspect and that he
created a photographic lineup using the defendant’s photograph. He met with the victims at
Brownie’s where he interviewed them about the incident. He testified that both victims identified
the defendant from the photographic lineup. Investigator Leoffler observed that Mr. Veals had “a
big grapefruit contusion on the side of his head.” Investigator Leoffler also spoke with Ms. Reed
on the night of the incident, and Ms. Reed also identified the defendant from a photographic lineup.
On cross-examination, Investigator Leoffler stated that he recalled witnesses reporting
a handgun being present during the incident. He also admitted that, although he had the baseball bat
in custody, no fingerprint evidence or blood testing had been taken from the bat.
The defense called Ms. Denise Swatzell, who testified that on March 13, 2007, she
was parked in her car outside of Brownie’s bar. She testified that she and the defendant were “seein’
one another” although she was married to another man. Ms. Swatzell said she had been separated
from her husband for 10 years. She testified that she and the defendant were parked in her vehicle
in the parking lot of Brownie’s and were kissing when approximately five men came to her vehicle.
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Ms. Swatzell testified that the men said something about people breaking into their
vehicles. She testified that one of the men was Mr. Veals, who she recognized from living around
the area. She also identified one of the men as Mr. Jones. Ms. Swatzell testified that one of the men
had a tire iron and another had the baseball bat. She stated that the men grabbed the defendant out
of her car and started “jumpin’ on him and stuff.” She testified that the defendant then told her to
leave and that she drove her vehicle over the street curb and circled the block. She stated that she
believed the men would harm her. Ms. Swatzell testified that, when she returned she saw a heavyset
male coming at her with the bat. The defendant then returned to her vehicle, and she left.
On cross-examination, Ms. Swatzell explained that she drove a black Grand Am and
that she parked it by the dumpster in front of Brownie’s; however, she maintained that her vehicle’s
engine was off and that her lights were off. She said that the defendant’s face was bloody after his
encounter with the men but that he would not allow her to take him to the hospital. She also said
the defendant had large bruises on his back. She admitted that she did not see much of the fighting
because she drove away.
The defense next called the defendant’s brother, Martin Dwayne Hill. Mr. Hill
attempted to testify to an incident in December 2007 involving Mr. Veals’s propensity for violence.
However, the trial court would not permit the evidence, and Mr. Hill was excused from the stand.
Defense counsel made no attempt to obtain an offer of proof regarding Mr. Hill’s testimony.
The defendant chose not to testify. Based on the evidence as summarized above, the
jury convicted the defendant of both counts of aggravated assault for the offenses against Mr. Veals
and of one count of aggravated assault and one count of felony reckless endangerment for the
offenses against Mr. Jones.
Voir Dire on Sequestration Violation
After the State rested its case, defense counsel informed the court that he observed
Mr. Veals, Mr. Jones, and Ms. Reed discussing the case and their testimony in the hallway. Because
the court had ordered the “rule” for all witnesses, the defendant moved for a mistrial “just simply
because there is an appearance of impropriety.”
The court then called Mr. Jones and questioned him regarding the allegations. Mr.
Jones maintained that he had not discussed the case with anybody and that he and Investigator
Leoffler had been “sittin’ out there talkin’ about fishin’ . . . but not the case.” On cross-examination
from defense counsel, Mr. Veals denied talking about his testimony with Mr. Jones, Mr. Manning,
Ms. Reed, and Investigator Leoffler. Mr. Veals maintained, “We was sittin’ out there bull shittin’.
I mean it had nothin’ to do with this case, nothin’.”
The court also called Investigator Leoffler, who testified that he had been outside the
courtroom for most of the afternoon. He stated that no witness had discussed their testimony and
that, if they had, he would had stopped them. On cross-examination, Investigator Leoffler admitted
that he had not been with the witnesses for “100% of the time,” but he maintained that he had been
there a majority of the time.
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The court chose to accredit the testimony of Investigator Leoffler and Mr. Veals and
found that the witnesses “talked about fishing and other things” and did not violate the rule of
sequestration of witnesses. It denied the motion for mistral.
Sentencing
On March 28, 2008, the trial court held a sentencing hearing to determine the
sentence for the defendant’s two aggravated assault convictions.1 The State first asked that the
defendant be sentenced as a Range II offender and submitted certified copies of the qualifying
convictions. The State further argued as enhancement factors that the offense involved great risk
to human life, that the defendant had a history of criminal conduct, and, relying on similar burglary
charges pending with the Knox County grand jury, that the defendant had a pattern of such behavior.
The State requested an eight-year sentence for each aggravated assault conviction. The State also
argued that the extent of defendant’s criminal record showed that he had devoted much of his life
to criminal acts as his choice of livelihood and requested consecutive sentencing.
The trial court noted that, in Range II, the term of punishment for a Class C felony
ranged from six to 10 years. The court found “no question that [the defendant] has the requisite prior
violent convictions . . . to be necessary to meet the range.” The trial court also noted that the
defendant had convictions over and above the appropriate range. See T.C.A. § 40-35-114(1). The
court applied to a “certain extent” the seriousness of the injuries inflicted upon the victims,
specifically Mr. Veals. See id. § 40-35-114(6). The court also “to some extent” considered the
defendant’s use of a deadly weapon. See id. § 40-35-114(9). It also noted that the defendant had
no hesitation in committing the offense when risk to human life was high and the victims were in
a place they had a lawful right to be. See id. § 40-35-114(10). The court viewed as “very small
factors” enhancement factors 11 and 12 involving injury to persons other than the intended victim.
See id. § 40-35-114(11)-(12). The court concluded, “I have more than plenty convictions to place
[the defendant] at the eight year range, in the mid range.”
Regarding consecutive sentencing, the court found that the defendant had “spent most
of his life engaging in criminal behaviors” and ordered consecutive sentences. See id. § 40-35115(b)(1)-(2). The court further noted that the defendant had been revoked from parole twice and
that he was not a good candidate for probation. The court entered judgments reflecting two
consecutively-running eight-year sentences with the Tennessee Department of Correction on March
28, 2008.
The defendant filed a timely motion for new trial on April 24, 2008, which the trial
court denied on May 29, 2008. The defendant filed a notice of appeal on November 9, 2008.
Issues on Appeal
1
Counts 1 and 2 were merged into a single count of aggravated assault, and counts 3 and 4 were also merged
into a single count of aggravated assault. Effectively, the defendant received one aggravated assault conviction for each
victim.
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The defendant presents six issues on appeal. The defendant first alleges that the
convicting evidence was insufficient to support the verdict. Second, he challenges the trial court’s
denial of his motion for mistrial in light of “the State witnesses violating the rule of sequestration.”
Third, he argues that the trial court erred by failing to instruct the jury on “Defense of Another.”
Fourth, the defendant argues that the trial court erred in excluding from evidence the testimony of
Martin Hill regarding the aggression of Mr. Veals. The defendant’s last issues challenge his
sentence, and he argues that the trial court failed to properly evaluate the applicable enhancement
and mitigating factors and that the trial court erred in imposing consecutive sentences.
The State argues that the appeal should be dismissed because the defendant’s notice
of appeal was filed well outside the 30 days provided by Tennessee Rule of Appellate Procedure 4.
Further, the State opposes the defendant’s appellate issues on their merits.
I. Jurisdiction
The defendant did not file his notice of appeal until November 9, 2008, more than
five months after the trial court denied his motion for new trial. The State correctly argues that such
notice is untimely. However, the filing of a notice of appeal is not jurisdictional and may be waived
in the interest of justice. Tenn. R. App. P. 4(a). The State, in asking us to dismiss this appeal, argues
that “[h]ere, the defendant has provided no explanation to this [c]ourt for filing his notice of appeal
more than four months after the 30-day period passed.” However, upon our review of the record we
find that the late-filed notice of appeal resulted from a disorganized transfer of this case from trial
to appellate counsel. We note that appellate counsel filed a “Motion to Grant Waiver of Timely
Filing of Notice of Appeal” in the trial court, which the trial court granted. We note that the trial
court had no jurisdiction to grant the waiver of timely notice, which is explicitly reserved for the
appellate courts. See Tenn. R. App. P. 4(a) (“The appropriate appellate court shall be the court that
determines whether such a waiver is in the interest of justice.”). Nonetheless, we believe the
seriousness of the offenses and legitimate nature of the issues for review require our determining this
appeal on its merits, and we waive timely filing of the notice of appeal.
II. Sufficiency of the Evidence
The defendant argues that “[t]he [j]ury was provided with the self defense instruction.
The burden was upon the Government to prove beyond a reasonable doubt that [the defendant] did
not have that defense. It provided no evidence to do so.” The State argues that the evidence
supports the defendant’s convictions and that the defendant did not act in self-defense. 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. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). The rule applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. Winters, 137 S.W.3d at 654.
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In determining the sufficiency of the evidence, this court should neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. 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). Significantly, 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. Id.
As is applicable in this case, “[a] person commits aggravated assault who . . .
[i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and . . . [c]auses serious
bodily injury to another” or “uses and displays a deadly weapon.” T.C.A. § 39-13-102(a)(1)(A)-(B)
(2006). “‘Serious bodily injury’ means bodily injury that involves . . . [a] substantial risk of death;
. . . [p]rotracted unconsciousness; . . . [e]xtreme physical pain; . . . [p]rotracted or obvious
disfigurement; or . . . [p]rotracted loss or substantial impairment of a function of a bodily member,
organ or mental faculty.” Id. § 39-11-106(34).
The defendant does not contest that he was involved in the altercation, but he argues
that no reasonable juror could find beyond a reasonable doubt that the defendant did not act in selfdefense. We disagree. The evidence established that Mr. Veals and Mr. Jones approached a vehicle
while the defendant appeared to be burglarizing it. Although Mr. Veals admittedly raised his voice,
the record repeatedly shows that he never threatened the defendant. The evidence, viewed in a light
most favorable to the State, showed that within a very short time, and apparently without any verbal
exchange, the defendant unilaterally decided to strike the unarmed Mr. Veals with a baseball bat,
causing unconsciousness and a large “knot” on his head. Further, the jury clearly did not credit Ms.
Swatzell’s testimony regarding the victims’ pulling the defendant out of her vehicle then beating
him. The evidence as credited by the jury is clearly sufficient to support a verdict of aggravated
assault for the injuries to Mr. Veals.
With regard to the defendant’s offenses against Mr. Jones, Mr. Jones testified that,
upon seeing the defendant attack his friend, Mr. Veals, he attempted to grab the defendant. The jury
clearly found that the defendant was the initial aggressor against Mr. Veals. Thus, Mr. Jones’s rush
to Mr. Veals’s attacker was instigated by the defendant’s behavior, and a defendant may not use selfdefense when he provokes the use of force. See T.C.A. § 39-11-611(d) (“That threat or use of force
against another is not justified if the person provoked the other individual’s use or attempted use of
unlawful force . . . .”). The jury clearly did not credit the defendant’s witnesses, and the evidence
as presented supported the conviction of the defendant for the aggravated assault of Mr. Jones.
III. Mistrial Resulting from Violation of Tennessee Rule of Evidence 615
The defendant next argues that the State’s witnesses, in violation of the rule of
sequestration of witnesses, see Tenn. R. Evid. 615, discussed testimony regarding the case outside
of the courtroom during trial. The defendant avers that the trial court should have granted him a
mistrial as a result of the witnesses’ misconduct. The State counters that the defendant failed to
prove a violation of the rule of sequestration of witnesses and, therefore, the court properly denied
his motion for a mistrial.
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Prior to calling its first witness, all witnesses were placed under the “rule,” which is
embodied in Tennessee Rule of Evidence 615:
At the request of a party the court shall order witnesses, including
rebuttal witnesses, excluded at trial or other adjudicatory hearing. In
the court’s discretion, the requested sequestration may be effective
before voir dire, but in any event shall be effective before opening
statements. The court shall order all persons not to disclose by any
means to excluded witnesses any live trial testimony or exhibits
created in the courtroom by a witness. . . . This rule does not forbid
testimony of a witness called at the rebuttal stage of a hearing if, in
the court’s discretion, counsel is genuinely surprised and
demonstrates a need for rebuttal testimony from an unsequestered
witness.
Tenn. R. Evid. 615. “The sequestration rule prevents witnesses from hearing testimony of other
witnesses and subsequently adjusting testimony.” State v. David Scarbrough, No. E1998-00931CCA-R3-CD, slip op. at 20 (Tenn. Crim. App., Knoxville, July 11, 2001), perm. app. denied (Tenn.
2002); see also State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). “Rule 615 does not prescribe a
specific sanction for its violation. Instead, courts retain the discretion to impose a variety of
sanctions appropriate to the circumstances.” State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App.
2001) (citations omitted). “‘The most severe sanction would be a mistrial or a ruling for or against
a party on a particular issue. This draconian sanction should be used only in egregious cases,
perhaps involving intentional violations of the rule for the purpose of creating perjured testimony.’”
State v. Dennis Burnette, No. E2007-02258-CCA-MR3-CD, slip op. at 12 (Tenn. Ct. App.,
Knoxville, Aug. 14, 2009) (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 6.15[b] (5th
ed. 2005)).
Whether to grant a mistrial is an issue entrusted to the sound discretion of the trial
court. See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). “Generally a mistrial
will be declared in a criminal case only when there is a ‘manifest necessity’ requiring such action
by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). The burden
of establishing the necessity for mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d
385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to correct damage done
to the judicial process when some event has occurred which precludes an impartial verdict.” Id. On
appeal, this court will disturb a trial court’s denial of a motion for mistrial only when there is an
abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); Williams, 929 S.W.2d at
388. An abuse of discretion occurs when the trial court applies an incorrect legal standard or reaches
a conclusion that is “illogical or unreasonable and causes an injustice to the party complaining.”
State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
In the instant case, the trial court held a jury-out hearing to determine whether the rule
of sequestration of witnesses had been violated. After interviewing Mr. Veals and Investigator
Leoffler and permitting defense counsel to cross-examine these witnesses, the trial court determined
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that no such violation had occurred. We will not disturb the trial court’s findings, and the record
does not preponderate against the trial court’s finding that any communication between witnesses
during the trial involved general conversation unrelated to the case. Further, we will not disturb the
trial court’s exercise of discretion in denying the defendant’s motion for a mistrial. The defendant
failed to show that any violation of Rule 615 led to any abuse of the trial process.
IV. Jury Instruction on “Defense of Another”
The defendant next argues that the trial court erred by denying his request for a jury
instruction on “defense of another.” The defendant argues that evidence adduced at trial supported
a jury instruction regarding the defendant’s defending Ms. Swatzell from harm. The State argues
that the evidence did not support the inclusion of the jury instruction for defense of another.
Our criminal statutes allow a defendant to claim defense of another as a defense when
the defendant reasonably believes that another person is in danger and uses force permitted under
our self-defense statute. See T.C.A. § 39-11-612(a). The defendant must “reasonably believe[] that
the intervention is immediately necessary to protect the third person.” Id. § 39-11-612(b).
The trial court has a duty “to give a complete charge of the law applicable to the facts
of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see Tenn. R. Crim. P. 30. “The
issue of the existence of a defense is not submitted to the jury unless it is fairly raised by the proof.”
T.C.A. § 39-11-203(c). The burden of showing that a defense is applicable rests upon the defendant.
Id., Sentencing Comm’n Comments. “To determine if [a defense] is fairly raised by the proof, ‘a
court must, in effect, consider the evidence in the light most favorable to the defendant, including
drawing all reasonable inferences flowing from that evidence.’” State v. Bult, 989 S.W.2d 730, 733
(Tenn. Crim. App. 1998) (quoting State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App.
1993)).
Our review of the record shows that the trial court considered the evidence in a light
most favorable to the defendant. The defendant argued that, because the defendant told Ms. Swatzell
to leave when he was being beaten by the men who approached her vehicle, the defendant was acting
in Ms. Swatzell’s defense when he struck the victims with the bat. On appeal, the defendant argues
that “Ms. Swatzell was defenseless in the vehicle. [The defendant] was perfectly reasonable to fear
for her safety and his urging her to flee confirms his fear.” However, the trial court found, “If the
jury were to believe that she was in her car and they took him out the door and she drove away, I’m
not too sure he was defending anybody else but himself.” We also observe that the evidence did not
otherwise indicate the defendant’s belief about the necessity of intervention. We will not disturb the
trial court’s findings. Further, we note that the jury clearly rejected the defendant’s self-defense
claim.
V. Exclusion of the Testimony of Martin Hill
The defendant next argues that the trial court erred in excluding evidence of Mr.
Veals’s propensity for violence. The defendant posits that Martin Hill, the defendant’s brother,
planned to testify that in December 2007, after the incident at hand, he observed Mr. Veals act
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violently toward him. Apparently, the defendant planned to offer this proof pursuant to Tennessee
Rule of Evidence 404(a)(2) to prove that Mr. Veals was the initial aggressor in the case at hand.
However, we need not tarry long over the defendant’s claim because he failed to make an offer of
proof regarding the possibly beneficial testimony. Defense counsel made several statements about
this evidence, but he never offered any proof to the trial court regarding the specific instance of
conduct. Without this information, it is impossible to conduct a meaningful review of this issue.
See State v. Hall, 958 S.W.2d 679, 691 n.10 (Tenn. 1997) (“Not only does [an offer of proof] ensure
effective and meaningful appellate review, it provides the trial court with the necessary information
before an evidentiary ruling is made. Indeed, generally, if an offer of proof is not made, the issue
is deemed waived and appellate review is precluded.”); see also Tenn. R. Evid. 103. The defendant
has waived this issue.
VII. Sentencing Issues
The defendant challenges the trial court’s weighing of enhancement and mitigating
factors and argues that the court should have sentenced him to six-year sentences rather than eightyear sentences. The defendant also alleges that the trial court erred in ordering consecutive
sentences. When there is a challenge to the length, range, or manner of service of a sentence, it is
the duty of this court to conduct a de novo review of the record with a presumption that the trial
court’s determinations are correct. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” Id. “The burden of
showing that the sentence is improper is upon the appellant.” Id. In the event the record fails to
demonstrate the required consideration by the trial court, review of the sentence is purely de novo.
Id. If appellate review reflects that the trial court properly considered all relevant factors and if its
findings of fact are adequately supported by the record, this court must affirm the sentence, “even
if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
The defendant argues that the trial court applied enhancement factors that are
contained in the elements of the offense of aggravated assault, thereby subjecting the defendant to
“double enhancement.” See State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997) (stating that a trial court
must “exclude enhancement factors ‘based on facts which are used to prove the offense’ or ‘[f]acts
which establish the elements of the offense charged.’” (quoting State v. Jones, 883 S.W.2d 597, 601
(Tenn. 1994), superceded by statute on other grounds as recognized in State v. Carico, 968 S.W.2d
280, 288 (Tenn. 1998))). However, we note that the trial court’s findings were based not only on
the certified convictions exhibited by the State during the sentencing hearing, but also upon a
presentence report. The record before us is devoid of the presentence report.
De novo appellate review of the defendant’s sentences is substantially hampered by
the absence of the presentence report from the appellate record. As we have remarked on many
occasions, it is the appellant’s duty to include in the appellate record materials which are necessary
to convey a fair, accurate, and complete account of what transpired in the trial court relative to the
issues raised on appeal. See Tenn. R. App. P. 24; State v. Troutman, 979 S.W.2d 271, 274 (Tenn.
1998). The presentence report is evidence which is considered by the trial court and therefore is
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necessary to convey a fair, accurate, and complete account of the proceedings below. See T.C.A.
§ 40-35-210(b); State v. Johnny Parker, No. 03C01-9307-CR-00214 (Tenn. Crim. App., Knoxville,
Nov. 22, 1994) (sentencing issue waived in absence of presentence report). In the absence of an
adequate record on appeal, this court must presume that the trial court’s rulings were supported by
sufficient evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v.
Summers, 159 S.W.3d 586, 600 (Tenn. Crim. App. 2004), perm. app. denied (Tenn. 2005).
Conclusion
We find no error in the defendant’s convictions, and we presume that the trial court
correctly sentenced the defendant in light of his failure to submit to this court a complete record of
the proceedings below. In light of the foregoing analysis, we affirm the judgments of the trial court.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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