Assigned on Briefs May 6, 2014
Appeal from the Circuit Court for Fayette County No. 12-CR-119 J. Weber McCraw, Judge
David Stowers, Bolivar, Tennessee, and Coleman Garrett, Memphis, Tennessee (at trial); Andrea Sipes Lester, Jackson, Tennessee (on appeal), for the appellant, Allen Dale Spicer.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Michael Dunavant, District Attorney General; and Mark Davidson, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Camille R. McMullen, J., joined. Joseph M. Tipton, P.J., Not Participating.
ALAN E. GLENN, JUDGE
This case relates to an altercation involving Gary Kee, Paul Logan, and the defendant. At the trial, Fayette County Sheriff's Deputy Dale Phillips testified that he responded to an assault call on June 23, 2012. He went to the local hospital to speak to the victim, Kee, who was unable to be interviewed because he was "seriously injured" and undergoing a CT scan. He and other deputies then went to the scene of the altercation, the defendant's house. Blood was in the carport, on the rear patio, and throughout the house. Beer cans were in the kitchen area. He said the defendant was detained by other deputies before he arrived. After he walked through the house, Deputy Phillips got the defendant out of the police car and talked to him. The defendant appeared to be intoxicated, and he took photographs of the defendant, which showed bloodstains on his right pants leg. The defendant did not appear to have any injuries to his face but had a swollen right hand.
Deputy Phillips testified that he visited the victim at the hospital the next day. The victim was unconscious, nonresponsive, and unable to communicate. His head was shaved, and a tube had been inserted on the side of his head. Deputy Phillips took photographs of the victim twenty-four hours after the assault, which were admitted as exhibits. The photographs showed the victim lying in a hospital bed with his eyes closed and tubes extended from his head and mouth. The photographs also showed blood in the victim's left ear and abrasions to his left foot.
Deputy Phillips testified that at the time of the trial, the victim was living at a nursing home. He said that he last saw the victim one week before the trial and that the victim was able to open his eyes and slightly move his neck. The victim was unable to communicate verbally but could blink his eyes, although Deputy Phillips did not think the victim recognized him as a police officer.
Deputy Phillips identified a photograph of the defendant's swollen right hand taken the day after the assault. He did not attempt to interview the defendant the night of the assault. He spoke to the defendant twenty-four hours later. The defendant told Deputy Phillips that he and the victim argued, that the victim slapped him, that the victim attempted to kiss him, and that he struck the victim three times, knocking out the victim. The defendant told the deputy that the assault occurred in the yard. The defendant mentioned an ongoing "incident" between the defendant, Mr. Logan, and the victim.
The defendant's handwritten statement was read to the jury. It stated:
I, Dale Spicer, was at home and Gary [Kee] and his girlfriend [Lisa] w[ere] there. Gary and Lisa w[ere] fighting the night before. My mom came over to my house and Gary was getting smart with her and then she left. Mike and Sherry w[ere] there. Gary and Lisa and I w[ere] in the house and I told Gary that he was gonna have to leave. He turned and slapped me in my face. Then we started fighting. I hit him 3 or 4 times. After that, Gary and Little Mike started fighting. Mike hit Gary and then kicked him in the head. After that, I helped Gary in the car and then they left.
Deputy Phillips testified that the defendant referred to Mr. Logan as Mike or Little Mike. He agreed the defendant did not include his knocking out the victim in his written statement. He said the defendant mentioned that the victim offended the defendant's mother and that they had been drinking alcohol. He said the victim had been staying at the defendant's house for a few days. He said the defendant only mentioned the victim's slapping the defendant, not hitting him. Regarding the defendant's swollen hand, the defendant told the deputy that his hand was swollen because he struck the victim. The defendant stated that the fight began in the living room, that he struck the victim, that the victim landed on the outside patio, that the victim was knocked unconscious, and that the victim did not have an opportunity to hit him. The defendant never claimed to have sustained injuries from the fight and bragged about the victim's inability to hit him.
Deputy Phillips testified that the defendant was about fifty pounds heavier and five to six inches taller than the victim. He said blood was found near the fireplace in the living room, on the living room and entryway walls, on the hallway carpet, and in the rear bedroom. He saw beer cans near the fire pit in the backyard. He identified multiple photographs of the blood and beer cans, which were received as exhibits. He said Mr. Logan and his wife, Sherry, were not at the scene when he arrived.
On cross-examination, Deputy Phillips testified that the defendant went into custody without incident and that Mr. Logan was captured after fleeing a residence. He agreed Mr. Logan never called the police, although Mr. Logan claimed he attempted to protect the victim.
Deputy Phillips testified that the defendant's mother gave him Mr. Logan's shirt and hat and that the clothes did not contain blood, although blood was on the defendant's jeans. He spoke to Leona Duncan, the victim's girlfriend, at the emergency room, although he knew her as Lisa Duncan. He denied knowing her as Lisa Powell and taking photographs of her at the hospital. He said Mr. and Mrs. Logan each took photographs on their cell phones related to this case. He said he obtained their cell phones and found photographs of the victim.
Deputy Phillips testified that he had been to the defendant's house one month previously because the defendant had reported a theft. He said the blood he found on the night of the assault appeared to be fresh, although he did not take samples from the garage. He denied "blocking off" the crime scene, saying it was not needed because the scene was not open to the public and other people were not present.
Deputy Phillips testified that he also suspected Mr. Logan of assaulting the victim based on information he received from Ms. Duncan. He said the police were unable to find Mr. Logan on the night of the assault. He said only the defendant and two "younger folks" were at the defendant's house when he arrived. The younger folks were looking for the defendant and were permitted to leave because they were not involved in the present case. Mr. Logan was arrested about one week after the assault.
Deputy Phillips did not recall if the defendant told him the victim attempted to kiss him but agreed the defendant's statement did not mention it. He agreed the defendant did not say he kicked the victim. He said that the assault occurred between 3:00 and 5:00 p.m. and that he was dispatched to the hospital at 8:42 p.m. He said the hospital was about seven or eight miles from the defendant's house. He denied finding blood along the defendant's long driveway.
Deputy Phillips testified that he took a photograph of Ms. Duncan's left leg the day after the assault when she gave her statement to the police. He agreed the photograph showed bruises on her leg.
On redirect examination, Deputy Phillips testified that Mr. Logan was charged with aggravated assault and that the arrest was based on the defendant's statement and other evidence gathered during his investigation. He agreed Mr. Logan pleaded guilty to aggravated assault and was serving his sentence. He said the blood found at the scene was not analyzed because it appeared to be fresh. He did not believe the blood came from the defendant or Mr. Logan because they did not have injuries that would have caused bleeding. He said that Ms. Duncan was not considered a suspect in the assault and that her bruises were old. He agreed he did not know what clothes Mr. Logan wore at the time of the assault.
Leona Duncan testified that, at the time of the assault, she and the victim were living together at the defendant's house. She said that on the night before the assault, she and the victim argued but resolved the dispute and went to sleep. She said that the next morning, she and the victim ran errands and returned to the defendant's house. She said that the victim received a telephone call about a job painting bridges. She said the victim lived with the defendant because he had been in trouble with the law and was not permitted to live with his father.
Ms. Duncan testified that between 10:00 and 11:30 a.m., Mr. Logan arrived at the defendant's house with a bottle of whiskey. She told the victim she was going to leave if he started drinking. She said that the victim promised he would not drink the whiskey and that she took a nap. She said the defendant dragged her out of bed around 3:00 p.m. and told her, "If you want to see your man alive, you better come . . . out here." She saw the victim lying on the ground outside, unconscious and covered in blood. She said that she screamed and asked the defendant and Mr. Logan what they had done and that they "were laughing and carrying on." She lifted the victim, who awoke enough to help her get him upright. She placed the victim in the swing and cleaned his face. The victim asked her to take him to his father's house. She gathered their belongings, placed them in the car, and when she returned to the victim, the defendant was standing over the victim and hitting him. She said she screamed for the defendant to stop. She said the defendant stopped hitting him and laughed. She said that she entered the house to get additional belongings and that when she returned the defendant was standing over the victim and hitting him again. She attempted to grab the victim, but the defendant grabbed her and said, "If you don't leave here, I'm going to kill you, too." She said she ran to her car and left without the victim. She denied the victim was conscious when she left.
Ms. Duncan testified that she called Lisa Kelley, who had been at the defendant's house earlier. After she talked to Ms. Kelley, she returned to the defendant's house and threatened to call the police, if "they" did not allow her to get the victim and leave. She said that the victim was inside the house when she arrived and that Mrs. Logan was there. The defendant told her, "Well, I'll show you how to drag a dead deer, " and grabbed the victim's feet and dragged him out of the house. She said the victim's head hit the exterior concrete steps as the defendant dragged him. She said the defendant stated, "I'll get him to come to, " and poured water on the victim, who remained unconscious. She said the defendant claimed he was going to drown the victim. She said Mr. and Mrs. Logan helped her place the victim in her car.
Ms. Duncan testified that the victim woke after they left. She told the victim to squeeze her hand if he could hear her, and the victim squeezed her hand. The victim could speak slightly, and he told her to drive to his mother's house, but his mother's door was locked and they left. She said the victim continued to go in and out of consciousness and told her to drive him to Kenneth Grooms's house. She said that they could not stay at Mr. Grooms's house and that she drove to the hospital, although the victim did not want to go to the hospital because he had an outstanding violation of probation warrant. She said the victim was nonresponsive when they arrived at the hospital.
Ms. Duncan testified that the defendant's hands were bloody from hitting the victim. She agreed she, the victim, and the defendant drank alcohol that day. She said that she previously obtained a restraining order against the victim for domestic-related reasons and that at the time of the assault, the order was active. She feared the victim would have been arrested for violating the order if she told the police she was with him. She agreed she initially did not tell the ...