Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 20, 2014
Appeal from the Circuit Court for Sullivan County No. S60023 Robert H. Montgomery, Jr., Judge
Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant District Public Defender, Blountsville, for the appellant, Eric Parker.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Barry P. Staubus, District Attorney General; and Kaylin Render, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., and David A. Patterson, Sp.J., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was indicted for the intentional or knowing aggravated assault of a domestic abuse victim after he beat his girlfriend with a metal rod. The indictment charged that the defendant "did unlawfully, intentionally, knowingly and feloniously and by the use or display of a deadly weapon, to wit: a weight bar, cause bodily injury to another, [the victim], a domestic abuse victim, contrary to T.C.A. § 39-13-102."
The police took photographs of the alleged weapon at the time of the defendant's arrest on July 7, 2011. The defense filed a motion on July 27, 2012, less than two weeks before the scheduled trial, requesting the production of the photographs, the victim's medical records, and the names of all medical personnel who had treated the victim for her injuries. On July 31, 2012, the State responded that it did not possess or intend to introduce the victim's medical records; that it had produced all photographs within its possession; that a photograph of the weapon had been stored on a police officer's PDA and was subsequently lost; and that the weapon itself, however, was in the evidence room available for inspection.
The jury trial took place on August 7, 2012. Prior to trial, the defense moved for a continuance. Defense counsel argued that he had only learned the Wednesday before trial that the photographs had disappeared and that he had tried to see the weapon itself but had only obtained access to the weapon on the day of trial and to a photograph of it the day before trial. Because the weapon did not look the way that he expected, he believed that he needed to procure an expert to testify regarding whether it was consistent with the victim's wounds. He also asserted that he wanted to test the weapon for fingerprints. The trial court denied the motion, finding that "the allegations are not such that this is one that an expert needs to examine and compare the injuries. I think it's such that a lay person can look and make a determination." The trial court further noted that the State was not proceeding on a theory that the victim suffered serious bodily injury. The trial court likewise found that the defendant had delayed subpoenaing the victim's medical records and that, in any case, expert testimony was not necessary to establish whether the victim suffered bodily injury.
At trial, the victim testified that, at the time of the July 7, 2011 assault, she had been dating the defendant, whom she called "Rick, " for almost one year and had been living with him on and off. The victim had bought the defendant a set of weights, which were not assembled but sitting in a corner of the living room. This set included two rods. The defendant and victim were in the process of moving to a new apartment, and the defendant had sent the victim to get some money orders earlier in the day. The victim testified that the defendant was upset because she was unable to use his debit card to get both money orders unless he was present. After the defendant obtained the second money order, he gave both of them, totaling $750, to the victim. The victim put them in the cargo pocket of her pants. At the apartment, she discovered dirt on her pants and spot cleaned them, changing into shorts and hanging the pants on an outside railing to dry.
About fifteen to twenty minutes later, the defendant entered the apartment and asked for the money orders. The victim testified that the way the defendant asked for them made her nervous. She felt in her pockets and thought she had lost them. She then went to the bedroom to look for them but could not think clearly because the defendant was yelling at her to find the money. The defendant then hit her with the back of his hand, and she fell on the floor. The defendant demanded her clothes, and she threw her shorts and shirt at his feet so he could check them. The victim testified that she began to get off the ground and "when I looked up there was a metal rod coming towards me." The defendant beat her with the rod, holding it like a baseball bat, and he continued to demand the money, telling her he would kill her and saying, "You're gonna die today." She testified that he hit her lower back and told her she would never walk again. The victim curled into a fetal position and the defendant hit her repeatedly. She tried to stop the blows with her hand and received an injury to her hand. At trial, the victim identified the metal bar with which she was beaten.
The victim testified that the defendant stopped beating her and she heard the door close. She put on a shirt and some boxer briefs over her underclothing and ran outside, screaming for help. At this point, she was bleeding and her limbs were beginning to swell. She ran up an outside staircase, and a neighbor named Ron tried to stop the bleeding. She testified that she then saw the defendant arrive in a car with a man she knew as "Chief." Ron was still outside, so the victim went into the apartment to gather some possessions. The defendant came in and tried to shut the door, but Chief put his arm and foot against the door and told the defendant not to hurt her anymore. She got her suitcase, and Chief and his wife gave her a ride to her father's house. After observing her injuries, her father called her sister, who took her to the hospital about fifteen minutes later. She found the money orders a week later in the back pocket of her shorts.
The victim testified that she had sustained permanent injuries in the attack, including scars, an injury to a tendon or ligament in her arm, and a hole in her thigh that was so deep that she could see bone at the time of the injury and that medical personnel were unable to close. Photographs of the injuries were introduced into evidence.
Ronnie Hamby, who lived on the floor above the defendant, confirmed that when the victim came upstairs, her arms were swelling and her legs and arm were bleeding. He testified that the victim was trying to get Chief and his wife to help her, but they were not doing anything, so he tried to wipe the blood off with a washcloth. He heard no screaming or yelling before seeing the victim, but his apartment was not located above the defendant's.
The victim's father testified that she arrived at his house with obvious injuries, missing a tooth, with marks on her limbs and a wound through which he could see bone. He immediately called the victim's sister, who took her to the hospital about half an hour later, around 2:00 or 3:00 p.m. He testified he had not been to the defendant's home that day and that he had only been to the defendant's apartment once and had not borrowed his money.The defendant's sister, Tonya Thomas, also testified that the victim was swollen, bleeding, and crying; she stated that she took the victim to the hospital sometime after 4:00 p.m.
Officer Nathan Russell participated in the search of the defendant's residence. He testified that the police arrived at the defendant's apartment at around 10:30 or 11:00 p.m. While conducting a protective sweep of the house, he recovered "a barbell, " which the victim had previously identified as the weight bar used to beat her, from under the bed in the only bedroom. There was another weight bar, which was slightly longer, in the living room. Officer Brandon Ferrell, a witness for the defense, confirmed that a weight bar was recovered from the defendant's home. He testified that he went to the hospital at about 8:15 p.m., photographed the victim's injuries, and then participated in the arrest of the defendant and search of his home. He took pictures of both the bar Officer Russell recovered from the bedroom and the one from the living ...