Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: November 12, 2014
Appeal from the Criminal Court for Davidson County No. 2010-A-553 J. Randall Wyatt, Jr., Judge
Ryan C. Caldwell, Nashville, Tennessee, for the Petitioner, Yoni Sales Barahona.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Brian M. Ewald, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
CAMILLE R. McMULLEN, JUDGE
The Petitioner's conviction arose from the stabbing of the victim, Jose Aguilar-Varagas, on November 21, 2009, at a night club in Nashville. After a jury trial, the Petitioner was convicted as charged of aggravated assault. He was subsequently sentenced as a Range II, multiple offender to ten years' incarceration. See State v. Yoni Sales Barahona, No. M2011-01300-CCA-R3-CD, 2012 WL 3291799 (Tenn. Crim. App. Aug. 13, 2012), perm. app. denied (Tenn. Jan. 14, 2013). In its opinion on direct appeal, this court summarized the evidence as follows:
At trial, club owner and manager Oscar Membreno testified that on November 21, 2009, he saw "a group of people that were fighting inside the club, " so he went outside to call the police. As he left, he "saw a young man that had a knife in his hand" and another individual "screaming that he had been cut or stabbed." Mr. Membreno identified the [Petitioner] as the person he had seen with a knife. He said that he did not see any other individual with a knife that night. He also identified a knife produced by the State as the knife police recovered from the women's restroom inside the night club on November 21, 2009. Mr. Membreno said that he saw "[t]he one that was bleeding" identify the [Petitioner] as the person who had stabbed him.
During cross-examination, Mr. Membreno said that there were approximately 60 people in the night club when the fight broke out among the 25 or so people who were standing near the pool tables. He testified that he employed two bouncers, but he had sent both home by the time the fight erupted. As a result, there were some people who had been permitted to enter the establishment without being searched for weapons. Mr. Membreno clarified that he did not see the [Petitioner] threaten anyone with the knife. He acknowledged that after the stabbing, the "friends of the wounded man" went outside and returned with "a machete." He said that the victim left the bar but returned when police arrived. He conceded that he did not see the [Petitioner] go into the women's restroom and that he had only seen the "silver" part of the knife that the [Petitioner] held. He said that he could not be sure that the knife recovered by police was the knife he saw in the [Petitioner]'s hand.
Emergency room physician Doctor John Nixon testified that he treated the victim for "what appeared to be a superficial stab wound right below the naval."
Investigator Hugh Coleman of the Davidson County District Attorney General's Office testified that he was asked to locate the victim, Jose Oscar Aguilar-Varagas. He said that he consulted several databases using various spellings and word combinations similar to the victim's name along with similar dates of birth to obtain information relative to the victim. Utilizing the information he found, he traveled to several addresses that had been associated with the victim. Despite his efforts, he was not able to locate the victim.
At that point, the recording of the victim's preliminary hearing testimony was played for the jury. During that testimony, the victim testified that he had gone to the Oasis night club "to pick up some money" from a man he had been working for. He said that the [Petitioner] came up to him and asked him if he "belong[ed] to a marra." The victim said that when he told the [Petitioner] that he did not "belong to any marra, " the [Petitioner] told the victim that he did and then "lifted up his shirt like this." In response, the victim lifted his own shirt, and the [Petitioner] said, "[O]h well that's pretty nice then." The victim then walked away from the [Petitioner] heading toward the restroom. At that point, the [Petitioner], who had pulled a knife, came toward the victim's cousin. The victim said that he "pushed [his] cousin aside, " and the [Petitioner] stabbed him. He testified that he went outside the bar after being stabbed. The victim denied being a member of any gang. The victim said that he consumed only part of a single beer prior to the altercation and that the [Petitioner] did not appear to be intoxicated.
During cross-examination, the victim claimed that his employer instructed him to come to the diner adjoining the night club to get paid. He said that he did not talk to the [Petitioner] for very long and that he did not know the meaning of the word "marra, " which apparently referenced gang membership. The victim said that he was at the club with his cousin, a friend, and a man whose name he did not know. He said that none of his companions was armed with a machete.
Metro Police Department Officer Clifton Huffmaster testified that he traveled to the Oasis night club in response to a call that an armed person was located on the premises. When he arrived, Mr. Membreno, who was waiting outside, told him that "there had been a stabbing and a fight and that the person who had done the stabbing was still inside of the night club." Once inside the establishment, Mr. Membreno identified the [Petitioner] as the perpetrator, and officers took the [Petitioner] into custody. Officer Huffmaster described the scene as "somewhat chaotic" and the patrons that remained at the bar as "still quite rowdy." He said that although the victim was not at the night club when officers first arrived, the victim "returned to the scene and identified the [Petitioner] as the [one] who had stabbed him." Officer Huffmaster testified that the victim had a puncture wound in his abdomen and that his shirt was bloody. Accordingly, he summoned an ambulance, and the victim was taken to the hospital. ...