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State v. Baker

Court of Criminal Appeals of Tennessee, Nashville

April 28, 2017

STATE OF TENNESSEE
v.
GARRY BAKER

          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Rutherford County No. F-72659 David M. Bragg, Judge

         The Defendant, Garry Baker, was convicted by a Rutherford County Circuit Court jury of attempt to commit voluntary manslaughter, a Class D felony, and two counts of aggravated assault, Class C felonies. See T.C.A. §§ 39-13-211 (2014), 39-12-101 (2014), 39-13-102 (2014). The trial court merged the convictions into a single count of aggravated assault and sentenced the Defendant as a Range II, multiple offender to eight years to be served consecutively to a previously imposed sentence. On appeal, the Defendant contends that the trial court erred (1) by permitting the State to introduce evidence of his previous conviction and (2) by imposing consecutive service. We reverse the judgments of the trial court and remand the case for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed; Case Remanded.

          Gerald L. Melton, District Public Defender, and John Driver, Assistant Public Defender, for the appellant, Garry Baker.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Jennings H. Jones, District Attorney General; and Dana Minor and Matthew Westmoreland, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This cases relates to a domestic disturbance involving the Defendant and his stepfather, Dale Ernsberger, who sustained cuts to his arm and neck from a knife during an altercation. At the trial, Rutherford County Sheriff's Detective Jason Dowdle testified that when he arrived at the victim's home on August 15, 2014, the victim had already been taken to the hospital. He identified photographs of the scene, which included, in relevant part, the carport area where the incident occurred, the victim's wife's car reflecting a r ed substance on the driver's side door, a red substance on the driveway, and red substances on a paper towel and the deck.

         Detective Dowdle identified additional photographs, which depicted the victim at the hospital. The photographs reflect a laceration to the victim's right forearm, wounds to his left and right hands, a laceration to the left side of his neck, and a wound to his back. Detective Dowdle identified two additional photographs taken approximately five days after the incident, which reflect sutures and bruises on and around the victim's neck and forearm. Detective Dowdle identified a photograph taken inside the Defendant's bedroom at the victim's home, which reflects a red folding knife. Detective Dowdle said that the victim identified the knife as the one used to inflict his injuries.

         Detective Dowdle identified photographs of the Defendant taken at the time of the incident. The photographs reflect two small lacerations on the Defendant's chin and a red area on the Defendant's forearm. Detective Dowdle said the Defendant stated that the injuries were inflicted during the incident.

         On cross-examination, Detective Dowdle testified that the Defendant was inside the home when he arrived at the scene, that he did not question the Defendant, and that he spoke to Ms. Hicks, who was the victim's wife and the Defendant's mother. Detective Dowdle said Ms. Hicks denied witnessing the physical altercation but admitted she heard the victim and the Defendant arguing outside the home. Detective Dowdle identified a photograph showing black tire markings in the driveway and said the witness statements showed that the Defendant arrived at the victim's home, causing the tire markings, just before the altercation. Detective Dowdle agreed he did not know when the markings were made. H e said he did not submit any of the evidence for DNA analysis or analyze the red substances found at the scene to determine if they were blood.

         Detective Dowdle testified that the Defendant did not mention during his police interview that he sustained injuries to his head but that the Defendant described himself as "a cripple." Detective Dowdle said that he did not speak to the Defendant after the interview and did not look at the Defendant's injuries after the date of the incident. Detective Dowdle stated that he took photographs of ten prescription medication bottles found inside the Defendant's bedroom. Detective Dowdle said that the knife was not analyzed for fingerprints or DNA evidence and was found on a television stand in plain view. He said the victim described the knife to Detective Tillman when the victim was at the hospital.

         On redirect examination, Detective Dowdle testified that the victim was the only person who was bleeding at the scene and that nobody questioned whether the red substances were blood or whether the blood belonged to the victim. Relative to the knife, Detective Dowdle said that nobody questioned who had inflicted the victim's injuries.

         Brenda Hicks, the victim's wife and the Defendant's mother, testified that she was age seventy-two, that the incident in this case occurred at her home, and that she lived with the victim and the Defendant before the incident. She said that on the day of the incident, the Defendant and the victim were home, that the Defendant left before lunchtime with the family dog, and that the Defendant returned home around 1:00 p.m. She said that she called the Defendant while he was gone and that she left a voicemail message requesting him to bring home the dog. She said the Defendant returned her call and accused her of stealing his pain medication. She said she hung up because she knew "he was after a fuss."

         Ms. Hicks testified that the Defendant slammed his brakes when he returned home, that the victim was outside finishing yard work, and that she heard the Defendant accuse the victim of stealing the Defendant's pain medication. She said that she called the police when the Defendant raised his voice and reported a "domestic violence case" and that she warned the Defendant she was calling the police. She said the Defendant walked inside the home, stopped in the kitchen for a drink, and went to his bedroom. She said that she saw the victim walking toward the home, that she saw blood coming from the victim's chest and arm, and that she used paper towels to stop the bleeding before the police arrived.

         Ms. Hicks testified that the wheelchair ramp leading to the home was built for the Defendant, although the Defendant was not using a wheelchair, walker, or cane on the day of the incident.

         On cross-examination, Ms. Hicks testified that the Defendant began living with her and the victim on May 10, 2010, and that the Defendant and the victim did not always get along. She said that after the Defendant accused the victim of taking the medication, the victim attempted to talk to the Defendant. She agreed she did not witness the physical altercation, although she knew the Defendant was "looking for a fight" when he raised his voice.

         The victim testified that he was age eighty-one and that on the day of the incident, the Defendant returned home not long after the victim had finished mowing the lawn. The victim said that the Defendant backed his truck into the driveway quickly, almost hitting another vehicle and the carport supports. T he victim said that he asked the Defendant for the dog leash and collar, that the Defendant became upset, and that they argued. T he victim said that the Defendant accused him of stealing medication from the Defendant's truck, that the victim and the Defendant stood nose-to-nose, that the Defendant screamed, and that the victim placed his hands on the Defendant's chest and asked the Defendant to back away. The victim said the Defendant stepped back and cut the victim's arm with a knife. The victim said that after he saw he had been cut, he attempted to hit the Defendant but missed, that he walked toward the home, and that the Defendant cut the victim's jaw and neck with the knife.

         The victim testified that he shoved the Defendant after the Defendant cut his jaw and neck and that the Defendant struck the carport frame, knocking items from the Defendant's hand. The victim said that he began walking toward the home but decided to return to the driveway, that Ms. Hicks placed paper towels on his wounds to stop the bleeding, and that the police arrived shortly afterward.

         The victim testified that an ambulance took him to the hospital, that the medical staff sutured his arm but sent him to another hospital for a surgical consultation for the neck wound. He said that an ambulance took him to the second hospital, that he received several injections of medication, and that he stayed overnight for observation.

         The victim testified that he told the Defendant that he did not need the Defendant's pain medication because he had his own medication. The victim noted that he and the Defendant were prescribed the same medication and dosage from the same doctor, and the victim said that he had arthritis in his back. H e said that he was attempting to get away from the Defendant when the Defendant cut his neck.

         On cross-examination, the victim testified that he thought he had finished the yard work around noon, that the Defendant returned home around 1:00 or 1:30 p.m., and that he had washed the mower between noon and the Defendant's arrival. He said that the Defendant had the dog but that the victim did not know the Defendant had taken the dog when the Defendant left. The victim denied seeing the dog get out of the Defendant's truck but said the Defendant admitted having the dog leash and collar. The victim denied hitting the Defendant but admitted attempting to hit the Defendant after the Defendant cut the victim's arm. The victim denied attempting to hit the ...


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