Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 18, 2017 at Knoxville
from the Circuit Court for Rutherford County No. F-72659
David M. Bragg, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Reversed; Case Remanded.
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
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
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.
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.
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.
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.
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.
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.
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."
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.
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
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.
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.
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.
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.
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.
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 ...