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State v. Day

Court of Criminal Appeals of Tennessee, Knoxville

July 27, 2017


          Session February 22, 2017

         Appeal from the Circuit Court for Anderson County No. B2C00571 Donald R. Elledge, Judge

         The defendant, Charles Edward Day, appeals his Anderson County Circuit Court jury conviction of reckless aggravated assault, claiming that the trial court erred by admitting certain evidence at trial, that the State committed prosecutorial misconduct during closing argument, that the evidence was insufficient to support his conviction, that the sentence imposed was excessive, and that the cumulative effect of these errors prevented him from receiving a fair trial. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

          Tom Marshall, Assistant District Public Defender, for the appellant, Charles Edward Day.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.



         The Anderson County Grand Jury charged the defendant with one count of the aggravated assault of the victim, Toni Roberts. The trial court conducted a jury trial in March 2015.

         The State's proof at trial established that the victim was working as a registered nurse in the Intensive Care Unit ("ICU") of Methodist Medical Center ("MMC") on the night of June 8, 2012. On that date, the defendant was an ICU patient at MMC. At some point that evening, the victim saw the defendant loudly arguing with his ICU nurse, Alexander Pierce; the victim was unsure, but she believed that the defendant was wearing restraints during the argument. Mr. Pierce recalled that the defendant had experienced periods of agitation and restlessness earlier in the evening. Shortly before midnight, the victim observed the defendant standing by his hospital bed and attempting to free himself from his wrist restraints. The victim informed Mr. Pierce of the situation, and Mr. Pierce entered the defendant's hospital room to instruct the defendant to return to the bed. Mr. Pierce testified that, despite the defendant's agitation, the two were still able to communicate clearly, and he stated that the defendant understood the directions he was given. During this time period, the victim "heard some commotion and some cussing and some struggling, " and she and other nurses, including Katherine McDowell, entered the room to assist. Ms. McDowell recalled that the defendant was behaving "[v]ery aggressive[ly]."

         Because the defendant had managed to position his entire body near the foot of the bed, Mr. Pierce and Ms. McDowell attempted to reposition the defendant while the victim stood at the foot of the bed as "backup." The defendant was "cussing, threatening, [and] saying obnoxious things to everyone" during this process. As soon as the defendant's wrist restraints were removed to reposition him, the defendant, while jerking his arms back and forth, lifted his legs, looked the victim "dead in the eye, " and kicked her below her chin. Both Mr. Pierce and Ms. McDowell witnessed the defendant's kicking the victim in the face. The force of the impact caused the victim's body to go airborne, and she landed on her left side 15 to 20 feet away near the nurses' station. She immediately experienced "excruciating pain" in her hip, pelvic area, and legs before her legs "went numb." At that point, she believed that she was paralyzed. Unable to stand, she was transferred to a wheelchair and taken to the emergency department. The victim saw a specialist for her injuries and was out of work for four months before returning on light duty for two months.

         Mr. Pierce confirmed that ankle restraints were not placed on the defendant until after he had kicked the victim, and Ms. McDowell testified that she overheard the defendant say that he "wasn't meaning to kick [the victim]" but he "was trying to kick that big guy."

         Officer Max Smith testified that, on June 9, 2012, he was working for the Oak Ridge Police Department when he was dispatched to MMC shortly after midnight to investigate an assault. Officer Smith observed the victim in the emergency department and saw that she was "physically shaken" and "emotionally disturbed." When Officer Smith visited the defendant in his ICU room, he asked the defendant what had happened, and the defendant responded that "he had done something bad, " that he "thought it was a man and not a woman, " and that "he hope[d] she's okay." Officer Smith testified that the defendant seemed "sleepy" but that he had no trouble communicating with him. On cross examination, Officer Smith conceded that he saw no visible physical injuries to the victim.

         Doctor Michael O'Brien, an orthopedic surgeon, testified as an expert witness in the field of orthopedic surgery and orthopedics. Doctor O'Brien treated the victim following her injury and ordered two magnetic resonance imaging ("MRI") tests. His review of the MRIs revealed that the victim's pelvis was broken in three places and that her abductor tendon was torn. Doctor O'Brien stated that such injuries are "usually quite painful" and cause difficulty in walking and sleeping. With respect to her recovery time, Doctor O'Brien testified that the victim's bones had healed by December 2012 but that she was still experiencing residual pain. Doctor O'Brien described the injury as "serious" and stated that it was "consistent" with the victim's description of the defendant's assault. Doctor O'Brien conceded that the victim was suffering from osteoporosis at the time of her injury, which would cause her to be more susceptible to broken bones, but he stated that the osteoporosis would not have slowed the victim's healing process and would likely not have contributed to the victim's torn tendon.

         With this evidence, the State rested. Following the trial court's denial of the defendant's motion for judgment of acquittal and a Momon colloquy, the defendant elected to testify and to put on proof.

         Diane Day, the defendant's mother, testified that the defendant was taken to a Loudon County hospital in June 2012 following "an overdose" and that he was later transferred to the ICU at MMC. Ms. Day was "pretty sure" that she had visited the defendant on June 8 at 3:30 p.m. and that he was "not himself." When Ms. Day asked the defendant what he was doing that day, the defendant had responded that he was "just shopping here at Walmart picking up a few things for the girls." Ms. Day also believed that, based on his behavior, the defendant did not recognize her or other family members who visited him that day.

         Sharon McClain, the defendant's fiancée, testified that she visited the defendant at 5:30 p.m. on June 8 and that he did not appear to recognize her.

         The defendant testified that he had overdosed on Seroquel and Vicoplin. The defendant clarified that he had been prescribed Vicoplin but not Seroquel. The defendant testified that he recalled taking both medications and "walking over to the garbage can" on June 3 and that he recalled nothing until he awoke in the hospital on June 11. The defendant remembered nothing about his time in the ICU and did not recall kicking the victim. The defendant stated that he "was shocked" and "felt bad" when he learned what he had done because he "[doesn't] act like that."

         Doctor Edgar Diaz, a hospitalist with MMC and Roane Medical Center, testified as an expert witness in the field of internal medicine and hospital medicine. Doctor Diaz first encountered the defendant on June 10 when the defendant was moved out of ICU to a regular hospital room. Doctor Diaz diagnosed the defendant as suffering from acute encephalopathy, which he defined as confusion or a lack of orientation "to self, to what time it is, to what day it is." To treat the defendant, Doctor Diaz prescribed Librium, a sedative typically used "to alleviate withdrawal symptoms, " and Dilantin, an anti-seizure medication. Doctor Diaz discharged the defendant "two or three days" later, deeming him medically able to return home.

         On cross-examination, Doctor Diaz acknowledged that the defendant's discharge summary from Loudon Medical Center indicated that the defendant's urine screen was positive for cocaine, marijuana, and opiates. Doctor Diaz agreed that the MMC discharge summary stated that the discharging physician "'after a thorough evaluation of patient and patient's history, did concur that the patient's symptomatology was most likely secondary to poly substance abuse, slash, overdose, slash, withdrawal.'" Doctor Diaz agreed that the summary indicated that the defendant's medical issues were due in part to an overdose and withdrawal from narcotics.

         On redirect examination, Doctor Diaz stated that Seroquel was an anti-psychotic medication primarily used to treat bipolar disorder and that the defendant suffered from bipolar disorder. With respect to the symptoms of withdrawal following an overdose of Seroquel, Doctor Diaz opined that patients could be "very agitated, their heart rate can be high, [and] blood pressure would be high." Doctor Diaz also agreed that a patient experiencing withdrawal symptoms typically would be "resistant and hostile and combative" prior to receiving sedatives.

         Based on this evidence, the jury convicted the defendant of the lesser included offense of reckless aggravated assault. Following a sentencing hearing, the trial court sentenced the defendant as a standard offender to a term of four years' incarceration. Following the denial of his timely motion for new trial, the defendant filed a timely notice of appeal.

         In this appeal, the defendant contends that the trial court erred by admitting certain evidence at trial, that the State committed prosecutorial misconduct during closing argument, that the evidence was insufficient to support his conviction, that the sentence imposed was excessive, and that the cumulative effect of these errors prevented him from receiving a fair trial. We will address each issue in turn.

         I. Admission of Witness Testimony

         The defendant first contends that the trial court erred by permitting Doctor Diaz to testify about the defendant's prior illegal drug use.

         Outside the presence of the jury, the prosecutor questioned Doctor Diaz about the notes in his discharge summary, which indicated that the defendant's urine screen, upon his admission to MMC, was positive for cocaine, carotenoids, and opiates. Doctor Diaz confirmed that his evaluation of the defendant's history convinced him that the defendant's "symptomatology . . . was likely secondary to the poly substance abuse, overdose and withdrawal." At the conclusion of this testimony, the prosecutor argued that this testimony should come before the jury both as evidence of the defendant's voluntary intoxication and his lack of credibility in that he had failed to mention having taken cocaine and marijuana prior to his June 3 overdose. Defense counsel responded that such testimony was improper evidence of prior bad acts under Tennessee Rule of Evidence 404(b). The trial court ruled as follows:

[The defendant] said he took two medications; one with prescription and one without. Nowhere did he mention [c]ocaine or cannabis, nowhere. And, to me, especially when he's up here and we have testimony of statements that he has made that he didn't mean to kick the woman, he was trying to kick the man and the knowledge. And then when he testifies that he doesn't remember anything about this and he testifies that he had a prescription for one of these drugs and said that to the trier of fact and just happens to omit the fact that he says [c]ocaine and cannabis. I think that strongly goes to the issue of credibility. Strongly goes to the issue. Because the witnesses that we have in support of him [are] his mother and his fiancé[e]. And the jury will take whatever decision that they believe is appropriate based upon the relationship that they have and their own ability to ...

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