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State v. Howard

Court of Criminal Appeals of Tennessee, Nashville

September 13, 2017


          Session July 19, 2017

         Appeal from the Circuit Court for Giles County No. 12576 David L. Allen, Judge.

         The Defendant, David Brian Howard, was convicted by a jury of aggravated assault, a Class C felony, and received a three-year sentence, to be served on probation. The Defendant appeals, asserting that the evidence is insufficient to uphold the verdict due to perjured testimony; that the trial court improperly refused to function as thirteenth juror to overturn his conviction; that the trial court erred in not excusing a juror who made a statement during the trial regarding defense counsel's questions to a witness; and that the trial court improperly admitted evidence during sentencing regarding an offense of which the Defendant was acquitted. After a thorough review of the record, we affirm judgment of the trial court.

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

          A. Colbrook Baddour, Pulaski, Tennessee, for the appellant, David Brian Howard.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Brent A. Cooper, District Attorney General; and Matthew Stephens and Rachel Sobrero, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.




         The Defendant was embroiled in a property line dispute with the victim, Mr. Randall Scott Hickman, and the victim's family. In the course of a confrontation, the Defendant pointed a gun at the victim, an act which was captured on video. At trial, the Defendant sought to establish that he acted in self-defense.

         The State presented the testimony of several witnesses who had been assisting the victim in erecting a fence at the time of the confrontation. The victim testified that at the time of the assault on June 14, 2014, he had only lived in his home for a few months and that the Defendant and his wife lived in the neighboring house. The victim, who worked as a truck driver, had hired Mr. John Dale to put in a fence along the disputed property line, and the victim arranged for his wife's two teenage sons, Mr. Justin Gray and Mr. Lee Medley, to assist Mr. Dale in driving fence posts into the ground. Ms. Leslie[1] Travis and Ms. Shannon Brown were also present on the property.

         The victim and his wife, Ms. Wanda Diane Hickman, were inside the house while Mr. Dale, Mr. Gray, and Mr. Medley worked on the fence. The victim became aware of the dispute when Ms. Brown came in to ask Ms. Hickman to come outside. The victim heard a commotion and went outside, where he saw the Defendant holding one of the fence posts that had been put in, rocking it back and forth to try to dislodge it. The victim testified that Ms. Hickman was also holding the fence post, trying to interfere with the Defendant's actions. The victim "reached through the crowd and grabbed a hold of the fence post and told them we didn't want to do this." At that point, the Defendant pointed a gun at the victim's face from approximately eighteen to twenty inches away. The victim testified that he was afraid. The Defendant backed up and then lowered the weapon. Meanwhile, the Defendant's wife and Ms. Hickman had begun arguing. The Defendant's wife was yelling in Ms. Hickman's face, and Ms. Hickman "popped her in the mouth." The Defendant proceeded to point the gun at Ms. Hickman from about ten feet away. The victim started toward the Defendant and reached for the gun, and the Defendant again pointed the gun at the victim. The police were then summoned.

         On cross-examination, the victim agreed that he had initially testified that he grabbed the fence post, but he acknowledged that this was not true. The victim stated, "I guess I touched his hand." He clarified, "Well, I did touch the fence post, too, but I guess I put my hand on his hand[;] I pulled it off the fence post." He also acknowledged that in his statement to the police, he had written that he had pulled the Defendant's hand off the post and that the statement did not assert that he touched the post. He agreed that he had previously testified that he touched the post before admitting on cross-examination that he pulled the Defendant's hands off the post.[2] The victim stated, "I guess I was lying," and agreed that he lied again when he said during trial that he grabbed the post, but he ultimately explained, "[I]t is not a problem of me not telling the truth, it's just miswording." When the victim removed the Defendant's hand, the Defendant said, "[D]on't f'ing touch me" and jerked his hand away. The victim stated that both his family and the Defendant's family previously had called the police numerous times about disagreements over the property line. He acknowledged that there were signs in his yard but stated he did not put them up or recall what they said because he was frequently on the road as a truck driver.

         The victim identified a video of the incident, which Mr. Gray had recorded on his telephone. The victim testified that the video did not capture the initial struggle over the fence post or the first time that the Defendant pointed the gun at his head but began recording shortly before Ms. Hickman struck the Defendant's wife. The video shows the Defendant holding a gun, the participants in the confrontation making crude taunts at one another, Ms. Hickman hitting the Defendant's wife, and the Defendant raising the gun and pointing it.

         The State introduced photographs from a game camera on the victim's property which had captured still images from the confrontation. The victim testified that the camera had been placed there because the Defendant had twice before removed fence posts that the victim's family had placed on the property line. He testified that the camera would activate when it detected motion and that he gave a deputy the card which contained the pictures. He did not look at or delete the photographs prior to the time police arrived.

         Ms. Hickman testified that she had hired Mr. Dale to put up a fence and that her two sons and the victim intended to assist Mr. Dale. While Ms. Hickman and the victim were inside, Ms. Brown alerted Ms. Hickman that the Defendant was cursing at the workers. Ms. Hickman observed the Defendant come out of his home wearing gloves, and he began to try to loosen a fence post. The Defendant had removed a previous fence. Ms. Hickman grabbed the top of the post the Defendant was holding, and the victim "put his hand on top of that fence and told him, '[L]et's don't do this.'" At that point, the Defendant drew a gun and put it in the victim's face. He pointed it at Ms. Hickman and started waving the gun around. The victim tried to get the gun from the Defendant, but "he never touched [the Defendant]." Ms. Hickman stated that she was so focused on the gun that she did not recall hitting the Defendant's wife but, having watched the video, she acknowledged that she had hit her. Ms. Hickman had pled guilty to assault and was serving probation.

         Ms. Hickman acknowledged that both her family and the Defendant's family had contacted police numerous times regarding disputes. She stated she had put a sign in her yard facing the Defendant's property which said "God is good" and another sign which informed the Defendant that she had gone to a yard sale on Minor Hill and had had a great time with her friends. She explained that the impetus for the signs was the fact that the Defendant had installed a security camera facing her property and that she felt that he was spying on her. She also stated that Ms. Travis had put a sign in Ms. Hickman's yard that said something to the effect of "redneck – I don't know how she put it. Red recognize." This sign was illegible, and Ms. Hickman's response on seeing it was, "[W]hy? Why?" Ms. Hickman agreed that her family owned a red pickup truck and that at the time, it was habitually parked at her house. She did not recall any bumper stickers on her truck, which was parked "on another two acres."

         Ms. Hickman reiterated that the victim did not touch the Defendant, noting that the Defendant's hands were at the bottom of the post, Ms. Hickman's hands were above the Defendant's, and the victim's hands were above Ms. Hickman's hands, which acted as a buffer between the men. She further stated that she and the victim were divorcing and that she would not willingly lie for him. The Defendant, who was acting "like a banty rooster," also pointed the gun at her. She stated that even though the gun was pointed at her, she did not retreat inside the house.

         Mr. Gray testified that the Defendant began to curse at them when he saw that they were driving in fence posts. The Defendant returned to his house but came back out, at which point Mr. Gray went to get Ms. Hickman from the house. Mr. Gray testified that the Defendant and Ms. Hickman were struggling with the post when the victim came out and "put his hand on top of the fence post" and said, "'[L]et's not do this.'" The Defendant pulled out his weapon and pointed it "at all of us but mostly in [the victim's] face." The Defendant's wife was cursing at Ms. Hickman and crossed the property line, and Ms. Hickman struck her. Mr. Gray recorded part of the confrontation on his telephone, and he sent the video to law enforcement through email. On cross-examination, Mr. Gray reiterated that the victim grabbed the fence post and not the Defendant's hands but acknowledged that he did not see the entire interaction. He denied altering the video he sent to law enforcement and stated that police watched the video on his telephone at the scene. He acknowledged that the video did not record the entire incident. He also acknowledged that he was mocking the Defendant's wife even after the gun was drawn and that he said, "[S]mack the F out of the B." He did not recall saying to the Defendant that crazy people should not have guns, and he denied coordinating his story with his family members prior to the arrival of the police.

         Mr. Dale testified that he used the surveyor's stakes as guidelines to install the fence and that he put the fence posts approximately one foot from the property line, on the Hickmans' property. When he and Ms. Hickman's sons were driving in a post across from the Defendant's deck, the Defendant began to curse at them and said he would tear up the fence. Mr. Dale informed the Defendant that the fence was a temporary one, and the Defendant went back into his home. The Defendant again exited his home and began arguing, and Mr. Dale told Ms. Hickman's sons to continue with the work. The Defendant then began to wiggle one of the posts that had already been installed in order to remove it. Ms. Hickman came out and put her hands on the post above the Defendant's hands, and they argued. The victim then put his hands on top of the post and told them to stop. The Defendant produced a gun and pointed it at the victim, and everyone backed up. The victim reached for the gun, and the Defendant waved it at the others assembled outside. Mr. Dale testified that he turned sideways in order to try to make himself a smaller target. Ms. Hickman hit the Defendant's wife when the Defendant's wife made "kind of a charge" at Ms. Hickman.

         On cross-examination, Mr. Dale testified that he had changed the angle of the game camera a few days earlier but did not remember if he changed the angle the day of the assault. When shown pictures from the game camera, he acknowledged that the pictures reflected a change in angle during the confrontation and showed Mr. Dale walking away from the camera's viewpoint. Mr. Dale stated he had not testified to changing the angle because it was not included in his statement to the police, which he had used to refresh his memory for trial, and because the incident had happened more than a year prior to the trial. He testified that the camera was moved because the confrontation was getting heated. He denied telling the Defendant that "mental people aren't supposed to have a gun and we're going to take that away from you." Mr. Dale was "[p]retty sure" that the victim did not touch the Defendant. Mr. Dale acknowledged that he was not present in some of the still pictures of the confrontation and that he was a "significant distance" from the altercation in some photographs. He speculated that some of these were taken after the police were summoned.

         Deputy Matt King of the Giles County Sheriff's Department arrived at the scene and interviewed the witnesses at the Hickman home. He then interviewed the Defendant and his wife. The Defendant stated that he was "in fear of being pulled across the property line and not knowing what they were going to do to him." From prior calls to the residence, Deputy King knew that the Defendant had a video surveillance system and asked to see it. The Defendant told him it was not recording. When Deputy King stated he wanted to see the system anyway, the Defendant showed him a monitor with a graph summarizing the operation of the system. This graph contained periods of time which were shaded black or gray to indicate lapses in recording. When Deputy King looked at the time of the incident, there was a "larger area that was blocked out and it was the whole entire time frame of the incident." He left the Defendant and his wife forms to allow them to make written statements, and he picked up the forms at a later time. Deputy King charged Ms. Hickman with assault and the Defendant with aggravated assault, and he collected the Defendant's weapon, which was loaded with a round in the chamber.

         Deputy King testified that he did not know why the surveillance system did not record, but he stated that the other lapses in the system appeared to be smaller than the lapse which encompassed the assaults. He testified that the game camera was motion activated and he could not explain the intervals at which it took pictures. He did not know how Mr. Gray's video recording was collected, but he testified that he viewed the recording on Mr. Gray's telephone and that it was the same as the recording introduced at trial. Deputy King further testified that all of the witnesses at the Hickman house told him that the victim had put his hands only on the post. The victim's oral statement differed from his written statement, in which he stated he grabbed the Defendant's hand. Deputy King affirmed that the Defendant stated he was grabbed and pulled and was in fear when he produced the gun. Defense counsel then asked Deputy King several questions regarding whether he found it "odd" that the witnesses from the Hickman home all stated that the victim did not touch the Defendant but that the victim had testified that he did grab the Defendant.

         The State then rested its case and the trial court decided to allow the jurors to take a break. The following exchange then occurred:

JUROR []: How much longer is this going to take?
THE COURT: I don't know. Let me ask you. Thank you. Are there time constraints that you are dealing with…?
JUROR []: No.
THE COURT: Okay. Good.
JUROR []: He keeps asking the same thing over and over 40 ...

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