Court of Criminal Appeals of Tennessee, Nashville
Session January 17, 2018
from the Circuit Court for Coffee County No. 38656 L. Craig
Dexter Octavius Parker, was indicted for attempted first
degree murder in Count One, "aggravated domestic
assault" in Count Two, and especially aggravated
kidnapping in Count Three. After a jury trial, Defendant was
convicted of attempted second degree murder in Count One,
aggravated assault in Count Two, and especially aggravated
kidnapping in Count Three. He received a total effective
sentence of forty-six years. On appeal, Defendant argues that
the trial court improperly excluded the conclusion of one
expert witness while allowing the conclusion of another
expert witness regarding Defendant's mental state.
Defendant also argues that the trial court erred by
reinstating and amending Count Two of the indictment after
dismissing it during the trial. Concluding that the trial
court committed structural constitutional error by
reinstating Count Two of the indictment, we reverse and
vacate the judgment in Count Two and affirm the judgments in
Counts One and Three.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Reversed and Vacated in part and Affirmed in part.
Jeffrey E. Schofill, Tullahoma, Tennessee, for the appellant,
Dexter Octavius Parker.
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Craig Northcott,
District Attorney General; and Kristy West, Assistant
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert. L. Holloway, Jr.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
of 2011, a Coffee County Grand Jury indicted Defendant for
attempted first degree murder in Count One, "aggravated
domestic assault" in Count Two, and especially
aggravated kidnapping in Count Three. A jury trial commenced
on October 1, 2013. On the first day of trial, the trial
court sought clarification on Count Two of the indictment.
Count Two of the indictment stated:
THE GRAND JURORS OF COFFEE County, Tennessee, duly impaneled
and sworn, upon their oath, present that DEXTER OCTAVIUS
PARKER on the Day of [M]arch, 2011, in COFFEE County,
Tennessee, and before finding of this indictment, unlawfully,
intentionally and knowingly did assault [the victim], causing
bodily injury to the said victim while using or displaying a
deadly weapon, to wit, A BROKEN GLASS BOTTLE, as used said
offense being a Domestic Assault in violation of T.C.A.
39-13-102(a)(2)(A) and T.C.A. 39-13-111, and against the
peace and dignity of the State of Tennessee.
recess following the direct examination of the victim, the
trial court said, "I have searched and searched and
searched and tried to put it together, and maybe you can help
me. Aggravated domestic assault, what do you mean by
that?" The State replied, "An aggravated assault
and then coupled with the domestic assault - domestic statute
in that there is a relationship between the parties."
The trial court responded, "I am not sure that is an
offense. I have looked at the statutes, and there is domestic
assault. . . . I don't know that there is such a thing as
aggravated domestic assault." The State agreed that
there was no specific statute for aggravated domestic
assault, but indicated its intention to prohibit
Defendant's possession of firearms by introducing the
domestic assault aspect to the charge. Eventually the
trial court implored both parties to look into the matter and
said, "You may have to choose aggravated assault or
10:10 a.m. on the second day of trial, the trial court asked,
"Is there such a crime as aggravated domestic
assault?" Defense counsel argued that neither aggravated
domestic assault nor "T.C.A. §
39-13-102(a)(2)(A)" as cited in the indictment existed.
The State argued that the indictment was clear as to the
actions committed by Defendant and that the subsection of the
statute referenced in the indictment was a clerical error.
The State specifically mentioned State v. Wade
Tyler, No. M2009-01762-CCA-R3-CD, 2011 WL 300145 (Tenn.
Crim. App. Jan. 21, 2011), perm. app. denied (Tenn.
Aug. 5, 2011), and argued that the incorrect citation to the
statute in the indictment did not render it invalid.
Eventually, the trial court made the State elect which
offense that it wanted to pursue, and the State chose to
pursue aggravated assault. The trial court then ruled that
even though the word "domestic" was used in the
indictment and the citation was incorrect, the indictment was
"clear that he is being charged with aggravated
9:00 a.m. on the third day of trial, defense counsel brought
the indictment issue up to the trial court before questioning
began for the day. Defense counsel argued that Rule 7(b)(2)
of the Tennessee Rules of Criminal Procedure forbade the
trial court from amending the indictment without consent of
the Defendant after jeopardy had attached. Defense counsel
went on to argue that Count Two of the indictment was
duplicitous, and thus should have been dismissed. The trial
court acknowledged that the original indictment was
duplicitous and that the trial court could not amend the
indictment after jeopardy had attached. After a long
discussion, the trial court finally concluded that the
indictment charged the elements of two different crimes that
would probably have to be merged for sentencing. The trial
court dismissed Count Two of the indictment. Defense counsel
asked the trial court to inform the jury of the dismissal of
Count Two, but the trial court decided to hold off on
informing the jury of the decision until the end of the
the mid-morning break that same day, the trial court informed
the parties that it had conducted some research, reevaluated
the indictment, and recanted the earlier ruling. The trial
court only dismissed the "domestic enhancer"
portion of Count Two and left the remainder of the indictment
intact. The trial court said, "I believe the defendant
was clearly provided ample notice of the offense charged,
that being aggravated assault including the facts that
constituted the offense, his name, and the date of the
alleged offense, so with that said, the Court is not
dismissing the entire indictment."
following narrative of events is derived from the testimony
of the State's witnesses. In March of 2011, Defendant
lived with the victim and her two young children in Coffee
County, Tennessee. Defendant and the victim had been dating
for around five months, and their relationship was tumultuous
and abusive. Prior to this incident, Defendant had slapped
the victim, choked the victim on three separate occasions,
and cut the victim with a box cutter while she slept. Each
time these abuses occurred, Defendant had been drinking.
March 18, 2011, Defendant drove the victim to Sonic and
dropped her off for work at around 7:00 a.m. At that time,
Defendant was still "drunk from the night before and on
cocaine." Defendant and the victim had stayed up all
night drinking and partaking in cocaine. The victim could not
sleep because Defendant "kept crawling around on the
floor with a stick . . . [and l]ooking out the window."
During the day, Defendant drove to
with the victim's children four or five times. The victim
told Defendant to take the children to daycare, but Defendant
kept the children with him. Defendant eventually locked the
only set of keys inside the car at the victim's house.
The victim called her mother to pick her up from work and a
locksmith to unlock the car. Once the car was unlocked,
Defendant, the victim, and her two children when to the
victim's mother's house to drop off her oldest son.
After that, Defendant, the victim, and her youngest son went
to the liquor store. Defendant took money given to him by the
victim and purchased a bottle of liquor. Next, they all went
to Hastings and rented the movie Avatar. While in the car,
Defendant and the victim had no arguments. However, the
victim noted, "He was just still like up on cocaine from
the whole day and night before. . . . He was, I guess,
geeked." According to the victim, a person is
"geeked" when they are "[h]igh, looking out
the window, [and] paranoid."
back at the victim's house, they watched Avatar in the
living room while the victim attempted to get her son to
sleep. When speaking about the movie Avatar, the victim
described the characters as "Giant Lizards" that
were "blue." She remembered one of the "giant
lizards" falling in love with a girl and there being
"fighting" in the movie. During the movie,
Defendant indicated to the victim that he wanted her to
perform oral sex on him, but the victim did not want to. When
the victim declined to perform oral sex on Defendant, he
"got a little bit mad." He continued his requests
until the victim explained that she was trying to get her son
to sleep. Once her son was asleep, she moved him to the
couch. Defendant and the victim then snorted "a little
bit" of cocaine "once or twice." The victim
also smoked an approximately seven inch long marijuana
"blunt" at some point during the night. Defendant
then suggested that he and the victim move the television
into the bedroom. An argument broke out over shutting the
door to the bedroom. Finally, the victim relented and shut
of watching the movie, Defendant told the victim, "Get
against the wall and put your hands up." The victim
complied. Defendant poured the contents of a liquor bottle on
the floor. He then held the bottle upside down and began
hitting the victim in the head with it. The victim tried to
go out the door, but Defendant shut the door. The victim
asked for Defendant to let her out, but Defendant would not
allow her to leave. Defendant hit the victim approximately
twenty times with the liquor bottle before the victim knocked
the bottle away. Defendant then began punching her in the
face. As Defendant beat her, the victim told him to stop and
that she loved him. She asked, "Why are you doing this
to me?" Defendant never replied. Defendant picked up the
liquor bottle and began hitting the victim in the head, back,
and legs. By this point, the victim was sitting down in the
corner of the room. She began crawling and stood up. As she
was crawling, Defendant continued to hit her. She went for
the door, but Defendant placed a hand on the door and would
not let her leave. At some point, Defendant broke the liquor
bottle by hitting the television and the wall, and the lights
were turned off. Defendant started cutting the victim with
the broken bottle, saying "he was going to kill
everybody, but he was going to kill [the victim] first."
The victim said that she was "bleeding to death."
The victim suffered wounds to her head, face, legs, and arms.
The victim "couldn't breathe" and "blood
was coming from everywhere in [her] body." The victim
believed Defendant was going to kill her. At some point, the
victim grabbed a dresser drawer and tried to hit Defendant
with it. The victim climbed on top of the nightstand and
grabbed a CD player. She hit, or attempted to hit, Defendant
with the CD player a "couple" of times, and then,
tried to break out the window in the bedroom. The CD player
only made a small hole in the window. To get away from
Defendant, the victim jumped out the window. This attack took
place over thirty to forty minutes.
she escaped through the window, the victim ran to her
neighbor's house. Billy Denby lived in the house next
door to Defendant and the victim at the time of the attack.
The victim knocked on Mr. Denby's door in the early
morning hours. When he came to the door, the victim decided
to lie down on the neighbor's porch. At the time, the
victim felt "like [she] was dying." Mr. Denby
recalled blood spattering everywhere when the victim knocked
on the door. Mr. Denby called the police, put on his shoes,
and went outside. Once outside, he noticed the victim was
completely naked and "cut all to pieces." Mr. Denby
and his wife fetched the victim a blanket and covered her
until the police arrived. The victim repeated, "He's
going to kill me. He's trying to kill me." While the
victim was on Mr. Denby's porch, the police arrived. The
victim told the police that her son was still in the house,
and they put the victim inside an ambulance. The victim's
memory of the details after jumping out the window was
transported to the hospital, the victim underwent surgery for
her injuries. Multiple injuries suffered by the victim
required stitches or plastic surgery. Pictures of the
injuries all over the victim's body were shown to the
jury. Dr. Paul Haidak reviewed the victim's injuries. He
opined that some of the deeper and more serious injuries were
caused by Defendant and not by jumping through the window.
Dr. Haidak was unable to ...