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State v. Parker

Court of Criminal Appeals of Tennessee, Nashville

June 26, 2018


          Session January 17, 2018

          Appeal from the Circuit Court for Coffee County No. 38656 L. Craig Johnson, Judge

         Defendant, 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.

         Tenn. 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 Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert. L. Holloway, Jr., J., joined.



         Factual and Procedural Background

         In June 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.

         After a 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.[1] Eventually the trial court implored both parties to look into the matter and said, "You may have to choose aggravated assault or domestic assault."

         Around 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 assault."

         Around 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 trial.

         After 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."

         The State's Proof

         The 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.

         On 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

          Sonic 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.[2] 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."

         Once 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 the door.

         Instead 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.

         After 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 incomplete.

         Once 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 ...

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