State of Tennessee v. Deangelo Thompson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2012

STATE OF TENNESSEE v. DEANGELO THOMPSON

Direct Appeal from the Criminal Court for Shelby County

No. 11-00903 John Fowlkes, Judge

No. W2011-02597-CCA-R3-CD - Filed March 28, 2013

Defendant, Deangelo Thompson, appeals from his conviction in the Shelby County Criminal

Court for reckless aggravated assault as a lesser-included offense of aggravated assault.

Defendant was sentenced by the trial court as a Range II multiple offender to five years

incarceration. In this direct appeal, Defendant asserts that the evidence at trial was

insufficient to support his conviction; that the trial court erred by sentencing him to five years

in confinement for his conviction; and that certain comments and questions by the trial court

constitute plain error. Finding no error, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE

and R OGER A. P AGE, JJ., joined.

Ruchee J. Patel, Memphis, Tennessee, for the appellant, Deangelo Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Facts

Deputy Eric Newton, of the Shelby County Sheriff’s Office, was on duty as a

courtroom deputy on November 10, 2010. He was assigned to the “podium officer position,”

and Deputy Arthur Woody was assigned to escort inmates in and out of the courtroom.

Deputy Newton testified that Defendant was in the courtroom on that day to request that the

trial court recall a warrant for his arrest. When the trial judge denied Defendant’s request

and ordered that he be taken into custody, Defendant “became a little irate, loud and he began

screaming obscenities in the courtroom.” Deputy Newton testified that Defendant was

“[c]ursing loudly” and “yelling.” Deputy Newton asked Deputy Mark Thompson to assist

Deputy Woody in escorting Defendant out of the courtroom. Deputy Newton testified that,

“maybe a couple of minutes later,” he received a call from Deputy Thompson that Deputy

Woody had been injured. When Deputy Newton arrived at the jail tunnel, he saw Deputy

Woody “lying on the floor in tears.” Deputy Newton testified that Deputy Woody’s kneecap

appeared to be out of place, and he was in “severe pain.” Defendant had already been

escorted to the holding area.

Deputy Arthur Woody testified that when the trial judge denied Defendant’s request

to have the arrest warrant recalled and ordered him into custody, Defendant became “real

agitated.” While court was in recess, Deputy Woody led Defendant out of the courtroom and

into the tunnel area between the courthouse and the jail. Deputy Woody testified that

Defendant “had calmed down,” and he was not handcuffed. As they exited the courtroom,

Defendant ran. Deputy Woody ran after Defendant and “caught him downstairs because he

turned and went the wrong way[.]” Deputy Woody directed Defendant to put his hands

against the wall, and he handcuffed him. Deputy Woody testified Defendant “became very

angry with me and he started struggling.” Defendant was “ranting and raving,” and he told

Deputy Woody, “I’m going to kill you when I see you on the street.” Deputy Thompson

arrived to assist Deputy Woody, and they took Defendant by the arms and led him through

the hallway. Deputy Woody testified that Defendant then “rammed [him] against the wall

and [they] both fell.” Defendant fell on top of Deputy Woody, and Deputy Woody’s left

knee hit the concrete floor. When he stood up, his “leg gave away, and [he] went back down

to the floor.” He tried again but was still unable to stand. Deputy Woody thought his leg

was broken. He was taken to the hospital. He underwent surgery for a torn tendon. He

returned to work on January 29, 2011, but he was limited to “light duty.” He was able to

return to “regular duty” on June 2, 2011. He testified that he still had some pain in his knee

at the time of trial.

Officer Anthony Jones worked in the jail division and was assigned to the court

tunnel. He testified that he heard “loud noises” coming from the hallway. He then saw

Deputy Woody and Defendant “having words and they started up toward the hall” toward

him. Defendant was handcuffed, and “he was a little irate and was turning trying to jerk

away from Deputy Woody.” Jones saw Defendant “turn[ ] and spin[ ] Officer Woody up

against the wall and they fell.” He and Deputy Thompson lifted Defendant off Deputy

Woody and escorted Defendant to the jail. He testified that Deputy Woody “was in anguish.

He was in pain.”

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Deputy Mark Thompson was in the courtroom when Deputy Woody escorted

Defendant out of the courtroom door “leading to the stairwell going to the tunnel.” He

testified, “[T]he next thing I heard was Officer Woody saying, ‘Quit running. Stop.’” He left

the courtroom to assist Deputy Woody. When he got to them, he saw Deputy Woody putting

handcuffs on Defendant. Defendant was “agitated.” He testified that as they walked toward

the jail, Defendant “threw himself into Deputy Woody which caused both of them to go into

the wall” and “they both ended up going down and hitting the ground.”

The defense called Judge Louis Montesi to testify. Judge Montesi testified that he

recalled officers bringing to his attention that there was a warrant for Defendant’s arrest. He

testified that when he ordered that Defendant be taken into custody, Defendant “became very

upset and very angry and very loud.” Defendant yelled profanity in the courtroom.

Sentencing hearing

At the sentencing hearing, a presentence report was admitted into evidence.

Defendant’s father testified that he was the program director for Mid-South Health Med. He

testified that Defendant could live with him if Defendant was released on probation and that

he could provide Defendant opportunities for community service through the facility where

he (Defendant’s father) worked. He described Defendant as “a caring person.”

At the conclusion of the sentencing hearing, the trial court classified Defendant as a

Range II multiple offender. The court considered the facts at trial, the sentencing hearing

and the presentence report, which indicated that Defendant’s “criminal history [wa]s

extensive.” The court declined to apply two enhancement factors, Tenn. Code Ann. § 40-35-

114(6) and (19), and did not apply any mitigation factors.

Sufficiency of the Evidence

Defendant contends that the evidence at trial was insufficient to support his

conviction. Specifically, Defendant asserts that there was insufficient evidence that the

victim suffered serious bodily injury.

When an accused challenges the sufficiency of the evidence, an appellate court’s

standard of review is whether, after considering the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000).

This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or

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a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d

389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this court should not re-weigh or

re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 199 Tenn. 298,

286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility of the witnesses,

the weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This court must afford the State the

strongest legitimate view of the evidence contained in the record, as well as all reasonable

inferences which may be drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191

(Tenn. 1992). Because a verdict of guilt against a defendant removes the presumption of

innocence and raises a presumption of guilt, the convicted criminal defendant bears the

burden of showing that the evidence was legally insufficient to sustain a guilty verdict. Id.

A conviction for reckless aggravated assault requires proof beyond a reasonable doubt

that the defendant recklessly caused serious bodily injury to another. Tenn. Code Ann. § 39-

13-102(a)(2) (2010 Repl.). “Serious bodily injury” is defined as bodily injury that involves:

(A) A substantial risk of death;

(B) Protracted unconsciousness;

(C) Extreme physical pain;

(D) Protracted or obvious disfigurement; or

(E) Protracted loss or substantial impairment of a function of a bodily

member, organ or mental faculty[.]

Tenn. Code Ann. § 39-11-106(a)(34) (2006). “Bodily injury,” is defined to “include[ ] a cut,

abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment

of the function of a bodily member, organ, or mental faculty.” Id. at § 39-11-106(a)(2).

Concerning these definitions, this court has stated:

While the phrase “serious bodily injury” . . . is not susceptible to precise

legal definition, it must describe an injury of a greater and more serious

character than that involved in a simple assault. The distinction between

“bodily injury” and “serious bodily injury” is generally a question of fact for

the jury and not one of law.

State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).

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Defendant relies on State v. Sims, in which this court held that the evidence of the

victim’s injuries were insufficient as a matter of law to support a finding of serious bodily

injury based on extreme physical pain or protracted or obvious disfigurement. 909 S.W.2d

46, 49-50 (Tenn. Crim. App. 1995), abrogated on other grounds by State v. Charles Justin

Osborne, No. 01C01-9806-CC-00246, 1999 WL 298220 (Tenn. Crim. App., at Nashville,

May 12, 1999). In Sims, the victim was struck in the face with a pistol one time. Id. at 48.

As a result, she had a broken and swollen nose, a bruised cheekbone, two black eyes, and a

cut across the bridge of her nose.” Id. She testified that she experienced extreme physical

pain in her face and nose. The victim was treated during a hospital visit that lasted

approximately two hours and prescribed pain medication. She testified that she consulted

a plastic surgeon but did not undergo surgery for her injuries. She missed five weeks of work

due to her injuries.

Interpreting the statutory meaning of “extreme physical pain,” this court reasoned,

“[w]e do not believe that the pain commonly associated with a broken nose is extreme

enough to be in the same class as an injury which involves a substantial risk of death,

protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment

of the use of a bodily member, organ or mental faculty.” Id. at 49. The court acknowledged

“the difficulty of quantifying or measuring pain” and concluded that the evidence was

insufficient to support the element of serious bodily injury based on extreme physical pain

or protracted or obvious disfigurement. Id. at 49-50.

Since our decision in Sims, this court has applied its holding to various other injuries

sustained by victims in physical altercations and concluded that the subjective nature of pain

is a question of fact to be determined by the trier of fact. State v. Eric A. Dedmon, No.

M2005-00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App., Feb. 23, 2006), no

perm. app. filed; see State v. Ryan Love, No. E2011-00518-CCA-R3-CD, 2011 WL 6916457,

at *4 (Tenn. Crim. App., Dec. 28, 2011), no perm. app. filed (victim suffered “serious bodily

injury” where victim had severe injuries to his face, including cuts and bruises throughout,

a right eye which was swollen shut, and a swollen left eye); see State v. Holly Lack Earls,

No. 01C01-9612-CC-00506, 1998 WL 15896, at *7 (Tenn. Crim. App. Jan. 16, 1998)

(diabetic victim sustained serious bodily injuries including a broken finger, a broken arm

requiring a metal plate, injuries to his shoulder, legs, and ankles, loss of “a lot of blood,” was

in pain “for a long time,” and was hospitalized “for a couple of days”); see also State v.

Darren Matthew Lee, No. M1999-01625-CCA-R3-CD, 2000 WL 804674, at *4 (Tenn. Crim.

App. June 23, 2000), perm. app. denied (Tenn. Dec. 11, 2000) (victim kicked “repeatedly”

in the face, resulting in two black eyes, severe facial swelling and a torn lip, was unable to

work for a week, suffered headaches for three to four weeks, and suffered “extreme physical

pain”); see also State v. James Ruben Conyers, No. M2002-01007-CCA-R3-CD, 2003 WL

22068098, at *9-10 (Tenn. Crim. App. Sept. 5, 2003), perm. app. denied (Tenn. Jan. 26,

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2004) (victim suffered “serious bodily injury” when she was hospitalized for seven days with

multiple head trauma, including deep scalp lacerations, bruising and swelling of the neck,

and lost “a significant amount of blood”); State v. Chester Dale Gibson, No. M2005-01422-

CCA-R3-CD, 2006 WL 770460, at *11 (Tenn. Crim. App. Mar. 24, 2006), perm. app. denied

(Tenn. Aug. 28, 2006) (victim suffered repeated blows to the face causing fractures to the

nasal and eye area, two black eyes, a bruise to the right temple, a bruised lip and swollen and

bloody nose, and was in “extreme physical pain”).

Defendant also relies upon our supreme court’s decision in State v. Farmer, 380

S.W.3d 96 (Tenn. 2012), in which the court clarified the definition of serious bodily injury

and held that a gunshot wound does not necessarily cause bodily injury that involves “a

substantial risk of death.” In that case, the victim was shot in the leg. The bullet passed

through the victim’s leg. The wound required minimal medical treatment and did not cause

the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The

court noted that hospital records classified the victim’s pain as “mild” to “moderate” and that

the victim did not testify as to the degree of pain he experienced. Id. at 101. The court

concluded that “[a] jury could not reasonably infer from [the victim]’s testimony, the hospital

records, and the nature of his injury that [the victim]’s wound involved extreme pain.” Id.

at 101-102. The court vacated the defendant’s conviction for especially aggravated robbery,

finding that the State failed to present sufficient proof of a serious bodily injury, and

modified Defendant’s conviction to aggravated robbery. Id. at 103.

In the present case, Deputy Woody testified that his “patella tendon was shredded

from here to there.” In order to repair his knee, he underwent surgery, in which the tendon

was stitched back to the bone, and he subsequently received physical therapy. He was unable

to return to work for more than two months after his injury and then was allowed only to

return to light duty until approximately seven months after his injury. Deputy Woody was

unable to stand immediately after his injury, and he described the pain in his knee as

“serious,” “extreme,” and “unbearable.” He was given pain medication when he arrived at

the hospital. Others testified that Deputy Woody “was in tears” and described his condition

as “severe pain” and “anguish.” Deputy Newton testified that Defendant’s “kneecap wasn’t

where it was supposed to be.” We distinguish Deputy Woody’s injuries from those described

in Sims and Farmer. The proof, missing in those cases, was present in this case to meet the

definition for serious bodily injury. Defendant is not entitled to relief on this issue.

Sentencing

Defendant asserts that his sentence was improper because the trial court misapplied

certain enhancement factors and failed to apply certain mitigating factors. Defendant also

asserts that the trial court erred by denying his request for alternative sentencing.

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When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.

2012). This court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id. The party challenging the sentence

imposed by the trial court has the burden of establishing that the sentence is erroneous.

Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Comments; State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

Recently, our supreme court held that the same abuse of discretion standard should

be applied to the manner of service of a sentence, which includes the grant or denial of

probation. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). When determining if

confinement is appropriate, the trial court should consider whether (1) confinement is

necessary to protect society by restraining a defendant who has a long history of criminal

conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to people likely to

commit similar offenses, or (3) measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant. Tenn. Code Ann. §

40-35-103(1)(A)-(C) (2010 Repl.). The trial court may also consider a defendant’s potential

or lack of potential for rehabilitation and the mitigating and enhancement factors set forth

in Tennessee Code Annotated sections 40-35-113 and -114. Tenn. Code Ann. §§

40-35-103(5) (2010 Repl.), -210(b)(5) (2010 Repl.); State v. Boston, 938 S.W.2d 435, 438

(Tenn. Crim. App. 1996). The sentence imposed should be the least severe measure

necessary to achieve the purpose for which the sentence is imposed. T.C.A. § 40-35-103(4).

The burden of demonstrating the suitability for full probation rests with the defendant. Tenn.

Code Ann. § 40-35-303(b) (2010 Repl.).

Unless a trial court “wholly depart[s] from the 1989 Act, as amended in 2005[,]”

misapplication of enhancement or mitigating factors does not invalidate a sentence. Thus,

a maximum sentence within the appropriate range, in the total absence of any applicable

enhancement factors, and even with the existence of applicable mitigating factors, should be

upheld as long as there are reasons consistent with the statutory purposes and principles of

sentencing. Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345-46 (“Similarly, if the trial

court recognizes and enunciates several applicable mitigating factors, it does not abuse its

discretion if it does not reduce the sentence from the maximum on the basis of those

factors.”).

Defendant contends that the trial court should not have found that Defendant had a

previous history of criminal convictions or criminal behavior in addition to those necessary

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to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1), and that the trial court

should have mitigated his sentence by finding that his physical condition of being handcuffed

significantly reduced his culpability for the offense and that he acted under duress.

Defendant also asserts that the trial court erred by denying his request for an alternative

sentence.

Defendant was classified by the trial court as a Range II offender, and he does not

challenge that classification on appeal. Defendant was convicted of reckless aggravated

assault, a Class D felony. Tenn. Code Ann. § 39-13-102(a)(2). Therefore, the appropriate

sentencing range was not less than four nor more than eight years. Tenn. Code Ann. § 40-35-

112(b)(4). The trial court imposed a sentence of five years, one year above the minimum

sentence within the range. The trial court relied upon Defendant’s previous history of

criminal convictions or criminal behavior in addition to those necessary to establish the

appropriate range. See Tenn. Code Ann. § 40-35-114(1). Defendant contends that the trial

court’s reliance on this factor was misplaced because his criminal record consists only of

misdemeanors, other than the two felonies used to enhance his range. However, a trial court

may apply this factor based solely on a prior history of misdemeanor convictions. see State

v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App. 1995); see also State v. Seals, No.

E2008-02178-CCA-R3-CD, 2010 WL 3384978, at *6 (Tenn. Crim. App. Aug. 27, 2010).

The presentence report in this case shows that Defendant’s prior criminal history includes

convictions for drug offenses, driving while his license was suspended or revoked, theft of

property, failure to appear, and attempted burglary of a building. The trial court’s reliance

on this factor was proper. Moreover, as noted above, under our supreme court’s ruling in

Bise, even a trial court’s “misapplication of enhancement or mitigating factors does not

invalidate a sentence.” Bise, 380 S.W.3d at 706.

In denying Defendant’s request for alternative sentencing, the trial court again noted

Defendant’s extensive criminal history. The court also noted that the presentence report

indicated that Defendant had been on probation for another offense, and his probation was

revoked. Also based on Defendant’s lengthy criminal record, the trial court determined that

measures less restrictive than incarceration had been applied unsuccessfully. Finally, the trial

court found that allowing probation would depreciate the seriousness of the offense, noting

that Defendant’s actions began in the courtroom during court proceedings. Despite

Defendant’s argument that the trial court abused its discretion in sentencing him to

confinement, our appellate review reveals that the record in this case reflects that the trial

court considered the sentencing principles and all relevant facts and circumstances in

determining that imprisonment was appropriate.

We conclude that Defendant’s sentence of five years for his conviction for reckless

aggravated assault is within the applicable range and consistent with the purposes and

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principles of sentencing. Furthermore, the record shows that the trial court stated its reasons

for imposing the sentence, followed the statutory sentencing procedure, made findings of fact

that are adequately supported in the record, and gave due considerations to the relevant

sentencing principles. Based on our review, we conclude that the trial court did not abuse

its discretion in sentencing Defendant to serve five years in confinement. Defendant is not

entitled to relief on this issue.

Plain error

Defendant asserts that he is entitled to relief under a “plain error” analysis of

comments made by the trial court to the jury and the trial court’s questioning of the victim.

The State responds that Defendant has waived this issue by failing to object at trial, and even

if the issue is not waived, Defendant has failed to establish the five prerequisites for plain

error.

Defendant did not object at trial to the comments or questions complained about on

appeal. Relief is generally not available when a party has “failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of any error.” Tenn. R. App. P.

36(a); see Sims, 45 S.W.3d 1, 16 (Tenn. 2001). Defendant asserts, however, that the

comments and questions by the trial court constitute plain error. The doctrine of plain error

provides that “[w]hen necessary to do substantial justice, an appellate court may consider an

error that has affected the substantial rights of a party at any time, even though the error was

not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P.

36(b). In order for us to find plain error,

(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a substantial

right of the accused must have been adversely affected; (d) the accused did

not waive the issue for tactical reasons; and (e) consideration of the error is

necessary to do substantial justice.

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established by

the record before we will recognize the existence of plain error, and complete consideration

of all the factors is not necessary when it is clear from the record that at least one factor

cannot be established. Id. at 283.

Defendant asserts that the trial court’s pretrial instructions “prejudicially affect[ed]

[Defendant] by offering a factually similar circumstance” to the jury. During jury selection,

the trial court made the following comments to the jury:

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In other words you’re really on the jury throughout the trial but at the end

of the case and all twelve jurors are ready to go back and survived

everything to begin deliberations, at that time you would be excused and

you would not be able to participate in the actual deliberations but if

something happens to one of the jurors, God forbid something happen, if

something unexpected come[s] up, one of them cannot continue, then we

have a person who has sat here and listened to everything and can step in

and take their place.

The example I use is about a month ago, maybe six weeks ago w[h]ere in

a trial just like this one and I was excusing everyone for lunch. I mean the

jurors and No. 6 seat back there and they were filing out, you notice there’s

a couple of steps over there, got the first one but missed that second step.

I was sitting back here and he went down like a tree. It sounded real loud

and all but he go[t] up and said he was fine.

When he came back from lunch his arm was hurting where he landed. He

wanted to go to the doctor to the hospital and get it checked out. I was able

to do that. The alternate stepped in and took his place. Later I found out it

wasn’t broken or anything like that. It was just really sore and he was fine

but that’s an excellent example of the purpose of an alternate juror.

Something unexpected happened have a person who can step in and take

that person’s place. Ok. Do you understand the purpose of an alternate

juror?

Defendant contends that the trial court’s comments prejudicially affected the outcome

of the case because the trial judge “anecdotally cautioned [the] jury about the risk of injury

in the courtroom.” We agree with the State that, taken in context, the above comments by

the court were altogether unrelated to the facts of the present case, and therefore did not

constitute “plain error.”

Defendant also asserts that in its examination of the victim and in reading bench notes

to the jury, the trial court “demonstrated subjective feelings” regarding the victim’s pain and

improperly commented on the weight of the evidence. The Tennessee Constitution prohibits

judges from making any comment “with respect to matters of fact.” Tenn. Const. art. VI, §

9; State v. Suttles, 767 S.W.2d 403, 406 (Tenn. 1989). The aim of this rule is to avoid giving

“the jury any impression as to [the judge’s] feelings or to make any statement which might

reflect upon the weight or credibility of evidence or which might sway the jury.” Suttles, 767

S.W.2d at 407; see State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991). “It is natural

that jurors should be anxious to know the mind of the Court, and follow it; therefore, a Court

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cannot be too cautious in its inquiries.” McDonald v. State, 89 Tenn. 161, 164, 14 S.W. 487,

488 (Tenn. 1890). That said, our Rules of Evidence, however, specifically permit the

interrogation of witnesses by the trial judge:

(b) Interrogation by Court. The Court may interrogate witnesses.

(c) Objections. Objections . . . to interrogation by [the court] may be made

at the time or at the next available opportunity when the jury is not present.

Tenn. R. Evid. 614(b), (c). So long as the inquiry is impartial, trial courts may ask questions

to either clarify a point or to supply any omission. See Collins v. State, 220 Tenn. 275, 416

S.W.2d 766 (Tenn. 1967); Parker v. State, 132 Tenn. 327, 178 S.W. 438 (Tenn. 1915).

In the present case, the trial court questioned the victim Deputy Woody after the

State’s direct examination and Defendant’s cross-examination:

Q I just have a couple of follow-up questions just for clarifications.

A Yes, sir.

Q First of all, Officer Woody – Deputy Woody, just for the record, the

jurors can see you but for the record how tall are you?

A Five-four-and-a-half.

Q How much do you weigh?

A Approximately 145.

Q 145. Okay. Now, when you showed the jurors how the defendant

pushed into you and you went down, you were standing in front of

my bench here. Could you describe that in a little more detail

please? For an example was it a shoulder that went into your chest

or his elbow or what, just describe what happened?

A It was a shoulder because we standing [sic] by pretty what [sic] the

same height. So when he rammed me into the wall with his

shoulder, I went down and he went down with me.

Q He went down with you so he landed immediately on you?

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A Yes, sir.

Q Now, I need to gauge the level of your pain. I took notes. First it

was no numb [sic]. Then the pain started you said and it got worse

and it got serious. I need for you to describe – when you say it was

serious, describe what you mean about the pain that you felt in your

knee?

A Well, it like I said was numb. Apparently it deadened – the nerves

was dead, and then when the nerves starting coming back to life, the

pain starting coming back and it started increasing until it was

hurting pretty bad. Then I asked – I told attendant – I said you got

anything to give me. He said, well, I can get you some – something

for the pain, and he went and got some pain medicine, and I took it

while I was still waiting to be treated.

Q When you say the pain was serious, what do you mean by

“[s]erious”?

A It was kind of unbearable.

Q Unbearable?

A Yes, sir.

Q So it was extreme?

A Yes, sir.

Q So you were hurting pretty bad?

A Yes, sir.

Defendant argues that the trial court’s question whether the victim’s pain was

“extreme” went beyond clarification and invaded the province of the jury. Defendant asserts

that “the record is factually void of all objective elements of the definition of serious bodily

injury, [therefore] the admission of this prejudicially developed testimony of the single

subjective element [of extreme physical pain] is an error of sufficient magnitude that it

probably changed the outcome of the trial.” As we have already discussed in this opinion,

there was sufficient evidence in the record, even without the victim’s answers to the trial

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court’s questions, of extreme physical pain. Defendant has not established that consideration

of the alleged error is necessary to do substantial justice. We conclude that the prerequisites

for a finding of plain error are not satisfied in this case.

CONCLUSION

After a careful review of the record, we affirm the judgment of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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