Opinion

State of Tennessee v. Claudell Watkins Carpenter

Court
Court of Criminal Appeals of Tennessee
Filed
Mar 28, 2008
Status
Published
On the bench
Judge Alan E. Glenn
Cited by
0 cases
Authority
More cited than 29.4%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 10, 2007 Session

STATE OF TENNESSEE v. CLAUDELL WATKINS CARPENTER

Direct Appeal from the Circuit Court for Weakley County

No. CR116-2004 William B. Acree, Jr., Judge

No. W2006-01399-CCA-R3-CD - Filed March 28, 2008

Following a jury trial, the defendant, Claudell Watkins Carpenter, was convicted of second degree

murder, first degree murder in the perpetration of a burglary, especially aggravated burglary, and

aggravated assault. Additionally, the defendant pled guilty to evading arrest. Pursuant to Tennessee

Rule of Criminal Procedure 29, he filed a motion for judgment of acquittal, which the trial court

subsequently granted as to certain of the convictions, reducing the second degree murder conviction

to voluntary manslaughter and dismissing the first degree murder and aggravated assault convictions.

The defendant then was sentenced as a Range I, standard offender to six years for the voluntary

manslaughter conviction, twelve years for the especially aggravated burglary conviction, and eleven

months, twenty-nine days for the evading arrest conviction, with all sentences to be served

concurrently. Thereafter, the State appealed the trial court’s ruling on the motion for judgment of

acquittal. Rule 29, pursuant to which the defendant filed the motion for judgment of acquittal,

requires that, before a judgment is entered following the granting of a motion for judgment of

acquittal, the court first should rule on the motion for new trial. Accordingly, we remand this matter

to the trial court for disposition of the motion for new trial so that a single appeal will result from

the defendant’s trial. Since judgments were entered prematurely following the court’s granting the

motion, they are set aside, and the jury verdicts for second degree murder (Count 1), first degree

murder in the perpetration of a burglary (Count 2), and aggravated assault (Count 4) are reinstated.

Because the State’s appeal is premature, it is dismissed.

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

Appeal Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT

WILLIAMS, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney

General, for the appellant, State of Tennessee.

Joseph P. Atnip, District Public Defender, for the appellee, Claudell Watkins Carpenter.

OPINION

FACTS

In brief, the facts of this case are that the defendant, an officer of the Weakley County

Sheriff’s Department, suspected that his estranged wife was having an affair. He went to the

apartment where she was living with their two daughters, burst through the front door, fracturing it,

went to a bedroom, where his estranged wife and the victim were located and shot the victim fifteen

times, eight of which were in the back. He was arrested at the scene. Although it is undisputed that

the defendant’s wife and the victim were not having sexual relations when the defendant entered the

apartment, they only were partially clothed, according to defense proof, which was contested by the

State. We will set out the evidence in this matter, although our determinations are based upon the

procedure by which the appeal reached this court, rather than trial testimony.

State’s Proof

Renee Carpenter1 testified that she and the defendant were married in 1997 and had two

daughters. In February 2004, they separated because of marital problems, and in June, Renee and

their daughters moved to the Oakwood Apartments in Greenfield.

On June 15, 2004, Renee took the defendant to a counseling session and, that evening, he

telephoned her at about 9:30 p.m. at her apartment to say goodnight. Approximately an hour later,

the victim, Joe Martin, with whom Renee had begun an affair after she and the defendant separated,

came to her apartment. The defendant previously had asked her about telephone calls she had

received from the victim, and she denied that they were having an affair, saying the victim was

calling to sell drugs to her brother. While the victim was at Renee’s apartment, a man whom she did

not know, knocked on her door, “looked” at her as she opened it, and then turned and walked away.

Renee called to Officer Kevin Klutts, whom she saw in the parking lot, and informed him of the

incident. Shortly thereafter, Officer Klutts came to Renee’s apartment, and the victim went to her

daughters’ bedroom2 while she discussed the incident with Klutts. After Klutts left, Renee went to

the bedroom and told the victim about her conversation with Klutts. As they were talking, she heard

a “loud thump” and got up to investigate. As she reached the bedroom door, Renee saw the

defendant, who pushed her out of the way, and then began shooting the victim, who still was sitting

on one of the beds. She asked the defendant what he was doing, and he replied, “I don’t know. I

think I just fucked up.”

1

Because Renee Carpenter and the defendant share the same last name, we will refer to her as “ Renee.” We

intend no disrespect by this reference, but do so to avoid using her entire name in each reference to distinguish her from

the defendant.

2

Renee testified that her daughters were sleeping in her bedroom that night instead of their room.

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Officer Kevin Klutts testified that on June 15, 2004, he was dispatched to the Oakwood

Apartments at about 11:00 p.m. and spoke with a resident, Tiffany Cash, who said that an unknown

male was knocking on apartment doors. Officer Klutts located the man, Brian Seiber, and went to

Renee’s apartment to take her complaint against Seiber. When he returned to the parking lot, Klutts

saw a sheriff’s department car pull into the parking lot, stop near a green Impala, and then pull into

a parking space. When the driver got out of the vehicle, Officer Klutts recognized that it was the

defendant, who was wearing blue jeans and a dark-colored t-shirt. The defendant first tried to open

the door of Renee’s car and then went upstairs to her apartment. Shortly afterwards, Klutts heard

“a series of loud bangs,” that sounded as if someone were beating on a door. Hearing a woman

scream, he ran up the stairs, and saw that the frame of the door to Renee’s apartment was “fractured

like someone had busted the door in.” The defendant, with a pistol in his right hand, exited the

apartment, laid his gun down on the stairwell, held his hands away from it, saying, “I’m done.”

Officer Klutts handcuffed the defendant, and Renee came out of the apartment screaming, “What

have you done?” Officer Klutts placed the defendant in his patrol car, escorted Renee to the

apartment of Tiffany Cash, and then returned to Renee’s apartment. In the bedroom, he found the

victim, who was wearing blue jean shorts and a shirt, lying on the floor between the beds. After

Brad Hardin, a first responder, and other officers arrived on the scene, Officer Klutts returned to his

vehicle and discovered the right rear window broken out and the defendant gone. Klutts said that

he collected the defendant’s gun as evidence and denied that he unzipped or unbuttoned the victim’s

shorts.

Greenfield Police Lieutenant Danny Smith testified that he was called to the scene, where

he spoke with Officer Klutts. He checked the victim’s identification and determined that he was Joe

Martin. He saw that the victim’s shorts were unzipped but pulled up. He retrieved the defendant’s

weapon from Officer Klutts and ejected the magazine. Two bullets remained in the weapon, one in

the magazine and one in the chamber. Lieutenant Smith said that the weapon could fire thirteen to

fourteen shots without reloading.

Tennessee Bureau of Investigation Special Agent Valerie Troutt testified that she was called

to the scene and observed that the victim had several gunshot wounds. She identified a photograph

she made at the scene which showed the victim with his shorts unbuttoned and unzipped and his shirt

cut off. Agent Troutt said that she took possession of the defendant’s weapon, a Glock Model 35,

.40 caliber semi-automatic pistol with a fifteen-round capacity magazine, and took a statement from

Renee. After the defendant was taken into custody several hours later, she interviewed him. The

defendant told her that he had heard his wife was having an affair with the victim, but each had

denied it to him. On the evening of June 15, several hours after speaking on the phone with his wife,

the defendant drove to her apartment and saw the victim’s car in the parking lot. He called the

dispatcher and confirmed with the tag number that it was the victim’s vehicle. He then went to

Renee’s apartment, and, in his words, “push[ed] in the door.” He found Renee and the victim in bed

together, but they were “not going at it.” He said that the victim jumped up, causing him to believe

that the victim was “coming after” him. The defendant said that he did not remember shooting the

victim.

-3-

Dr. Feng Li testified that he performed an autopsy on the victim, concluding that the cause

of death was multiple gunshot wounds. He said that the victim had fifteen separate wounds, eight

of which had entered his back. He said that some of the wounds were consistent with the victim and

the defendant both standing upright, while some were consistent with the victim sitting upright in

bed and the defendant standing over him.

The parties stipulated that the gunshot residue on the victim’s shirt showed that at least one

of the shots was fired within four feet of him.

Alisa Fuller testified that she saw the defendant at the Weakley County Sheriff’s Department

on April 16, 2004, when she was charged with DUI. The defendant gave her a card with his home

phone number and called her several times. On two occasions, he told her that he thought his wife

was cheating on him and that he would kill the person he caught her with. Fuller said the defendant

called her from jail after his arrest, saying that he “would plead insanity because of his medication

. . . and the problems that he’d had in the past.” The defendant told her that he did not remember the

shooting but that he knew his wife was cheating on him.

Defense Proof

First Responder Brad Hardin and Deputy Candace Floyd testified that they were the next to

arrive on the scene after Officer Klutts. Both said that the victim’s pants were unbuttoned and

unzipped when they arrived, and Hardin acknowledged that he either tore or cut the victim’s shirt

in an effort to treat his wounds.

Billy Smith testified that he was a close friend of the defendant’s, but they had a “falling out”

because the defendant wanted to carry his badge and gun when they went out. Weakley County

Sheriff’s Deputies Keith Hazelwood, Mark Black, Randy Crocker, and Danny Browning testified

that the defendant was a good officer and that it was not unusual for officers to carry their badges

and weapons while off duty.

The defendant testified that, following his discharge from the Army, he joined the Weakley

County Sheriff’s Department in April 2001. He had twice been called back to active duty, and he

and Renee separated following his second deployment. The defendant said that he was taking Paxil,

an antidepressant, at the time of the shooting. He denied that he had a physical relationship with

Alisa Fuller but admitted that he had been unfaithful to his wife in the past. He had suspected that

his wife was having an affair but did not know with whom. On the evening of June 15, fearing that

something was wrong because Renee did not answer the telephone, he drove from his home in

Gleason to her apartment in Greenfield. There, he saw a car, which he believed belonged to the

victim, and called the dispatcher to make certain. Because Renee had told him that the victim was

a drug dealer, he then went to her apartment either to make the victim leave or to get his daughters

out. He hit the door with his shoulder to open it and went to the bedroom, where he saw his wife’s

“nude behind” and the victim “stuffing his penis back in his pants.” The victim stood up, and the

defendant pulled his weapon but did not remember firing it. The defendant denied that he had gone

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to the apartment to assault or shoot the victim and said that, previously, they had parted on good

terms.

On cross-examination, the defendant acknowledged that he did not tell Agent Troutt or Dr.

Moragne, who evaluated him, that he was concerned about the victim’s selling marijuana. He also

acknowledged that he did not tell Agent Troutt or Dr. Moragne that he saw his wife’s “nude behind”

or the victim’s “stuffing his penis back in his pants.” He explained that it was later when he

remember those occurrences.

ANALYSIS

As we will explain, we have concluded that this matter must be remanded to the trial court

so that the procedures of Tennessee Rule of Criminal Procedure 29 be followed, that is, the motion

for new trial be disposed of before entry of the judgments following the court’s granting of the

motion for judgment of acquittal.

The version of Rule 29 of the Tennessee Rules of Criminal Procedure in effect at the time

of the defendant’s trial and the court’s ruling on his motion for a judgment of acquittal required that

a trial court first dispose of a motion for new trial before entering a judgment resulting from the

granting of a motion for judgment of acquittal:

If the jury returns a verdict of guilty or is discharged without having returned a

verdict, a motion for judgment of acquittal may be made or renewed within 30 days

of the date the order of sentence is entered or within such further time as the court

may fix during the 30-day period. . . . If a verdict of guilty is returned the court may

on such motion, set aside the verdict and after disposing of a motion for a new trial

enter judgment of acquittal. The [S]tate shall have the right of appeal where the court

sets aside a verdict of guilty and enters a judgment of acquittal.

Tenn. R. Crim. P. 29(c) (2005).

The trial court’s written order on the defendant’s motion for judgment of acquittal is as

follows:

This case is before the Court upon the defendant’s motion for a judgment of

acquittal.

The defendant was indicted for premeditated murder, felony murder,

especially aggravated burglary, and aggravated assault. This case was tried to a jury,

and the jury found the defendant guilty as indicted except for the premeditated

murder count. As to that count, the jury found the defendant guilty of the lesser

included offense of second degree murder.

-5-

In the defendant’s motion for judgment of acquittal, he seeks a reduction of

the second degree murder conviction to voluntary manslaughter and a dismissal of

the felony murder conviction.

On June 15, 2004, the defendant shot and killed Joe Martin. The defendant

broke the door of the apartment of his estranged wife, found Martin and his wife

partially undressed and shot him numerous times.

The defendant and his wife, Susan Renee Carpenter, married in 1997. They

had two daughters who were 9 and 7 years of age at the time of the trial. The

defendant was a deputy in the Weakley County Sheriff’s [D]epartment and was a

member of the [N]ational [G]uard. He had been called to active duty on two

occasions.

The defendant and his wife separated in February of 2004. During the

separation, the defendant provided financial support to his wife and daughters. On

June 11, 2004, the defendant’s wife and his two daughters moved into an apartment

in Greenfield, Tennessee. The defendant helped them move into the apartment.

The defendant’s wife testified that she was trying to end the marriage.

However, she attended three counseling sessions with the defendant[,] the last of

8which was on the day of the shooting. In the week preceding the shooting, she

made approximately 50 telephone calls to the defendant. One call was for 21 minutes

and another was for 20 minutes.

The defendant’s wife began a sexual relationship with Joe Martin after she

left the defendant. When questioned by the TBI after the homicide, she denied the

relationship because she was afraid the truth might assist the defendant in his

defense. About two months later, she told the agent she had a sexual relationship

with Martin.

According to the defendant’s wife, Joe Martin was a drug dealer. She told the

defendant of Martin’s involvement with drugs before the homicide and told a TBI

agent of this afterwards.

On the night of June 15, 2004, the defendant talked with his wife by

telephone. After sleeping for a period of time, the defendant woke up and attempted

to telephone his wife. He could not reach her. According to the defendant, he left

for his wife’s apartment to check on her and his daughters.

Before leaving his home, the defendant put on his badge and gun. Several

deputies in the sheriff’s department testified that it was not unusual for a police

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officer to carry his gun and badge while off duty and that this was permissible under

the sheriff’s department’s policy.

After arriving at the apartment complex, the defendant observed a vehicle

near his wife’s apartment. He radioed the sheriff’s department and learned that this

was Martin’s vehicle. The defendant testified that he was going to make Martin

leave or he was going to take his children from the apartment.

After arriving at the apartment, he hit the apartment door with his shoulder,

broke it open, and entered the apartment. He noticed lights on in a bedroom and

went into it. The defendant testified he saw his wife’s nude behind and saw Joe

Martin stuffing his penis into his pants. The defendant’s wife denied that she was

partially unclothed or that Martin had taken his penis out of his pants. However, four

police officers who went to the scene testified that Martin’s pants were unbuttoned

and unzipped, and the testimony of the defendant’s wife was not credible considering

her denial of her relationship with Martin. Upon entering the bedroom, the defendant

drew a gun and shot and killed Joe Martin. According to the testimony of the

medical examiner, there were 15 gunshot wounds[,] eight of which were to the back.3

After shooting Martin, the defendant left the apartment and met an officer of

the Greenfield [P]olice [D]epartment who was at the apartments to investigate a

separate complaint. The defendant laid down his weapon and was handcuffed by the

officer. The officer put the defendant into the police car and went to the scene of the

homicide. Later, he found that the defendant had broken the window of the police

car and had escaped. The defendant was apprehended the next day.

During the trial, the defendant timely moved for a judgment of [] acquittal

and timely renewed that motion after the verdict was returned.

A judgment of acquittal must be entered if the evidence is insufficient to

sustain a conviction of the offense for which the defendant is charged.

The defendant first argues that the evidence was insufficient so sustain a

conviction for second degree murder and that the Court should set aside the jury

verdict and find the defendant guilty of voluntary manslaughter. Second degree

murder is a knowing killing of another whereas voluntary manslaughter is the

intentional or knowing killing of another in a state of passion produced by adequate

provocation sufficient to lead a reasonable person to act in an irrational manner (see

T.C.A. § 39-13-201 and T.C.A. § 39-13-211).

3

The defendants’ daughters were in a separate bedroom at the time of the shooting and did not witness the

incident.

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The defendant contends that he had no intention of killing Joe Martin and did

so only after finding Martin and his wife in a compromising situation. The defendant

relies upon the case of State v. Thornton, 730 S.W.2d 309 (1987). In Thornton, the

defendant saw his estranged wife kissing another man. He left, got his gun, and

returned to his wife’s home. He watched them from her backyard for about an hour

and observed them kissing again. The defendant kicked through the locked front

door of the house, entered and found his wife and the victim nude. He took pictures

of them and then shot the victim. The jury found the defendant guilty of first degree

murder.

The Supreme Court of Tennessee set aside the conviction of murder in the

first degree and remanded the case to the trial court for sentencing of the defendant

for voluntary manslaughter. The Supreme Court said in part:

“It has long been a well-settled legal principal that the commission of

unlawful sexual intercourse with a female relative is an act obviously

calculated to arouse ungovernable passion, and that the killing of the

seducer or adulterer under the circumstance or in the heat of passion

constitutes voluntary manslaughter, and not murder, in the absence of

evidence of actual malice.”

This Court has carefully reviewed the evidence in this case and finds no

evidence of actual malice. Although separated from his wife, the defendant was in

constant contact with her and their children. After awakening and being unable to

reach her, he went to her apartment and found Joe Martin to be in the apartment.

After finding them in a[] semi-nude condition, he shot Martin 15 times.

The Court finds as a matter of law that there was no evidence of malice and

that the evidence is insufficient to sustain a conviction for second degree murder.

The Court finds as a matter of law that the killing was in a state of passion produced

by adequate provocation sufficient to lead a reasonable person to act in an irrational

manner, and, accordingly, enters a verdict of voluntary manslaughter as to the first

count.

The defendant next argues that the evidence was insufficient to sustain a

conviction for felony murder and that the Court should set aside the jury verdict and

dismiss this count. The defendant argues that the State has failed to prove the

requisite mens rea, and, therefore, the defendant is not guilty of the felony murder

charge.

Felony murder is a killing of another committed in the perpetration of or

attempt to perpetrate certain crimes including the crime of burglary. No culpable

mental state is required for conviction except the intent to commit the enumerated

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offense. (T.C.A. § 39-13-202) As pled by the State in this case,4 the defendant

committed a burglary by entering the building without the effective consent of the

property owner and by assaulting Joe Martin. (T.C.A. § 39-14-402) A person

commits an assault who intentionally, knowingly or recklessly causes bodily injury

to another (T.C.A. § 39-13-101), and as pled by the State, the assault occurred when

the defendant shot and killed Joe Martin.

The mens rea required for a felony murder conviction is summarized in two

recent Tennessee Supreme Court cases. The Court, in State v. Buggs, 995 S.W.2d

102 (Tenn. 1992), citing State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996) stated:

“The prevailing view is that in order for the felony-murder

doctrine to be invoked, the actor must intend to commit the

underlying felony at the time the killing occurs; there is no felony-

murder where the felony occurs as an afterthought following the

killing. . .

In the typical case of felony murder, there is no malice in

“fact” with respect to the homicide; the malice is supplied by the

“law”. There is an intended felony and an unintended homicide. The

malice which plays a part in the commission of the felony is

transferred by the law to the homicide. As a result of the fictional

transfer, the homicide is deemed committed with malice. Id. at 296.

If an accused had no intent to commit the underlying felony

at the time of the killing, the basis for the felony-murder rule does not

apply.”

The evidence in this case does not support a finding that the defendant

entered the apartment with the intent to commit an assault, or after entering, he

intentionally assaulted Joe Martin. The assault relied upon by the State for the felony

murder count is the infliction of 15 gunshot wounds which caused Martin’s death.

That is, the assault and the homicide are the same act. In count one, the jury found

the defendant not guilty of premeditated murder and thus found that he did not

intentionally kill Joe Martin. To find the defendant guilty of felony murder would

mean that the defendant intentionally assaulted Joe Martin, but he unintentionally

killed him. Such a result is not possible. The explanation for the inconsistency is

that the jury was charged that it could find the defendant guilty of assault by reckless

conduct. This charge was in error. The Court concludes the evidence is insufficient

4

According to the State’s attorney, count two must be read in conjunction with count three to determine the

elements of burglary relied upon by the State.

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to establish the defendant intentionally committed the felony of burglary and is

insufficient to support a verdict of felony murder.

Notwithstanding the foregoing, there is another reason the felony murder

conviction must be dismissed. As the felony murder count was pled by the State, the

State was only required to prove: (1) that the defendant unlawfully and feloniously

killed Joe Martin; and (2) he did so after entering a building and committing an

assault; and (3) the assault was committed by intentionally, knowingly or recklessly

causing bodily injury.

The problem is that the felony murder count as pled by the State can be

committed by reckless means. According to the statute and the case law, a felony

murder cannot be committed in the absence of intentional conduct. That is, it is

necessary that the defendant have the intent to commit the underlying felony. A

felony committed by reckless conduct cannot be the basis for a felony murder

conviction under Tennessee law.

Because of the manner in which the felony murder count was pled, the verdict

must be set aside.

There is one other issue which was not raised in the defendant’s motion for

judgment of acquittal. The defendant was found guilty of aggravated assault of Joe

Martin (count four). The aggravated assault charge arises from the same act as the

homicide. The defendant cannot be convicted of both. Therefore, the court, sua

sponte, dismisses the aggravated assault count.

In summary, a judgment of conviction will be entered as to count one for the

crime of voluntary manslaughter, and counts two and four are dismissed.

A sentencing hearing has previously been scheduled for June 29, 2006, and

the defendant will be sentenced for the crimes of voluntary manslaughter and

especially aggravated burglary.

IT IS SO ORDERED.

The record in this matter shows that the defendant was found guilty on November 2, 2005,

of the various offenses, that he filed a motion for judgment of acquittal on November 10, 2005, and

a motion for new trial on December 1, 2005. The lengthy and detailed order granting the motion for

judgment of acquittal was entered on May 25, 2006. The judgments in this matter were signed by

the trial court on June 29, 2006. The State filed a notice of appeal that same day, contesting the

relief granted pursuant to the motion for judgment of acquittal. The motion for new trial was, and

presumably still is, pending. For that reason, as we will explain, this matter must be remanded to

the trial court.

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As we have set out, Tennessee Rule of Criminal Procedure 29(c) provides that “[i]f a verdict

of guilty is returned the court may on such motion, set aside the verdict and after disposing of a

motion for a new trial enter judgment of acquittal.” The purpose of first “disposing of a motion for

new trial” is obvious.5 In the event this court’s ruling on the judgment of acquittal is adverse to the

defendant, the trial court could properly, upon remand, rule upon the pending motion and grant a new

trial, finding the verdict is against the weight of the evidence. See Tenn. R. Crim. P. 33(d). Thus,

rather than have the judgment of acquittal and the grant of a new trial be reviewed by two different

panels of this court, resulting in protracted delay, Tennessee Rule of Criminal Procedure 29(d)(2)

requires the trial court to enter a ruling on the motion for new trial so that the two rulings can be

reviewed in a single consolidated appeal.6

Accordingly, we remand to the trial court for disposition of the pending motion for new trial

as directed by Rule 29(d)(2).

We note that, in our review of the motion for judgment of acquittal, the trial court appears

to have made determinations, in part based upon its view of the weight of the evidence. However,

in considering such a motion, a court is to consider the “legal sufficiency of the evidence and not .

. . the weight of the evidence.” State v. Thompson, 88 S.W.3d 611, 615 (Tenn. Crim. App. 2000).

Thus, in considering such a motion, the trial court instead must consider the evidence in the light

most favorable to the State, as explained by this court in State v. Blanton, 926 S.W.2d 953, 957-58

(Tenn. Crim. App. 1996):

When the trial court is presented with a motion for judgment of acquittal, the only

concern is the legal sufficiency, as opposed to the weight, of the evidence. State v.

Campbell, 904 S.W.2d 608 [(Tenn. Crim. App. 1995)]. To determine whether the

evidence is insufficient to sustain the conviction, the trial court must consider “the

evidence introduced by both parties, disregard any evidence introduced by the

accused that conflicts with the evidence adduced by the State, and afford the State the

strongest legitimate view of the evidence, including all reasonable inferences which

may be drawn from the evidence.” Id. (citing State v. Hall, 656 S.W.2d 60, 61 (Tenn.

Crim. App. 1983)).

5

In the present appeal, an issue is whether the trial court erred in reversing the conviction and dismissing the

indictment count for murder in the perpetration of a burglary, one of the bases for this action being that the jury was

erroneously instructed as to “assault.” In the direct appeal of the defendant’s conviction for especially aggravated

burglary, the identical issue again would be raised.

6

The Advisory Commission Comments to Rule 29 state that the purpose of allowing a thirty-day time period

for the filing of a motion for judgment of acquittal, after the verdict is returned, is to permit both the judgment of acquittal

and the ruling on the motion for new trial to be filed together, “indeed, the commission anticipates that this will be the

case.” See also Tenn. R. Civ. P. 50(c) (which is similar in scope and purpose with the criminal rule); Fed. R. Crim. P.

29(d) (the federal counterpart of our Rule 29(d)(2)).

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In making its determinations in this matter as to the defendant’s motion for new trial, the trial

court should follow the procedure set out in Tennessee Rule of Criminal Procedure 33, regarding the

motion for new trial, including Rule 33(d), which provides, in part, that “[t]he trial court may grant

a new trial following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.”

CONCLUSION

Based upon the foregoing authorities and reasoning, we conclude that the State’s appeal in

this matter is premature. Accordingly, the matter is remanded to the trial court for a ruling on the

motion for new trial and, then, entry of judgments resulting from the court’s rulings. Since these

judgments were entered prematurely following the court’s granting the motion for judgment of

acquittal, they are set aside, and the jury verdicts for second degree murder (Count 1), first degree

murder in the perpetration of a burglary (Count 2), and aggravated assault (Count 4) are reinstated.

___________________________________

ALAN E. GLENN, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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