State of Tennessee v. Michael Sammie Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 25, 2003

STATE OF TENNESSEE v. MICHAEL SAMMIE BROWN

Direct Appeal from the Criminal Court for Morgan County

No. 8613 James B. Scott, Jr., Judge

No. E2002-01035-CCA-R3-CD

July 17, 2003

The defendant, acting pro se at trial, was convicted of retaliation for past action and sentenced to one

year of probation. The defendant argues that the evidence is insufficient to sustain his conviction and

that he was wrongfully tried for recklessly committing the present offense. Because the indictment

alleged that the defendant intentionally committed the instant offense, the defendant argues that there

was a fatal variance between the indictment and the proof. The defendant also contends that the trial

court wrongfully terminated his cross-examination of the victim and the prosecution made

inappropriate comments regarding his religious beliefs during the closing arguments. The defendant

argues that the trial court improperly acted in its capacity as a thirteenth juror and failed to correctly

charge the jury. We conclude that the evidence is sufficient to sustain the defendant’s conviction

and that the trial court did not err. The judgment of the trial court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR. and ROBERT W. WEDEMEYER , JJ., joined.

Carl W. Eshbaugh, Knoxville, Tennessee, for the appellant, Michael Sammie Brown.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, Michael Sammie Brown, acting pro se at trial, was convicted by a jury of

retaliation for past action, a Class E felony. See Tenn. Code Ann. § 39-16-510. On October 15,

2001, the trial court sentenced the defendant to one year in the Tennessee Department of Correction,

suspended the sentence, and ordered the defendant to serve one year of probation.

Since 1999, the defendant and his siblings had been involved in the settlement of the estate

of their mother, Magrada Davis Brown. Before his mother’s estate was settled, the defendant wrote

the following letter to the presiding chancellor, Frank Williams:

I, Michael, the Seven Son of the Almighty God Jehovah, Father to my brother

Jesus Christ, Mother Magrada Brown, wife of the Almighty God Jehovah, who

created life and the world.

I write this to the order of my Father the Almighty God Jehovah that it be

done as, I have written. Every one name or title written here must be in Morgan

County Court room, when court room is call to order at 9:30 am E.S.T., on Monday

Feb, 22, 1999.

If anyone is not there, they are DIE at 9:31 am no matter who that are. No

one can be save, if they are not in that court room. They are Died at 9:31 am.

Andrew Hall, Debbie Hill, Vivian Crandall, Governor of the State of Tenn., Attorney

General, of the State of Tenn. (Frank Williams, Johnny Dunaway, James Brook.

(Andrew Hall give copy James Brook and Debbie Hill.)

The first letter is the topic. The Word, the Almighty God my Father is the

Speaker. The Almighty God Jehovah

Say Amen Be There.

The defendant contends that the trial court erred in refusing to grant his Motion for

Acquittal and Motion for New Trial.

Analysis

I. Judgment of Acquittal

The defendant contends that the trial court erred in denying his Motion for Judgment of

Acquittal. The defendant also contends that the trial court erred in not granting the defendant’s post-

sentencing Motion for Judgment of Acquittal. Specifically, the defendant argues that the trial court

erred in finding that the evidence was sufficient to prove the elements of the offense and that the

actions of the defendant were “reckless.”

A. Sufficiency of Evidence

The defendant contends that the evidence is insufficient to prove the elements of the offense

of retaliation of past action.

In Tennessee, whether the issue of the sufficiency of the evidence for acquittal purposes is

being considered by the trial court upon motion or by an appellate court upon review, the standard

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to apply is the same. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). That standard

is “whether, after viewing 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.”

Jackson v. Virginia, 443 U.S. 307, 319 99 S. Ct. 2781, 2789 (1979). This court is precluded from

reweighing or reconsidering the evidence. This court may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict removes the presumption of

innocence and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Therefore, the burden of proof rests with the defendant, on appeal, to demonstrate the insufficiency

of the convicting evidence. Id.

A person commits the offense of retaliation for past action who harms or threatens

to harm a witness at an official proceeding, judge, district attorney general, an

assistant district attorney general, an employee of the district attorney general or a

law enforcement officer, clerk, juror or former juror by any unlawful act in retaliation

for anything the witness, judge, district attorney general, an assistant district attorney

general, an employee of the district attorney general or a law enforcement officer,

clerk, or juror did in an official capacity as witness, judge, district attorney general,

an assistant district attorney general, an employee of the district attorney general or

a law enforcement officer, clerk, or juror. The offense of retaliation for past action

shall not apply to an employee of a clerk who harms or threatens to harm such clerk.

Tenn. Code Ann. § 39-16-510(a).

The defendant testified that he and his siblings fought over their mother’s estate for almost

four years. The defendant perceived that the victim in this case, Frank Williams, had been

ineffective in his role as chancellor over his mother’s estate. He said he was frustrated because the

chancellor could not make a final decision and because “he kept putting it off.” He stated that the

purpose of his letter was to get everyone together “to solve this problem,” and to warn the chancellor

of spiritual death. The chancellor testified that he had no reason to believe that there was any sort

of immediate danger, but stated that he saw “the potential for violence” from the language of the

letter. In the instant case, it is logical for a reasonable person to conclude that the letter was a threat

of impending harm and not a warning to seek divine salvation. We conclude that a letter which

informs the sender that he will die, if he does not arrive at a time and place, is sufficient to prove an

intent to harm or a threat to harm.

The defendant also contends that there exists no past action of the chancellor for which the

letter addressed. The record reveals that the defendant’s letter referred to the past inaction of the

chancellor. We conclude that any of the chancellor’s actions, either perceived or real, are sufficient

to prove retaliation for past action. Furthermore, because we conclude that the evidence is sufficient

to convict the defendant of retaliation for past action, the trial court did not err in denying the

defendant’s Motion for Acquittal.

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B. Recklessness

The defendant contends that in approving the jury’s verdict, the court specifically ruled that

the proof supported the fact that the defendant’s actions were “reckless.” The defendant contends

that the trial court should have granted the defendant’s Motion for Judgment of Acquittal for three

reasons:

(1) It is impossible for a person to act “in retaliation” recklessly, because retaliation

requires an intentional act to get even with someone for past conduct;

(2) The defendant could not have been found guilty of harassment under Tennessee

Code Annotated section 39-17-308(a), a lesser included offense to the crime of

retaliation for past action, without proof that he intentionally threatened the

person in the letter and alarmed the recipient; and

(3) The indictment against the defendant gave notice of the necessary requirement

of proof beyond a reasonable doubt of an intention to retaliate against the judge,

charging that the defendant did “unlawfully and intentionally threaten to harm

Chancellor Frank Williams, a judge, by an unlawful act in retaliation for actions

the said Chancellor Williams performed in his official capacity as judge.”

In approving the jury’s verdict, the trial court ruled that the proof showed that the defendant

acted “recklessly.” The trial court stated, “As a thirteenth juror, I hereby find that you have

recklessly done this, even though you were sincere in doing it.” The defendant argues that Tennessee

Code Annotated section 39-16-510(a) requires that the perpetrator act intentionally and not

recklessly. When the definition of an offense does not specify a culpable mental state then intent,

knowledge, or recklessness is sufficient to establish the required mens rea. See Tenn. Code Ann.

§ 39-11-301(c). Therefore, the trial court did not err in finding the defendant guilty of recklessly

committing the crime of retaliation for past action.

The defendant further argues that he could not have been found guilty of harassment, which

he contends is a lesser included offense of retaliation for past action, if recklessness is not a required

mens rea under Tennessee Code Annotated section 39-16-510. We will not speculate whether the

defendant could or could not have been found guilty of harassment by a jury, having acknowledged

that the evidence is sufficient to prove him guilty of the instant offense.

II. New Trial

The defendant contends that the trial court erred in not granting the defendant’s motion for

a new trial.

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A. Thirteenth Juror

The defendant contends that the trial court erred by finding the defendant guilty of the present

offense, after deciding as the thirteenth juror that the defendant acted recklessly. He contends the

trial court erred in not granting him a new trial.

Rule 33(f) of the Tennessee Rules of Criminal Procedure provides that a “trial court may

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

evidence.” The purpose of the thirteenth juror rule is to be a “safeguard . . . against a miscarriage

of justice by the jury.” State v. Moats, 906 S.W.2d 431,434 (Tenn. 1995)(quoting State v. Johnson,

692 S.W.2d 412, 415 (Tenn. 1985)). The rule requires that the trial judge must be personally

satisfied with the verdict. State v. Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995).

An order overruling a motion for new trial establishes a presumption that the trial court has

exercised the duty and no explicit statement of the record is required. State v. Carter, 896 S.W.2d

199, 122 (Tenn. 1995). It is only when the trial court disagrees, expresses dissatisfaction with the

jury verdict, or states that it absolves itself of its responsibility that the judgment should be set aside.

Once the trial court approves the verdict as the thirteenth juror and imposes its judgment, the review

of the evidence on appeal is limited, requiring the accrediting of the testimony of the witnesses for

the State and the resolution of evidentiary conflicts in favor of the State. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973).

As mentioned above, Tennessee Code Annotated section 39-11-301(c) allows for intentional,

knowing, or recklessness as the mens rea for any offense which does not specify a culpable mental

state. For this reason, we conclude that the trial court did not disagree or express dissatisfaction with

the jury’s verdict by its statement regarding the mens rea of recklessness. Therefore, this issue is

without merit.

B. Jury Instructions

The defendant contends that the trial court erred in not granting his motion for a new trial

because the defendant was charged with a crime that requires specific intent, but was tried on the

grounds that he acted recklessly. The defendant argues that the trial court erroneously instructed the

jury on the reckless element of the offense of retaliation of past action. However, the defendant

failed to include the jury charge in the appellate record. Since the defendant did not include a copy

of the jury instructions in the record, the basis of this issue on appeal, we must presume that the trial

court did not err in its charge to the jury. See T.R.A.P. 24(b); State v. Boling, 840 S.W.2d 944, 951

(Tenn. Crim. App. 1992). Because the record is explicit that the trial court, acting as the thirteenth

juror, found that the defendant acted recklessly, we conclude that even if the trial court used the

Tennessee Pattern Jury Instructions, the trial court would have correctly instructed the jury on the

mental states of intentional, knowing, or reckless.

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C. Cross-examination

The defendant contends that the trial court erred in not granting his Motion for a New Trial

because the trial court wrongfully terminated his cross-examination of Chancellor Williams. The

defendant argues that he had the right to confront and cross-examine witnesses under the Sixth and

Fourteenth Amendments to the U.S. Constitution and under Article I, Section 9 of the Tennessee

Constitution.

A defendant has a constitutional right to confront witnesses; however, “a defendant’s right

to confrontation does not preclude a trial court from imposing limits upon cross-examination which

take into account such factors as harassment, prejudice, issue confrontation, witness safety, or merely

repetitive or marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim.

App. 1994). “Appellate courts may not disturb limits on cross-examination except when there has

been an unreasonable restriction on the right.” State v. Fowler, 213 Tenn. 239, 253, 373 S.W.2d

460, 466 (1963).

The trial transcript indicates that the defendant repeatedly refused to ask the victim questions

and was admonished by the trial court for testifying on several occasions. The defendant’s

questioning was problematic, at best. The record is unclear as to how the defendant came to

represent himself. The trial transcript does not include a warning from the trial court as to the perils

of self-representation; however, the record reveals the defendant was assisted by elbow counsel.

Nevertheless, the trial court warned the defendant that he was not allowed to make statements, only

to ask questions. The trial judge “is under no obligation to become an ‘advocate’ for or to assist and

guide the pro se layman through the trial thicket.” United States v. Pinkey, 548 F.2d 305, 311 (10th

Cir. 1977). The pro se defendant must abide by the rules of evidence and procedure, just as if he

were represented by counsel. We conclude that the trial court did not err in ending the defendant’s

cross-examination of the victim.

D. Indictment

The defendant contends the trial court erred in denying his Motion for New Trial because

there is a fatal variance between the indictment and the proof against him.

The indictment in the instant case alleges that the defendant did “unlawfully intentionally

threaten to harm Chancellor Frank Williams, a judge by an unlawful act in retaliation for actions the

said Chancellor Williams performed in his official capacity as judge in violation of T.C.A. Section

39-16-510 . . .”

As mentioned previously, Tennessee Code Annotated section 39-16-510 states that,

a person commits the offense of retaliation for past action who harms or threatens to

harm a witness at an official proceeding, judge, district attorney general, an assistant

district attorney general, an employee of the district attorney general or a law

enforcement

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officer, clerk, juror or former juror by any unlawful act in retaliation for anything the

witness, judge, district attorney general, an assistant district attorney general, an

employee of the district attorney general or a law enforcement officer, clerk, or juror

did in an official capacity as witness, judge, district attorney general, an assistant

district attorney general, an employee of the district attorney general or a law

enforcement officer, clerk, or juror. The offense of retaliation for past action shall

not apply to an employee of a clerk who harms or threatens to harm such clerk.

Tennessee Code Annotated section 39-26-510 does not specify a culpable mental state. When the

definition of an offense does not specify a culpable mental state then intent, knowledge, or

recklessness is sufficient to establish the required mens rea. See Tenn. Code Ann. § 39-11-301(c).

We agree that there exists a variance between the wording of the indictment, which alleged

that the defendant committed the offense “intentionally,” and the finding of the trial court that the

defendant committed the offense “recklessly.” However, our analysis does not stop here. We must

examine whether the indictment was constitutionally sufficient in order to determine if the variance

was fatal.

A variance between the indictment and proof is fatal if: (1) defendant is insufficiently

informed of the charges against him, such that he is unable to prepare adequately for trial; and (2)

defendant is not protected against a subsequent prosecution for the same offense. State v. Mayes,

854 S.W.2d 638, 640 (Tenn. 1993)(citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984)).

The Sixth Amendment to the United States Constitution and Article I, section 9 of the

Tennessee Constitution afford the accused the right to be informed of the “nature and cause of the

accusation.” Tennessee Code Annotated section 40-13-202 provides:

The indictment must state the facts constituting the offense in ordinary and concise

language, without prolixity or repetition, in such a manner as to enable a person of

common understanding to know what is intended, and with that degree of certainty

which will enable the court, on conviction, to pronounce the proper judgment; and

in no case are such words as “force and arms” or “contrary to the form of the statute”

necessary.

It is sufficient to state the offense charged in the words of the statute or words which are equivalent

to the wording of the statute. State v. Tate, 912, S.W.2d 785, 789 (Tenn. Crim. App. 1995). An

indictment which fails to allege the elements of the offense in the terms of the statute will still be

sufficient “if the elements are necessarily implied from the [factual] allegations made.” State v.

Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993). Here, only one of the three requisite

mental states was included in the wording of the indictment. The inclusion of “intentionally” in the

indictment was surplusage and the citing of any culpable mental states was not actually needed to

support a conviction for retaliation for past action. We conclude that the indictment provided

adequate notice to the defendant that he was being charged with retaliation for past action, a Class

E felony, in violation of Tennessee Code Annotated section 39-16-510.

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The indictment more than sufficiently advised the defendant of the crime for which he was

charged. Furthermore, the trial transcript clearly reveals that the defendant’s counsel was able to

adequately prepare for trial. This defendant was amply protected form subsequent prosecution for

the same offense. Any alleged variance between the wording of the indictment and the proof at trial

was not fatal.

D. Prosecutor Comments

The defendant contends that the trial court erred in denying his motion for a new trial because

of certain comments made by the prosecution concerning his religious beliefs. The defendant refers

to the following comments made by the prosecution:

I hope that by my questioning and by what I’m saying now I am not offending any

of you. And I don’t mean to offend the defendant. His faith is obviously deeply

held. But just as someone who chooses to practice civil disobedience, who chooses

to break a law, he needs to be prepared to pay the consequences. Is that not why he

has to go the hard way?

The defendant argues that the prosecution’s comments violated his right to freedom of

religion. The record indicates that by the defendant’s own admission, he considers himself the Son

of God. The defendant made his religious beliefs the central theme of his defense. The defendant

testified that he sent the letter to the victim because the victim was not performing his duty as

chancellor. The defendant stated that the “authority of the letter” is a prophecy and if the recipients

of letters were not present at the Morgan County courtroom at a certain date and time, “they would

die, no matter who they were or the like.” There is no indication that the defendant’s religious

beliefs were ever compromised or ridiculed. We conclude it would be practically impossible not to

make reference to the defendant’s messianic beliefs in a closing argument. This issue is without

merit.

Conclusion

For the aforementioned reasons, we affirm the judgment of the trial court.

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JOHN EVERETT WILLIAMS, JUDGE

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