State of Tennessee v. Joseph Matthew Maka

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 7, 2001 Session

STATE OF TENNESSEE v. JOSEPH MATTHEW MAKA

Direct Appeal from the Circuit Court for Madison County

No. 99-901 Roger A. Page, Judge

No. W2001-00414-CCA-R3-CD - Filed December 28, 2001

Indicted for the offense of premeditated first degree murder, defendant was convicted of the lesser-

included offense of second degree murder and sentenced to twenty-three years. In this appeal as of

right, defendant presents the following issues: (1) whether the evidence was sufficient to support

the verdict; (2) whether the trial court erred in failing to grant a mistrial when the state referred to

defendant's being in jail pending trial; (3) whether the trial court erred in admitting defendant's prior

misdemeanor convictions for impeachment purposes; (4) whether the trial court erred in failing to

grant a mistrial when the prosecutor misstated the evidence in final argument; (5) whether the trial

court erred in failing to grant a mistrial when extraneous prejudicial information was present during

jury deliberations; and (6) whether the sentence was excessive. We find no error and affirm the

judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T.

WOODALL, J., joined.

George Morton Googe, District Public Defender (at trial and on appeal); and Nina Wong Seiler,

Assistant District Public Defender (on appeal), for the appellant, Joseph Matthew Maka.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant and Bertha Crawford previously had a child together. In July 1999 defendant

and the child resided in Michigan, and Crawford resided in Jackson, Tennessee. Crawford was

romantically involved with the victim, Calvin Waller.

The defendant brought his son from Michigan to visit with Crawford in Jackson in July 1999.

It is undisputed that the defendant killed the victim on July 21, 1999, by hitting him in the head

numerous times with a two-by-four board. The crucial issues at trial were whether the defendant

acted in self-defense and, if not, the degree of homicide committed. The jury rejected self-defense,

found the defendant not guilty of premeditated first degree murder, but found the defendant guilty

of second degree murder.

Jackson Police Officer Chad French testified that on July 21, 1999, he responded to a missing

person report on the victim at the Payless Motel in Jackson. Bertha Crawford resided there with the

victim and had filed the report. While on the premises, Officer French spoke with the defendant who

also occupied a room at the motel. The defendant denied knowledge of the victim’s whereabouts.

Subsequently, the defendant gave Officer French permission to search his room. Officer French

observed a bed pushed against a closet door, moved the bed, and discovered the battered body of the

victim. Duct tape was wrapped around the victim’s arms and hands. The apparent weapon, a three-

foot-long two-by-four board, was found between the sink and stove.

Jackie Kay Ballard testified that the defendant came to her residence on the morning of the

homicide requesting something to protect himself because the victim had threatened to kill him with

a gun. Ballard and the defendant unsuccessfully searched for a baseball bat, and the defendant left

with a two-by-four board.

Rachel Morris, the victim’s aunt, testified that she spoke with the victim by telephone on the

morning of the homicide. She stated that during the conversation the victim started “hollering, ‘Hold

on, Rachel, a minute. Hold on, hold on,’ just like he was scared to death.” She further stated he

never came back to the phone.

After defendant’s arrest, defendant gave a statement to Investigator Gerald Golden. In that

statement the defendant said he came from Michigan to Jackson to allow his son to visit with the

son’s mother, Bertha Crawford. When he arrived at the Payless Motel where the victim was staying,

he encountered the victim who was Crawford’s boyfriend. In the statement the defendant said the

victim became angry because he believed Crawford intended to go back to Michigan with the

defendant and their son. The defendant told Investigator Golden that the victim threatened to kill

the defendant and his son. The defendant claimed in his statement that on the morning of the

homicide the victim came into the defendant’s room; a struggle ensued; the defendant hit the victim

four or five times with the two-by-four; the defendant then duct-taped the victim’s hands because

the victim was moving; and the defendant put the victim in the closet.

Dr. Cynthia Gardner, a forensic pathologist, testified that she performed the autopsy on the

victim. The victim was 55 years of age, six feet tall, and weighed 164 pounds. The victim received

a minimum of six blows to the head which caused numerous skull fractures, and this blunt trauma

to the head caused death. Dr. Gardner found no defensive wounds on the victim. She further opined

that the finding of blood on the outside of the duct tape and the absence of blood beneath the duct

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tape indicated that a majority of the blows occurred after the victim’s wrists were bound with the

duct tape.

Roger Morrison, a forensic scientist, testified for the defense as an expert in blood pattern

analysis. Morrison opined that there were several possible explanations as to how blood got on the

outside of the duct tape. He opined that it was possible that the victim was bound after the blows

were struck; however, he acknowledged it was also possible that the victim received the blows after

he was bound.

The defendant testified in his defense. The defendant testified he secured the two-by-four

for protection after the victim threatened his and his son’s lives. He stated that on the morning of

the homicide, the victim charged into the defendant’s room and assaulted him. The victim did not

have a weapon. Defendant stated he hit the victim with the two-by-four board fearing the victim was

going to kill him and his son. The defendant testified he hit the victim several times with the board

and duct-taped his hands, fearing “if he got back up that he would hurt my son and me.” Defendant

denied hitting the victim after his hands were taped. On cross-examination, the defendant stated at

the time of the incident he weighed between 280 and 300 pounds, was six feet and two inches tall,

and was 37 years of age.

Dr. Dennis Wilson, a clinical psychologist, also testified for the defense. Based upon his

evaluation of the defendant, Dr. Wilson opined the defendant suffered from a major depressive

disorder, generalized anxiety disorders, and a borderline personality disorder. The defendant’s

intellectual functioning was borderline retarded. Dr. Wilson opined that the defendant was in

“legitimate fear” of the victim and did not act with premeditation.

Defendant’s 12-year-old son testified for the defense. The child testified that the victim

threatened to kill him on more than one occasion, and he told the defendant about the threats.

Based upon this evidence, the jury acquitted the defendant of premeditated first degree

murder; however, the jury convicted the defendant of the lesser-included offense of second degree

murder.

I. SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence is insufficient to support the jury’s verdict of guilt since the

evidence shows the defendant acted in self-defense. We respectfully disagree.

A. Standard of Review

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial

judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,

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885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view

of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This

court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant

demonstrates that the facts contained in the record and the inferences which may be drawn therefrom

are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a

reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is

the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was

sufficient for any rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

B. Analysis

Second degree murder is the “knowing killing of another.” Tenn. Code Ann. § 39-13-

210(a)(1). A “knowing” killing is one in which “the person is aware that the conduct is reasonably

certain to cause the result.” Tenn. Code Ann. § 39-11-106(20); see also State v. Ducker, 27 S.W.3d

889, 896 (Tenn. 2000).

Viewing the evidence in a light most favorable to the state, as we must, the evidence is

sufficient to support the verdict. The defendant, previous to the altercation, secured the two-by-four

board for possible use against the victim. The victim’s aunt stated she was having a telephone

conversation with the victim when he said, “Hold on,” got off the phone, and never returned to the

phone. The 300-pound, six-foot-two-inch, 37-year-old defendant battered the 164-pound, six-foot,

55-year-old, unarmed victim in the head with this crude weapon a minimum of six times with

sufficient force to cause numerous skull fractures. See T.P.I. - CRIM. 40.06 (5th ed. 2000) (pattern

jury instruction noting the “relative strengths and sizes” of the parties are relevant in determining the

issue of self-defense); see also Bass v. State, 191 Tenn. 259, 231 S.W.2d 707, 713 (1950). The

forensic pathologist opined that the majority of the blows occurred after the victim’s hands were

taped. Although the defendant’s forensic scientist opined this was not necessarily true, the weight

and value to be given expert testimony is for the jury. See State v. Carter, 831 S.W.2d 300, 302

(Tenn. Crim. App. 1991). Furthermore, it is the jury’s prerogative to reject self-defense. See State

v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997). Accordingly, a rational trier of fact could

conclude beyond a reasonable doubt that the defendant did not act in self-defense and further

conclude he knowingly killed the victim.

II. REFERENCE TO DEFENDANT’S BEING IN CUSTODY

At the time of the homicide, the evidence showed the defendant weighed almost 300 pounds.

At the time of trial, the defendant had apparently lost considerable weight. The prosecuting attorney

asked the defendant, “You’ve lost a lot of weight in jail, haven’t you?” Defendant requested a

mistrial; the prosecutor apologized for the “slip” in making reference to the defendant being in jail;

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the trial court gave a curative instruction to the jury; and the trial court denied the motion for

mistrial. Defendant contends the trial court erred in failing to grant a mistrial.

The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn

that decision absent an abuse of discretion. State v. Brown, 53 S.W.3d 264, 284 (Tenn. Crim. App.

2000). The burden of establishing the necessity for mistrial lies with the party seeking it. State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be

mechanically applied in making this determination, and all circumstances should be taken into

consideration. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

Defendant contends this prosecutorial reference to his being in jail deprived him of the

indicia of innocence. See Estelle v. Williams, 425 U.S. 501, 517, 96 S. Ct. 1691, 1699, 48 L. Ed.

2d 126 (1976) (holding that identifiable prison garb bears an unmistakable mark of guilt). This brief

reference to the defendant being in custody pending trial hardly compares to a defendant’s appearing

in shackles before the jury. A panel of this court has found no error in the trial court’s advising the

jury that the defendant was incarcerated and had an appointed attorney. State v. Carlos Demetrius

Harris, No. E2000-00718-CCA-R3-CD, 2001 WL 9927, at *5 (Tenn. Crim. App. filed January 4,

2001, at Knoxville). Regardless, we conclude the trial court’s prompt curative instruction to

disregard the reference rendered the brief reference harmless. See State v. Nesbit, 978 S.W.2d 872,

885 (Tenn. 1998) (noting jury is presumed to have followed instructions given by trial court). The

trial court was well within its discretion in denying the motion for mistrial.

III. IMPEACHMENT BY PRIOR CONVICTIONS

Defendant contends the trial court erred in admitting for impeachment purposes his 1992

Michigan misdemeanor convictions for receiving and concealing stolen property and altering and

passing postal money orders. We disagree.

The state may use a prior adult conviction to impeach the testimony of an accused in a

criminal prosecution if: (a) the conviction was for a crime that is punishable by death or

imprisonment in excess of one year or a misdemeanor involving dishonesty or false statement; (b)

less than ten years has elapsed between the date the accused was released from confinement and the

commencement of the prosecution; (c) the state gives reasonable written notice of the particular

conviction or convictions it intends to use to impeach the accused prior to trial; and (d) the trial court

finds that the probative value of the felony or misdemeanor on the issue of credibility outweighs its

unfair prejudicial effect on the substantive issues. Tenn. R. Evid. 609; see State v. Mixon, 983

S.W.2d 661, 674 (Tenn. 1999).

The trial court properly concluded both of these misdemeanor convictions involved

dishonesty. The convictions were within ten years, and the state had given proper notice. The trial

court further found no similarity between the prior convictions and the crime on trial. See State v.

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Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) (holding court should assess the similarity

between the prior conviction and the crime on trial in determining probative value versus prejudice).

Finally, the trial court found their probative value outweighed any unfair prejudice. The trial court’s

determination under Rule 609 will not be reversed absent an abuse of discretion. State v. Blanton,

926 S.W.2d 953, 960 (Tenn. Crim. App. 1996). We conclude the trial court did not err in allowing

these convictions into evidence for impeachment purposes.

IV. FINAL ARGUMENT

Defendant contends the prosecuting attorney mischaracterized the evidence in his final

argument when he stated the following:

I submit to you all of the proof shows that the victim was hit in a

hopeless [sic] state. That’s the important thing. The victim was hit

in a helpless state.

It indicates - - The evidence indicates that he was hit either when

his wrists were bound or when he was unconscious, or at least injured

to the degree that he could not raise his hands up to get any blood on

his wrists.

The state contends this was a fair comment based upon the evidence. We agree with the state.

Generally, the scope of closing argument is subject to the trial court’s discretion. State v.

Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). However, the parties should be granted wide

latitude provided the argument is “temperate, predicated on evidence introduced during the trial,

relevant to the issues being tried, and not otherwise improper under the facts or law.” State v.

Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999).

The prosecutor’s statement was a fair characterization of the testimony of Dr. Cynthia

Gardner. Dr. Gardner was of the opinion that most of the blows to the victim’s head were struck

after his wrists were bound with duct tape. Dr. Gardner based her opinion upon the absence of blood

beneath the tape and the presence of blood on the tape. Defendant contends that Dr. Gardner’s

statement on cross-examination that “one plausible theory is that this blood that got on the duct tape

actually did not come from a blow” negates her previous testimony. We do not interpret her

testimony in such a fashion. Accordingly, the final argument by the prosecutor was appropriate.

V. JURY DELIBERATIONS

Defendant contends the trial court erred in not granting a mistrial when extraneous prejudicial

information found its way into the jury’s deliberations. We find no reversible error.

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Dr. Nat T. Winston examined the defendant prior to trial in an effort to determine

competency to stand trial and defendant’s mental condition at the time of the offense. Dr. Winston

concluded that the defendant was competent and insanity could not be supported. His three-page

report was made an exhibit in a pre-trial hearing. This report was inadvertently sent into the jury

room with other exhibits. Defendant contends Dr. Winston’s opinion in the report that the defendant

was “malingering” was prejudicial to the issue of self-defense.

When the presence of this report in the jury room was made known to the trial court, it voir

dired the jury as to those who had seen the report. Only two jurors indicated they had seen the

report. The court and counsel then questioned these two jurors out of the presence of the other

jurors. One juror indicated he had read the report; he could totally disregard the report; and it would

have no effect upon his deliberations. The other juror indicated he had “just looked at the cover

basically” and did not go through it in any detail. The juror indicated he would not consider the

report in any way during his deliberations. Both jurors assured the court they had not discussed the

report with any other jurors. The trial court denied defendant’s request for a mistrial.

If a juror has been exposed to extraneous prejudicial information, a rebuttable presumption

of prejudice arises with the burden shifting to the prosecution to demonstrate its harmlessness. State

v. Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997). We conclude the report was

extraneous information sufficient to shift the burden to the state to demonstrate its harmlessness.

See State v. Blackwell, 664 S.W.2d 686, 688-89 (Tenn. 1984). We must now determine whether the

state has carried its burden in showing the harmlessness of this information.

We first note the trial court admonished both jurors that the report should not be considered,

and both jurors unequivocally indicated it would not affect their deliberations. As previously stated,

the jury is presumed to follow the trial court’s instructions. See Nesbit, 978 S.W.2d at 885. We

further note that the jury acquitted the defendant of premeditated first degree murder and convicted

him of second degree murder. The report obviously did not prejudice the defendant in this regard.

We further conclude that, in light of all the facts and circumstances in this case, the defendant was

not prejudiced as to self-defense, especially in light of the trial court’s prompt curative instructions.

This issue lacks merit.

VI. SENTENCING

Defendant contends his sentence of 23 years was excessive. Again, we disagree.

A. Standard of Review

This court’s review of the sentence imposed by the trial court is de novo with a presumption

of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing principles and all

relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial

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court fails to comply with the statutory directives, there is no presumption of correctness and our

review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

Second degree murder is a Class A felony which carries from 15 to 25 years as a Range I

offender. See Tenn. Code Ann. § 40-35-112(a)(1). The presumptive sentence for a Class A felony

is 20 years, which is the mid-point of the range. Tenn. Code Ann. § 40-35-210(c). No particular

weight for enhancement or mitigating factors is prescribed by the statute, as the weight given to each

factor is left to the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record. State v. Moss, 727

S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); Tenn.

Code Ann. § 40-35-210 Sentencing Commission Comments.

If our review reflects that the trial court followed the statutory sentencing procedure, imposed

a lawful sentence after giving due consideration and proper weight to the factors and principles set

out under our sentencing law, and the trial court’s findings of fact are adequately supported by the

record, then we may not modify the sentence even if we would have preferred a different result.

State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

In this case, the record reveals the trial court meticulously considered the enhancement and

mitigating factors, the sentencing principles, and all relevant facts and circumstances. Accordingly,

we accord the trial court’s sentence a presumption of correctness.

B. Analysis

The trial court found the defendant had a previous history of criminal convictions consisting

of three misdemeanors. See Tenn. Code Ann. § 40-35-114(1). The trial court did “not [give this

enhancement factor] a lot of weight.” The trial court properly considered this enhancement factor.

The trial court further found the victim was treated with exceptional cruelty. See Tenn. Code

Ann. § 40-35-114(5). Treatment of a victim with exceptional cruelty is not an element of the offense

of second degree murder and may, under proper circumstances, be considered as an enhancement

factor. See State v. Gray, 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997). However, proper

application of this factor requires a finding of cruelty “over and above” what is required for the

offense itself. State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001). This enhancement factor applies

in cases dealing with abuse or torture. See State v. Alvarado, 961 S.W.2d 136, 151 (Tenn. Crim.

App. 1996). When applying this enhancement factor, the trial court should state the actions of the

defendant, apart from the elements of the offense, which constitute exceptional cruelty. State v.

Goodwin, 909 S.W.2d 35, 45-46 (Tenn. Crim. App. 1995). Here, the defendant beat the unarmed

victim with a two-by-four striking him a minimum of six times in the head with sufficient force to

create several skull fractures. There was also evidence to indicate that some of the blows were struck

after the victim’s hands were bound. The defendant barricaded the victim in a closet and deprived

him of the opportunity to seek medical assistance, if indeed he were alive. Under these

circumstances, we will not disturb the trial court’s application of this enhancement factor.

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The trial court concluded the defendant utilized a deadly weapon in committing this offense.

See Tenn. Code Ann. § 40-35-114(9). The use of a deadly weapon is not an element of the offense

of second degree murder and may properly be considered an enhancement factor. See State v.

Baxter, 938 S.W.2d 697, 705-06 (Tenn. Crim. App. 1996); State v. Butler, 900 S.W.2d 305, 313

(Tenn. Crim. App. 1994). A deadly weapon includes anything that in the manner of its use is

capable of causing death or serious bodily injury. See Tenn. Code Ann. § 39-11-106(a)(5)(B). The

two-by-four clearly qualified as a deadly weapon. The trial court properly applied this enhancement

factor.

Defendant complains the trial court erroneously refused to consider certain mitigating factors.

He contends the trial court erred in refusing to find that the defendant acted under strong provocation

and that substantial grounds existed tending to justify his conduct, though failing to establish a

defense. See Tenn. Code Ann. § 40-35-113(2), (3). The trial court’s refusal to apply these

mitigating factors is supported by the evidence. Defendant also complains the trial court refused to

acknowledge his lack of prior violent criminal behavior. See Tenn. Code Ann. § 40-35-113(13).

The trial court properly rejected this miscellaneous factor based upon the defendant’s prior

conviction for assault and battery.

The defendant further complains that the trial court erred by giving insignificant weight to

the defendant’s mental condition, his motivation to protect his son, his remorse, and his record as

a good worker and provider. See Tenn. Code Ann. § 40-35-113(8), (13). However, the trial court

did consider and give some weight to each of these mitigating factors.

It appears defendant’s primary argument is that the trial court gave improper weight to

enhancement and mitigating factors. However, the weight given to each enhancement or mitigating

factor is left to the discretion of the trial court so long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record. Moss, 727 S.W.2d

at 238. Here, the trial court made exemplary and detailed findings; it fully complied with the

sentencing act; and its findings are supported by the record. The trial court did not err in sentencing

the defendant to a term of twenty-three years, which is three years above the presumptive sentence

and two years below the maximum sentence.

CONCLUSION

Based upon the above analysis, we affirm the judgment of the trial court.

___________________________________

JOE G. RILEY, JUDGE

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