State of Tennessee v. Matthew Glen Howell

01/11/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 18, 2017 Session

STATE OF TENNESSEE v. MATTHEW GLEN HOWELL

Appeal from the Criminal Court for Davidson County

No. 2015-B-857 Monte Watkins, Judge

No. M2016-01812-CCA-R3-CD

The defendant, Matthew Glen Howell, who was originally charged with aggravated

assault, appeals his 2016 Davidson County Criminal Court conviction of simple assault,

which was imposed by the trial court after the jury found the defendant guilty of the

inapplicable lesser included offense of reckless aggravated assault. The defendant argues

that, because the jury acquitted him of the crime of intentional or knowing aggravated

assault and instead found him guilty of reckless aggravated assault, the trial court erred

by amending the conviction offense to one that required an intentional or knowing mens

rea. The defendant also challenges several of the trial court’s evidentiary rulings.

Because the jury found the defendant guilty of a crime that did not exist under the facts of

the case and because double jeopardy and collateral estoppel principles precluded the trial

court from imposing a conviction that required an element of which the defendant had

already been acquitted, the defendant’s conviction of simple assault is vacated, and the

case is dismissed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated; Case Dismissed

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

EVERETT WILLIAMS, J., joined. TIMOTHY L. EASTER, J., filed a separate dissenting

opinion.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Matthew Glen Howell.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Glenn R. Funk, District Attorney General; and Derry Harper, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

In April 2015, the Davidson County Grand Jury charged the defendant with

one count each of resisting arrest and aggravated assault by causing the victim, Liela

Avila, to fear bodily injury by use or display of a deadly weapon. The trial court

conducted a jury trial in February 2016.

The State’s proof at trial showed that the victim moved to Nashville in

early September of 2014 to pursue a career in music. Approximately one month later,

she met the defendant at a karaoke bar and mentioned that she was searching for a new

place to live. The defendant told the victim that he had a room to rent at his residence at

1236 Canyon Ridge Court, and the victim agreed to pay $350 per month in rent. The

victim moved into the defendant’s residence around October 12, 2014, and met the

defendant’s then-girlfriend, Alisha Brown, who also resided at the defendant’s home.

The victim testified that she, the defendant, and Ms. Brown got along well

at first. At some point in November, the defendant’s dog escaped from the house and

attacked a neighbor’s cat. According to the victim, the defendant blamed the victim for

the incident and told her that she owed “a couple thousand dollars” for the cat’s

veterinary bills. The victim received a citation from Animal Control. She went to court,

explained that she “wasn’t guilty,” and the court cited the defendant instead “because it

was his dog and [the victim] wasn’t even home at the time” of the incident. The

defendant then informed the victim that he and the cat’s owner had agreed to settle the

matter for approximately $1,600 and that the victim “was gonna have to pay for it.”

Because the victim was preparing to fly to Los Angeles to spend

Thanksgiving with her family and because she was concerned about starting a “heated

argument” with the defendant when she was leaving all of her personal belongings in the

defendant’s house, the victim “just tried to play it cool” and told the defendant that she

would “deal with” the situation when she returned to Nashville on December 8.

At some point after moving into the defendant’s house but before leaving

town for Thanksgiving, the victim purchased a 1996 Chevrolet Lumina from a friend of

the defendant’s, whose name the victim could not recall. The victim testified that she

paid the friend $1,600 and that he “signed over the pink slip” for the vehicle while the

two were standing in the kitchen of the defendant’s residence. Through the victim’s

testimony, the State introduced into evidence a copy of the vehicle’s certificate of title,

which lists the victim as the owner of the vehicle. The victim denied obtaining the

vehicle’s title from the defendant or paying the defendant for the vehicle.

-2-

While the victim was in California, the defendant contacted her to inform

her that her new vehicle, which was parked on the street in front of the defendant’s house,

was blocking his mailbox and that the mailman was going to have the car towed because

of his inability to deliver the mail. The defendant asked her to mail him a set of her car

keys so that he could move her vehicle and prevent its being towed. Because the victim

had two sets of car keys, she mailed one set to the defendant.

On the evening of December 7, the victim received a text message from the

defendant, which stated, “‘You need to find a new place to live, because you can’t live

here anymore.’” The victim sent a text message back to the defendant, asking him what

he was talking about, but the defendant never responded. When the victim returned to

Nashville the following evening, she took a taxi to the defendant’s residence, arriving

between 9:00 and 9:30 p.m. The front door to the residence was unlocked, and the victim

walked inside. She immediately asked the defendant about the location of her vehicle,

having noticed that it was not parked in front of the house. The defendant responded,

“‘You aren’t going to see that car again, unless you pay me the money for the vet bill.’”

The victim “tried to reason with him” but found it difficult because the defendant “was

very intoxicated.” The victim eventually told the defendant that she would “walk to a

place” so that she could ask her “parents to wire [her] some money.” The victim testified

that her intent was to pay “half” of the veterinarian’s bill, explaining that, even though

the dog’s escape from the residence was not her fault, she “was willing to pay six-

hundred bucks, to just get [her] things and leave and never look back, and just get away

from that place.”

Approximately 45 minutes later, the victim returned to the defendant’s

residence and again entered though the unlocked front door. The victim informed the

defendant that she had the money but that she needed to know the location of her car.

The defendant replied that the car had been parked in his garage all along. The victim

then described what happened next:

I started to gather some of my belongings and started

to put it in the car. Again, he was very intoxicated. He was

downstairs on the sofa. He wasn’t really – he didn’t really

know what was going on. He was just kind of incoherent.

I was just trying to just get my things and just go, as

quickly as I could. And, when I had most of my stuff packed

away, I was – I had told him, “I’m leaving, and I’m not

giving you any money. And, if you don’t let me leave, I’m

gonna call the cops.”

-3-

....

After that I – at that – when I said that, I was upstairs,

at the top of the stairs, still gathering some of my things from

my room; the [d]efendant was at the bottom of the stairs.

I turned around back to my room, just to grab a coupla

[sic] more things. And, as I left the room and went to the

stairs, I saw the [d]efendant with a gun, coming – stumbling

up the stairs towards me, pointing the gun at my head.

....

He had the gun in his right hand. He had his hand on the

banister; and he was stumbling drunk up the stairs, pointing

the gun at me, and he was yelling at me.

....

He said, “You’re leaving my f[***]ing house right

f[***]ing now.”

And I said, “Please don’t point a gun at me.”

And he said, “[Y]ou are godd[***] certain. Get the

f[***] out of my f[***]ing home now.”

Through the victim’s testimony, the State introduced into evidence and played for the

jury an audio recording of the preceding four-sentence exchange that the victim made on

the night in question using an application on her cellular telephone.

The victim testified that she was “in shock” and was “very afraid that the

gun was going to go off and shoot” her. According to the victim, as the defendant began

ascending the stairs toward her, she developed “tunnel vision,” dropped her remaining

personal belongings, and fled through the front door. The victim then ran to a neighbor’s

house, where she called 9-1-1 to report that her “roommate pointed a gun at” her and

“wouldn’t let [her] leave with [her] property.”

Metropolitan Nashville Police Department (“Metro”) Officers Joshua

Vaughn and Wallis Massey were the first to respond to a call of a “domestic-related”

situation that involved a handgun at 1236 Canyon Ridge Court in the early morning hours

-4-

of December 9. Officer Massey initially spoke with the victim, who was standing outside

of a residence a few houses away from the subject address, and the victim told Officer

Massey that the defendant had threatened her with a handgun if she did not pay her rent.

Officer Vaughn and Officer Justin McCormick, who had just arrived on the scene,

approached the defendant’s residence, and the defendant appeared at the front door.

When the officers asked the defendant to explain what had transpired, the defendant

repeatedly claimed that he had done “nothing wrong” and that he had “never placed

hands on the victim.” When Officer McCormick asked the defendant if he was in

possession of any weapons, the defendant responded that he had weapons inside the

house but none on his person. Officer McCormick asked the defendant if he could

conduct a pat-down, and the defendant adamantly refused. Believing that a pat-down

was necessary to ensure his safety, Officer McCormick grabbed the defendant’s left arm,

prompting the defendant to turn and pull away from Officer McCormick. Other officers

then stepped in to assist Officer McCormick in placing handcuffs on the defendant.

When the defendant had been taken into custody and given his Miranda

warnings, the defendant told Officer McCormick that “he had a handgun during the

incident and that it was down to the side but he never pointed it at the victim.” The

defendant also stated that “he wasn’t stupid and wouldn’t have one in the chamber.”

Detective Daniel Polk, who spoke with the defendant on the scene after issuing Miranda

warnings, recalled that the defendant had told him that he had the gun “in [his] hand” but

that he “did not point it at” the victim during the dispute. Officer Vaughn recovered the

handgun at issue, which was a semiautomatic Glock and which was loaded with a

magazine containing 45-caliber bullets.

After the defendant had been placed in a police car, Officer Massey and

Metro Officer James Jensen accompanied the victim back inside the residence so that she

could retrieve her remaining belongings. When the victim entered her car inside the

garage, the engine would not start. The victim then asked the officers if they would assist

her in pushing her vehicle into the street so that she could have the car towed. The

officers informed the victim that they were unable to assist her because they had no proof

of ownership of the vehicle, so the victim placed her car into neutral and pushed the car

onto the street. The victim slept inside her vehicle that night, and the following morning,

the victim had the vehicle towed.

On cross-examination, the victim clarified that she had paid the defendant a

total of $700 in rent: $350 for October and another $350 on November 1. The victim

denied that the defendant had “kicked [her] out” of his house in November, but she

admitted that she had never had a key to the residence. Although the victim admitted that

she had contacted her friend, Shawn, during the time period when she left the defendant’s

-5-

house under the guise of collecting money for him, she denied that Shawn had ever

entered the defendant’s house on the night in question.

With this evidence, the State rested. Following a Momon colloquy and the

trial court’s denial of the defendant’s motion for judgments of acquittal, the defendant

elected to testify and to present proof.

Edward Allen Yeargan testified that he had power of attorney for his wife’s

parents and that he had sold their 1996 Chevrolet Lumina to the defendant on December

1, 2014. Mr. Yeargan testified to the difficulties the defendant had in locating the

original title document and in actually getting the vehicle titled in the defendant’s name.

Through Mr. Yeargan’s testimony, the defense marked for identification purposes

photocopies of the purported bill of sale and duplicate car title. Mr. Yeargan explained

that he gave the original documents to the defendant and that the originals were either

“taken” or “lost.”

Ms. Brown, a correctional officer at the Tennessee Prison for Women,

resided with the defendant at 1236 Canyon Ridge Court in 2014. At the time they met

the victim, the defendant was out of work and Ms. Brown was the primary wage-earner.

Because their mortgage payment was $1,500 per month, they thought that the victim

would be “a good candidate” for rental income.

Ms. Brown recalled that the victim never paid any rent, and Ms. Brown was

“under the assumption” that when the victim left to go to California, she did not plan to

return to Nashville. Ms. Brown believed that she and the defendant “were to package the

rest of [the victim’s] stuff up and mail it on out to her.” Ms. Brown was surprised when

the victim just “walk[ed] in through [the] front door” on the night of December 8. The

victim’s “eyes seemed bloodshot,” and she did not appear to be “completely sober.” The

victim was accompanied by an unknown man, and the two proceeded upstairs to the

victim’s former bedroom. Ms. Brown recalled that the victim mentioned “grabbing one

or two items,” so Ms. Brown was under the impression that she would be leaving soon.

The victim and her friend, however, stayed at the house, despite Ms. Brown’s repeated

requests over the course of nearly two hours that she leave the premises.

Eventually, Ms. Brown went to bed because she needed to wake up at 4:00

a.m. to get to work. At some point, she was awakened by the defendant, who told her

that police officers were at the front door.

The defendant testified that he met the victim at a local karaoke bar and that

he overheard her talking about living out of her car. The defendant offered to let the

victim move into his second-floor bedroom, provided she was willing to sign a lease

-6-

agreement and give the defendant a security deposit. The victim agreed, moving in

around mid-October, but she never complied with either requirement. According to the

defendant, at some point after the victim moved in, she “got high and careless” and “left

the door open,” permitting the defendant’s dog to escape and attack a neighbor’s cat.

Because the victim refused to cover the veterinary bills and had never signed a lease or

paid any rent, the defendant told her that she must vacate the premises. The defendant

recalled that the victim had been gone for approximately one month when she,

accompanied by an unknown male, suddenly entered his house on the night of December

8.

The defendant testified that both the victim and her friend “were so high”

that they were “incoherent.” Over the course of approximately two hours, the defendant

repeatedly demanded that they leave his residence, but the couple refused to go.

Eventually, the defendant forced the male companion out of the house when the man “put

hands on” the defendant. The defendant insisted that he never pointed a handgun at or

threatened the victim, but he acknowledged that he raised his voice. The defendant did,

however, say that the victim had threatened to harm herself and accuse him of inflicting

the harm. Although he did not see it happen, the defendant believed that the victim or her

friend stole his original certificate of title to his Chevrolet Lumina during the time they

were inside the residence. When the defendant returned to his residence the next day

following his release from jail, he was unable to locate the certificate of title.

The defendant finally was successful in forcing the victim to leave, and he

locked the front door behind her. Less than half an hour later, officers arrived at his

house. When the defendant answered the door, he informed the officers that the victim

had broken into his house and that he wished to take out a restraining order against her.

The defendant acknowledged that he refused to allow the officers to enter his residence,

but he denied resisting arrest, testifying that the officers had used excessive force in their

efforts to handcuff him and place him under arrest. The defendant also denied telling

Detective Polk that he had been holding a handgun during his encounter with the victim.

At the close of the proof and following closing arguments, the trial court

charged the jury, without objection from either party, that reckless aggravated assault was

a lesser-included offense of aggravated assault. The instruction provided to the jury with

respect to the elements of the crime of reckless aggravated assault read as follows:

For you to find the [d]efendant guilty of this offense,

the State must have proven – proven beyond a reasonable

doubt the existence of the following essential elements:

-7-

(1) That the [d]efendant recklessly caused another to

reasonably fear imminent bodily injury; and

(2) That the act involved the use of or display of a deadly

weapon.

The jury was also instructed that reckless endangerment and simple assault were lesser

included offenses of aggravated assault.

The jury then acquitted the defendant of both aggravated assault and

resisting arrest but found him guilty of reckless aggravated assault. In its role as

thirteenth juror, the trial court affirmed the jury’s verdict. Prior to sentencing, the

defendant moved to dismiss the reckless aggravated assault conviction on the ground that

the crime did not exist based upon the facts of the case. The trial court agreed that

reckless aggravated assault and reckless endangerment had been improperly charged

because the victim suffered no bodily injury, but the trial court amended the jury’s

verdict to that of simple assault. Following a sentencing hearing, the trial court imposed

a sentence of 11 months and 29 days of supervised probation, following the service of 30

days in jail.

Following the trial court’s denial of the defendant’s motion for new trial,

the defendant filed a timely notice of appeal. In this appeal, the defendant contends that

because the jury acquitted him of the crime of intentional or knowing aggravated assault

and instead found him guilty of reckless aggravated assault, the trial court erred by

amending the conviction offense to one that required an intentional or knowing mens rea.

In addition, the defendant asserts that the trial court abused its discretion by excluding

evidence of his civil lawsuit against Metro officers involved in his arrest and by denying

his request to impeach the victim pursuant to Tennessee Rules of Evidence 608 and 616.

We will address each issue in turn.

I. Reckless Aggravated Assault Conviction

The defendant first contends that the trial court erred by amending his

conviction offense of reckless aggravated assault to that of simple assault, arguing that

principles of double jeopardy and collateral estoppel preclude his conviction of an

offense which requires an intentional or knowing mens rea. The State counters that the

proper remedy is to remand the case for a new trial on “all proper lesser included

offenses.”

Both the federal and state constitutions protect an accused from being

“twice put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V;

-8-

Tenn. Const. art. 1, sec. 10. The state and federal provisions, which are quite similar in

verbiage, have been given identical interpretations. See State v. Waterhouse, 8 Tenn. (1

Mart. & Yer.) 278, 284 (1827) (“[W]e did not feel ourselves warranted in giving [the

double jeopardy provision of the state constitution] a construction different from that

given to the constitution of the United States, by the tribunal possessing the power, (and

of pre-eminent qualifications) to fix the construction of that instrument.”). The United

States Supreme Court has observed of the double jeopardy clause:

Our cases have recognized that the Clause embodies two

vitally important interests. The first is the ‘deeply ingrained’

principle that ‘the State with all its resources and power

should not be allowed to make repeated attempts to convict

an individual for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he may

be found guilty.’ The second interest is the preservation of

‘the finality of judgments.’

Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 2365-66 (2009) (citations

omitted). To these ends, our state supreme court has observed that the Double Jeopardy

Clause provides “three separate protections: (1) protection against a second prosecution

for the same offense after acquittal; (2) protection against a second prosecution for the

same offense after conviction; and (3) protection against multiple punishments for the

same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

Whether multiple convictions violate double jeopardy is a mixed question

of law and fact that we review de novo with no presumption of correctness. State v.

Smith, 436 S.W.3d 751, 766 (Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840,

846 (Tenn. 2009)).

Because the precise language of the statutes regarding assault is so germane

to our discussion of this issue and the facts of this case, we include them, in pertinent

part, here:

Assault. – (a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily

injury to another; [or]

(2) Intentionally or knowingly causes another to reasonably

fear imminent bodily injury; . . . .

-9-

T.C.A. § 39-13-101(a)(1)-(2). Under this formulation, the offense of reckless assault

requires bodily injury.

Aggravated Assault. – (a)(1) A person commits aggravated

assault who:

(A) Intentionally or knowingly commits an assault as defined

in § 39-13-101, and the assault:

(i) Results in serious bodily injury to another;

(ii) Results in the death of another; [or]

(iii) Involved the use or display of a deadly

weapon; . . . .

(B) Recklessly commits an assault as defined in § 39-13-

101(a)(1), and the assault:

(i) Results in serious bodily injury to another;

(ii) Results in the death of another; or

(iii) Involved the use or display of a deadly weapon.

T.C.A. § 39-13-102(a)(1). By incorporating the offense of reckless assault into reckless

aggravated assault, the statute carries forward the requirement of bodily injury.

Reckless Endangerment. – (a) A person commits an offense

who recklessly engages in conduct that places or may place

another person in imminent danger of death or serious bodily

injury.

....

(b)(2) Reckless endangerment committed with a deadly

weapon is a Class E felony; . . . .

T.C.A. § 39-13-103(a), (b)(2).

Here, the defendant was acquitted of the offense of aggravated assault, the

pertinent elements of which were intentionally or knowingly causing the victim to

reasonably fear imminent bodily injury through the display of a deadly weapon. See

T.C.A. § 39-13-101(a)(1)(A)(iii). The jury convicted the defendant of the offense of

reckless aggravated assault, which, as charged, meant that the defendant recklessly

caused the victim to reasonably fear imminent bodily injury through the display of a

deadly weapon. See T.C.A. § 39-13-101(a)(1)(B)(iii). The problem with this conviction,

as acknowledged by the trial court, is that reckless aggravated assault “requires bodily

injury.” State v. Goodwin, 143 S.W.3d 771, 776 (Tenn. 2004). Similarly, felony reckless

endangerment “is not a lesser-included offense of aggravated assault committed by

intentionally or knowingly causing another to reasonably fear imminent bodily injury by

- 10 -

use or display of a deadly weapon.” State v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002).

Thus, the trial court chose to amend the defendant’s conviction to that of simple assault,

noting that simple assault only required that the defendant “place the [victim] in fear.”

The trial court’s decision to amend the defendant’s conviction to simple

assault, however, was in error. Although the jury was charged on the lesser included

offense of reckless aggravated assault that did not exist under the facts presented, the jury

obviously believed that the evidence was sufficient to convict the defendant of this non-

existent offense. The only distinction between aggravated assault and reckless

aggravated assault as set forth in the jury instructions was the mens rea: intentional or

knowing versus reckless. Therefore, the jury found that the defendant did not act with

knowledge or intent, and the first category of double jeopardy protection, which

precludes a second prosecution for the same offense after acquittal, attached to the

finding of that mens rea. See Watkins, 362 S.W.3d at 541. Accordingly, when the trial

court amended the defendant’s conviction to simple assault, it did so in violation of the

defendant’s protection against double jeopardy because simple assault is an offense that

requires an intentional or knowing mental state and specifically excludes the mens rea of

recklessness. See T.C.A. § 39-13-101(a)(2).

The State relies on State v. Goodwin in support of its position that the case

should be remanded to the trial court for a new trial “on all proper lesser included

offenses.” Goodwin was charged with aggravated assault by placing his victims in fear

by use or display of a deadly weapon, and the jury found him guilty of the lesser-included

offenses of reckless aggravated assault. Goodwin, 143 S.W.3d at 776. After determining

that the evidence was insufficient to support the convictions of reckless aggravated

assault because there was no proof of bodily injury, the high court remanded the case for

a new trial on the lesser-included offense of simple assault, which “the jury never

reached.” Id. at 776-77.

In Goodwin, however, the issue of double jeopardy was never raised. More

importantly, Goodwin was decided before State v. Thompson, 285 S.W.3d 840 (Tenn.

2009). Thompson was charged, in a three-count indictment, with the premeditated first

degree murder and felony murder of one victim (Counts I and II) and the attempted first

degree murder of a second victim (Count III). Id. at 841. The jury convicted Thompson

of the lesser-included offenses of second degree murder in Count I and attempted second

degree murder in Count III, and the trial court declared a mistrial as to Count II. Id.

Because of jury instruction errors, this court reversed the convictions and remanded for a

new trial. Id. The State dismissed Count III prior to the second trial and only prosecuted

Thompson on the second degree murder and felony murder of the first victim. Id. At the

conclusion of the second trial, the jury convicted him of the lesser-included offenses of

voluntary manslaughter on Count I and second degree murder on Count II. Id. On

- 11 -

appeal to this court, Thompson argued that “because the jury had in effect returned a

verdict of acquittal on the attempted first degree murder of the second victim, and

because the alleged attempted first degree murder was the only possible predicate offense

to support the felony murder charge in the retrial,” principles of double jeopardy and

collateral estoppel precluded the State from prosecuting him for felony murder. Id. This

court affirmed the convictions, and the supreme court granted permission to appeal. Id.

The supreme court discussed the law of collateral estoppel, as applied

through double jeopardy law, stating that the United States Supreme Court, in Ashe v.

Swenson, 397 U.S. 436, 443 (1970), “defined collateral estoppel to mean that when an

issue of fact has been determined by a valid and final judgment, it may not be litigated by

the same parties in any future litigation” and noted that “its application [was] ‘embodied

in the Fifth Amendment guarantee against double jeopardy.’” Thompson, 285 S.W.3d at

847-48 (quoting Ashe, 397 U.S. at 445). To determine whether collateral estoppel is

applicable, courts must “consider the indictment and pleadings, the evidence, the

instructions to the jury, and any other relevant matter ‘in a practical frame and viewed

with an eye to all the circumstances of the proceedings’” to “determine ‘whether a

rational jury could have grounded its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.’” Thompson, 285 S.W.3d at 848

(quoting Ashe, 397 U.S. at 444). The party relying upon collateral estoppel has the

burden to prove “that a specific point at issue has been previously and finally decided.”

Thompson, 285 S.W.3d at 848 (citations omitted).

In its analysis, the high court stated as follows:

[T]here were originally three counts in the indictment: (I) the

first degree premeditated murder of Robinson; (II) the first

degree felony murder of Robinson, predicated upon her death

being the result of an attempt to perpetrate the first degree

murder of Burgins; and (III) the attempt to commit the first

degree murder of Burgins. As to Counts I and II, first degree

murder is defined, in pertinent part as to this Defendant, as

follows: “(1) a premeditated and intentional killing of

another; (2) a killing of another committed in the perpetration

of or attempt to perpetrate any first degree murder . . . .”

[T.C.A.] § 39-13-202(a)(1)-(2) (Supp. 2000).

In the first trial, proof of premeditation to the

satisfaction of the jury was essential for a conviction as to

Count I. The first jury returned a verdict of second degree

murder, defined as the knowing killing of another, but,

- 12 -

implicitly, absent premeditation. See [T.C.A.] § 39-13-210

(1997). Similarly, as to Count III in the first trial, the attempt

to commit the first degree murder of Burgins, proof of

premeditation to the satisfaction of the jury was essential to a

conviction. The jury, however, reached a verdict of

attempted second degree murder, a knowing, but

unsuccessful, effort to kill another, and implicitly an attempt

absent the element of premeditation.

Obviously, the Defendant failed in his efforts to kill

Burgins. When the jury found an attempt to commit second

degree murder, their verdict necessarily established that the

evidence was insufficient on the element of premeditation.

That not only served as an acquittal of the primary charge, but

a rejection of the State’s theory that the Defendant had

attempted to kill Burgins with premeditation. Our

examination of the entire record of the evidence and the trial

court’s instructions to the jury leads us to the inevitable

conclusion that the jury could not “have grounded its verdict

in the first trial upon an issue other than that which the

Defendant seeks to foreclose.” Ashe v. Swenson, 397 U.S. at

444.

The first trial produced a final, unappealable judgment

as to the attempted first degree murder[, and a] judgment of

acquittal . . . is final upon entry. Fong Foo v. U.S., 369 U.S.

141, 143 . . . (1962) (quoting United States v. Ball, 163 U.S.

662, 671 . . . (1896)). . . .

....

Because an essential element of the offense had been

previously resolved by a jury in a manner favorable to the

Defendant, the doctrine of collateral estoppel should have

precluded the State from proceeding with the prosecution for

felony murder both under the United States Constitution and

independently under the Tennessee Constitution. Thus, the

conviction for second degree murder, as a lesser-included

offense of the felony murder charge, must be set aside.

Thompson, 285 S.W.3d at 851-55 (internal footnotes omitted).

- 13 -

In determining whether the present case falls within the ambit of the

collateral estoppel rule, we are aware that, in Ashe, the Supreme Court predicated the use

of collateral estoppel upon a factual issue’s being “determined by a valid and final

judgment.” Ashe, 397 U.S. at 445. In the present case, the issue of fact – whether the

defendant acted intentionally or knowingly – has been addressed as part of one, still-

ongoing case. Within the bounds of a given case, the law in some circumstances does not

countenance going behind a jury’s verdict to prove the intent of the jury. See, e.g., State

v. Davis, 466 S.W.3d 49, 72-77 (Tenn. 2015) (discussing inconsistent verdicts and

emphasizing that “‘[t]he validity accorded to [inconsistent] verdicts recognizes the

sanctity of the jury’s deliberations and the strong policy against probing into its logic or

reasoning, which would open the door to interminable speculation.’” (quoting United

States v. Zane, 495 F.2d 683, 690 (2nd Cir. 1974)); State v. Paul Allen St. Clair, No.

M2012-00578-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Apr. 16, 2013)

(Smith, J., concurring in part and dissenting in part) (“Our state supreme court has said

that jury nullification is neither a personal right of the accused nor of the jury itself,

although juries sometimes do nullify applicable law.” (citing Wright v. State, 394 S.W.2d

883, 885 (Tenn. 1965)). Thus, the singular, continuing case view might lead us to ignore

the verdict of guilty of reckless aggravated assault. On the other hand, however, the jury

submitted its not-guilty verdict on aggravated assault and its guilty verdict on reckless

aggravated assault. The trial court then rejected the latter verdict and did so properly.

We discern that Thompson supports the view that the critical fact issue was specifically

and finally determined by the jury: the defendant did not act intentionally or knowingly.

Thus, the trial court is estopped from subsequently entering a conviction of assault, an

offense predicated upon an intentional or knowing action.

The dissent would have this court follow the path urged by the State:

remand the case for a new trial on the lesser-included offense of simple assault.1 In

support of this position, the dissent cites a number of post-Thompson cases for the

proposition that a new trial on lesser-included offenses would be the appropriate remedy

where the greater offense did not stand. See State v. Whited, 506 S.W.3d 416, 447-48

(Tenn. 2016) (finding that although evidence was insufficient to support convictions of

especially aggravated sexual exploitation of a minor, double jeopardy principles did not

preclude State from retrying Whited on the lesser-included offense of attempt); State v.

Larkin, 443 S.W.3d 751, 818 (Tenn. 2013) (reversing and dismissing Larkin’s conviction

of first degree premeditated murder due to insufficient evidence but holding that Larkin

could be retried for second degree murder and any other appropriate lesser-included

1

The State actually urged this court to remand the case for a new trial on “all proper lesser

included offenses.” As previously stated, however, the lesser-included offense of reckless endangerment

was improperly charged due to the lack of bodily injury, leaving nothing but simple assault as a potential

lesser-included offense.

- 14 -

offenses); State v. Climer, 400 S.W.3d 537, 571 (Tenn. 2013) (finding that although

double jeopardy principles precluded a retrial of Climer on first degree premeditated

murder, State was not precluded from retrial on second degree murder and abuse of a

corpse); State v. Cross, 362 S.W.3d 512, 522-23 (Tenn. 2012) (vacating Cross’s

conviction of felony reckless endangerment because it had been improperly charged as a

lesser-included offense of aggravated assault where the victim had been placed in fear

and remanding for a new trial “on any lesser-included offense that ha[d] not already been

rejected by the jury”). These cases, however, are distinguishable from the instant case.

In Whited, Larkin, and Climer, the high court permitted a retrial on lesser-included

offenses that did not contain an element of which the respective defendants had been

acquitted, as in the case currently under review. Thus, double jeopardy would have no

applicablity in such scenarios. With respect to the high court’s decision in Cross, that

defendant was convicted of felony reckless endangerment as an erroneously-charged

lesser-included offense of aggravated assault, and the supreme court remanded the case

for a retrial on any lesser-included offenses that had “not already been rejected by the

jury.” Cross, 362 S.W.3d at 523. We do not know, however, what additional lesser-

included offenses had been considered and rejected by the jury, and, more importantly,

the question of whether a retrial on the offense of simple assault would have been

precluded by double jeopardy principles was never addressed.

In the instant case, the greater offense, aggravated assault, and the

conviction offense, reckless aggravated assault, have only three elements: the defendant’s

required mental state, the victim’s reasonable fear of imminent bodily injury, and the

defendant’s display of a deadly weapon. The two crimes are identical in nature with the

single exception of the required mental state. Presuming as we must that the jury

followed the instructions of the trial court, see State v. Cribbs, 967 S.W.2d 773, 784

(Tenn. 1998), and knowing, as previously discussed, that we cannot countenance jury

nullification, the only conclusion to be drawn under the specific facts of this case is that

the jury verdict necessarily includes a finding that the defendant did not act intentionally

or knowingly. Thus, the jury could not, as the dissent suggests, have grounded its verdict

in an issue other than that which the defendant seeks to estop. Moreover, we disagree

with the dissent’s conclusion that the jury’s acquittal of aggravated assault did not equate

to a “separate and distinct finding related to [the d]efendant’s mens rea.” To the

contrary, the acquittal did exatly that: it signaled its clear intent to acquit the defendant of

an intentional and knowing offense.

We therefore hold that a new trial on the offense of simple assault is barred

by double jeopardy and collateral estopped principles. Because there are no other

available lesser-included offenses, we vacate the trial court’s judgment convicting the

defendant of assault, and the case is dismissed.

- 15 -

Having concluded that the defendant’s conviction must be vacated, we

nevertheless will address the defendant’s remaining issues in the interests of judicial

economy and potential further appellate review.

II. Evidence of Federal Lawsuit

The defendant next contends that the trial court abused its discretion by

refusing to permit him to cross-examine Metro police officers regarding their bias.

Specifically, the defendant argues that he should have been permitted to question the

officers about the pending civil rights lawsuit he had filed against them in federal court,

in which he claimed that they had illegally arrested him by entering his home without a

warrant and without exigent circumstances, that they had illegally arrested Ms. Brown,

and that he was entitled to damages for, inter alia, injuries caused to his shoulder during

the arrest.

“The right to explore or examine witnesses for bias is a fundamental right,”

and “[a]n undue restriction of this right may violate a defendant’s right to confrontation

under the Sixth Amendment of the United States Constitution and Article 1, Section 9, of

the Tennessee Constitution.” State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001) (citations

omitted). A Confrontation Clause violation is indicated when a defendant shows “‘that

he was prohibited from engaging in otherwise appropriate cross-examination designed to

show a prototypical form of bias on the part of the witness, thereby exposing to the jury

the facts from which jurors could appropriately draw inferences relating to the reliability

of the witnesses.’” State v. Black, 815 S.W.2d 166, 177 (Tenn. 1991) (quoting Delaware

v. Van Arsdall, 475 U.S. 673, 680 (1986)).

Tennessee Rule of Evidence 616 provides that “[a] party may offer

evidence by cross-examination, extrinsic evidence, or both, that a party is biased in favor

of or prejudiced against a party or another witness.”

In the instant case, the defendant sought to question the Metro officers who

responded to the scene on December 9 about the lawsuit he had filed against them in

federal court, arguing that such evidence was “clearly relevant to the officers’ bias under

Rule 616.” The trial court refused the request, stating as follows:

But I don’t see the connection between that federal lawsuit

and these officers’ bias with regard to this particular case. I

mean this case occurred before. I just don’t see that. So with

regard to that federal lawsuit, I don’t think any of it should

come in, in this case. It’s not relevant to this case.

- 16 -

Here, the trial court has committed a clear abuse of discretion. The trial

court was focused inaptly upon the officers’ actions that preceded the filing of the federal

lawsuit in determining that the actions could not have been influenced by the filing of the

federal lawsuit. The court should have focused upon the officers’ testimony and the

impact of bias on the witnesses’ credibility. “A witness may be cross-examined on any

matter relevant to any issue in the case, including credibility.” Tenn. R. Evid. 611(b).

That the Metro officers involved in the underlying case had been sued in federal court for

unlawfully arresting the defendant on December 9, 2014, was certainly relevant to show

their potential bias against the defendant. Indeed, at the pretrial hearing on this matter, an

attorney with the Metro Legal Department appeared to argue a motion on separate but

related grounds. As part of his argument, the Metro attorney noted that if the defendant

were to be found guilty of resisting arrest at his criminal trial, such a finding would

“eliminate [the] federal claim” of excessive force. Thus, the knowledge that a guilty

verdict in the defendant’s criminal trial could result in the dismissal of the federal action

filed against them is, quite simply, a textbook example of bias, and the trial court abused

its discretion in preventing the defendant from not only cross-examining the Metro

officers about the lawsuit but from disallowing any extrensic proof of the lawsuit, as

permitted by Rule 616.

Our inquiry does not end there, however. Because the defendant’s

constitutional right to confrontation was violated, see Black, 815 S.W.2d at 177, the

burden rested upon the State “‘to prove that the constitutional right violation [was]

harmless beyond a reasonable doubt,’” Sayles, 49 S.W.3d at 280 (quoting Momon v.

State, 18 S.W.3d 152, 167 (Tenn. 2000)). In making this determination,

“[t]he correct inquiry is whether, assuming that the damaging

potential of the cross-examination were fully realized, a

reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt. Whether such an error

is harmless in a particular case depends upon a host of

factors, all readily accessible to reviewing courts. These

factors include the importance of the witness’ testimony in

the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution’s case.”

Sayles, 49 S.W.3d at 280 (quoting Van Arsdall, 475 U.S. at 684).

- 17 -

Because the jury acquitted the defendant of resisting arrest, we apply these

factors only to the testimony of the officers as such testimony related to the defendant’s

conviction of reckless aggravated assault, such as it was. Both Officer McCormick and

Detective Polk testified that the defendant told them, following the issuance of Miranda

warnings, that he had been holding a handgun during his encounter with the victim but

that he had never pointed the gun at the victim. Because the victim testified that the

defendant had pointed a gun at her and because the defendant denied even having a gun

during his encounter with the victim, the testimony of Officer McCormick and Detective

Polk was particularly significant because it corroborated the victim’s testimony and

contradicted that of the defendant. Without question, the testimonies of Officer

McCormick and Detective Polk were important to the State’s case and were not

cumulative. The trial court did not permit any cross-examination on the issue of the

federal lawsuit, and the prosecution’s case – without the corroborating testimony of the

police officers – was frankly not particularly strong. This is a classic he-said-she-said

case, and, given the jury’s acquittal on the resisting arrest charge and conviction of the

lesser-included offense of reckless aggravated assault, the jury may have found the

defendant to be slightly more credible than the victim. Had the jury been apprised of the

pending federal civil rights lawsuit against the officers involved in the defendant’s arrest,

such information could certainly have caused the jurors to question the officers’

credibility. Thus, we cannot say that the trial court’s error in preventing cross-

examination and accompanying extrinsic proof of the lawsuit was harmless beyond a

reasonable doubt, and this alone constituted reversible error.

III. Impeachment of the Victim

Finally, the defendant argues that the trial court abused its discretion by

denying his request to question the victim regarding a dismissed shoplifting charge in

order to attack her character for truthfulness pursuant to Tennessee Rule of Evidence

608(b) and by denying his request pursuant to Rule 616 to question the victim about

alleged favorable treatment she had received from the prosecution.

Prior to the commencement of the trial, the court conducted a hearing

regarding the victim’s criminal charges. The victim testified that she had been issued

three citations on three separate dates in mid-to-late December of 2014: one for

possession of less than a gram of marijuana, one for shoplifting in the amount of $500 or

less, and one for possession of drug paraphernalia. With respect to the shoplifting

charge, the victim explained that, after she had been forced out of the defendant’s

residence, she was living out of her car and that she had made “the poor decision” to

shoplift some needed clothing. The victim admitted that all of the charges had been

dismissed earlier that same day but denied any knowledge that the dismissal was

occasioned by her testimony in the instant case against the defendant. At the conclusion

- 18 -

of her testimony, the prosecutor effectively conceded that “there is a basis under the fair

reading of the law” to permit impeachment of the victim regarding the shoplifting charge.

The defense argued that the dismissal of the three charges earlier that day, particularly the

theft charge to which the victim admitted her guilt, evinced the appearance of a “quid pro

quo,” which should be presented to the jury. The trial court then ruled as follows:

I mean [the victim] testified that there was nothing on the part

of the district attorney’s office that she’s aware of that

brought about the dismissal and it was no way related to this

particular case. And, in any event, these are incidents that

occurred after this, the charges here or the incidents alleged

here, and they’re really not relevant to what happened on

December the 8th and 9th of 2014. I just don’t see how they

can be a part of it. They’re not relevant. So they’re not going

to be allowed to come in.

Tennessee Rule of Evidence 608 provides, in pertinent part, as follows:

Specific instances of conduct of a witness for the purpose of

attacking or supporting the witness’s character for

truthfulness, other than convictions of crime as provided in

Rule 609, may not be proved by extrinsic evidence. They

may, however, if probative of truthfulness or untruthfulness

and under the following conditions, be inquired into on cross-

examination of the witness concerning the witness’s character

for truthfulness or untruthfulness or concerning the character

for truthfulness or untruthfulness of another witness as to

which the character witness being cross-examined has

testified. The conditions which must be satisfied before

allowing inquiry on cross-examination about such conduct

probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the

jury’s presence and must determine that the alleged conduct

has probative value and that a reasonable factual basis exists

for the inquiry;

(2) The conduct must have occurred no more than ten years

before commencement of the action or prosecution, . . . .; and

(3) ....

- 19 -

The giving of testimony, whether by an accused or by

any other witness, does not operate as a waiver of the

witness’s privilege against self-incrimination when examined

with respect to matters which relate only to character for

truthfulness.

Tenn. R. Evid. 608(b). This court has previously stated that a “prior instance of conduct

amounting to a theft would be admissible on the question of an individual’s credibility

under Tennessee Rule of Evidence 608(b) even if no conviction resulted from the

conduct.” State v. Mario C. Gray, No. M2006-00398-CCA-R3-CD, slip op. at 9 (Tenn.

Crim. App., Nashville, Dec. 17, 2007).

Here, again, the trial court abused its discretion by relating the

impeachment basis – theft – to the time of the offense rather than to the time of giving

testimony. The prosecution’s entire case hinged on the victim’s credibility. That she had

been cited for theft – a crime that strikes at the heart of truthfulness and credibility – was

certainly relevant and probative, and no issues existed about the timeliness of the

conduct. Under Rule 608, the defendant should have been permitted to cross-examine

the victim about the theft. Additionally, the defendant should not only have been

permitted to question the victim about the very recent dismissal of her theft and drug

charges to show the victim’s bias under Rule 616, he should have been permitted to

introduce extrinsic evidence of the dismissal of those charges, as permitted under the

rule. See Tenn. R. Evid. 616. This violation of the defendant’s constitutional right to

confrontation was not harmless beyond a reasonable doubt, given the paramount

importance of the victim’s testimony to the State’s otherwise anemic case. Accordingly,

this, too, constituted reversible error.

Conclusion

Based upon the foregoing analysis, the judgment of the trial court is

vacated, and the case is dismissed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

- 20 -