### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 9, 2000 Session

STATE OF TENNESSEE v. ROCKIE SM ITH
Direct Appeal from the Criminal Court for Shelby County

No. 96-12020 John P. Colton, Judge

No. W1999-00814-CCA-R3-CD - Filed October 23, 2000

The Defendant was convicted of assault by a Shelby County jury and sentenced to six months in the Shelby County workhouse with four m onths s usp end ed an d el even mon ths and twe nty- nin e days probation. The Defendant w as also sentence

d to two days i

n the Shelby Cou

nty Correctional Center for contempt of court. The two-day sentence was to be s erved consec utive to the six-month sentence. The issues the De fendant raises o n appeal are: (1 ) whether the tri al court erred i

n prohibiting the victim from testify ing that she did no

t think that the Def

endant should

go to jail; (2) whether the tria

l court erred in

admitting evidence regarding the Defendant’s use of an axe during the altercation; (3) whether the evidence presented at trial was sufficient to

support the conviction for assault; (4) whether the trial court erred by deny ing a continuance

of the trial that

was requested by defense counsel based upon the D efendant’s all eged incompete nce and the possib

ility that def

ense counsel could possibly

be called as a wi

t n ess; (5) whether the trial court erred by not providing special jury instruc

tions concerning

self-defense;

(6) whether the

trial c ourt erred in finding the Defendant

in contempt of court for addressing the jury after closing arguments; and (7) whether the sentence imposed

was excessive. Fi

nding no error,

we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed.

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.
Alan Bryant Chambers, Memphis, Tennessee, for the appellant, Rockie Smith.

Paul G. Summer s, Attorn ey General and R eporter, J. Ross Dy

er, Assistant Attor

ney General, Will iam L. Gibbons, District Attorney General, and Perry S. Hayes, Assistant District Attorney General for the appellee, State of Tennessee.

OPINION-2- I. Factual Backgr

ound

On Mother’s Day, 1996, the Defendant, R ockie Smith, asked h

is wife, Jacqueline Smith, for the title to her

jeep. The Defendant testified that he was distraught over being unable to buy his wife
a gift and wanted to pawn the jeep for money. Af

ter Jacqueline Smith (hereinafter “the victim”) refused to give him the title

, the Defendant p

icked up an axe and

swung it into a phon

e on the wall. The Defendant t hen proceede d to destro y dishes with t he axe. Wh ile still holding the ax e in one hand, the Defendant a

ttempted to grab

the victim with

the other hand. The Defendant grabbed the victim by the throat, telling her

“you don’t know who you are f___ing dealing with.” Fea ring for her safety , the v ictim knocked the Defendant’s hand out of the way, and the Defe ndant then hit the victim, striking her

on the lip. After hiding in a bathroom, the victim was eventually able to escape and run to a nearby drugstore to call the police.

Officer Robert Young responded to the 911 call from the vict im. While en route to the

Smith residence, he met the victim at the drugstore from which she had c alled. Young no ticed that the victim had marks on her neck

and a busted lip. Yo

ung then went to th

e Smith residence, which he testified was in disarray

. Young also foun

d th e axe that the victim said the D efendant used to damage the phone. When Young questioned the Defendant, he admitted that an assault had taken place. At that poin

t, the Defendant

was arrested fo

r assault.

Prior to trial, the Defendant submitted a motion in li mine requesting that the trial court exclude any evidence regardi ng the u se of an axe during the incident. The Defendant argued that the admiss ion of t his evidence woul d only serve

to inflame the jury

. The trial court d

enied this motion and allowed

evidence conce

rning the axe to be

included in the tria

l.

The State filed a motion in limine to exclude testimony from the victim regarding her

belief that the Defendant sh

ould not go to

jail. The State argued that the victim’s wishes were not relevant to the guilt or innocence of the Defendant as to the assault charge. The De fendant argued that he had the right to produce witnesses in his favor. The tri al cour t agreed with the State that the victim’s testimony wa

s not relevant to th

e issue of whethe

r or not the Defe

ndant had assaulte

d the victim.

Du ring the trial, Defenda

nt’s counsel, Alan Bryant Chambers, moved for a continuance ba sed
on two grounds. First, Chambers argued that, based upon his personal observations of the Defendant andthe testimony of the

Defendant’s mother-in-law, Annie Little, the Defendant was incompetent to stand tria l. During a jury-out hearing, Little testified that the Defendant was “schizophrenic” and needed pr of essional help. However, Little admitted that she was not a doctor and therefore not qualifiedto diagnose mental disorders. The Defendant also introduced a letter written by Dr. Kenneth Israel, who had treated the Defendant for ang er manageme

nt. The letter stated that the Defendant was progressing in therapy a nd that the frequency of treatments could be decrea sed.
Second, Chambers argue

d that the case sho

uld be continued be

cause he could po

ssi b ly be calledas a witness in the Defendant’s trial. According to Chambers, he was made aware on the morning of trial that the State planned to allege that he had instructed the victim to lie. Chambers1 In his bri ef, the Def

endant sta

tes that he request

ed special

jury instructi

ons on both self-d efense an d “no d uty to retreat. ” How ever, we will refer to the instructio ns simply as special jury instruction s on the law of self-defe nse.
-3- argued that if the victim were to testify that he had told her to lie, then Chambers would be required to take the witness stand to refute th e allegation, th

ereby req uiring Chambers

to withdraw as cou

nsel. After considering both grounds presented by the Defenda nt to supporthis motion for continuance, the trial court denied the motion.

At the close of trial, Chambers requested special jury instructions on self

-defense 1 basedon the victim’s act of

knocking the Defendant’s hand away. The trial court denied these instructions because the evidence did not indicate that the Defendant ever feared for his life a nd b ecause the evidence clearly indicated that the Defendant initiated the alter cation.
Following closing arg ume nts , th e Def end ant ask ed t hat he b e al low ed t o ad dres s th e ju ry. The trial court ruled that the Defendant could not do so. As the jury

exited the courtro

om to begin deliberations,

the Defendant rose from his chair and began yelling. He called to the jurors and said, “you don’t know the whol

e story” an

d “there were t

hings done here

that you hav

en’t heard abou

t. . . . I’m an innocent man.”As a result, the Defendant was held in contempt of court, with the trial court deferring the sentence for contempt until a later date.

The Defendant was f

ound guilty

of assault and sentenced to six months in the Shelby County Workhouse, with four

months suspended. In addition, the Defendant was placed on probation for elevenmonths and twenty -nine days a

nd fined fifty

dollars. The Defendant

was sentenced to two days in the Sh

elby County

Correctional Cen

ter for contempt o

f court.

The Defendant now appeals his convictions for assault and criminal contempt, arguing the following: (1) that the trial court erred in prohibiting the victim from testifying that

she did not want the Defendant to go to jail; (2) that the tria l court erred in admitting evidence regarding the Defendant’s us e of a n axe during the altercation; (3) that the evidence presented at trial was insufficient

to support the conv

iction for assault

; (4) that t

he tri al court erre d in not all owing a continuance based on Chambers ’ opinion that the De fendant was in

c ompetent to stand trial and Chambers’ belief that he mig ht be called as a

witness in the Defendant’s trial; (5) that the trial court erred by not providing special jury instructions concerning self-defense; (6) that the trial court erred in not all owi ng th e Def end ant to a ddr ess the jur y af ter closing arguments and in holding the Defendant

in contempt

for speaking to the ju

ry as they exited the courtro

om to begin delibe

rations; and (7) that the sentence imposed was excessive.

II. Analysis
A. Testimony by Vic

tim2 The purpose of a motion in limine is to det ermine issues, i

ncluding those of an evidenti ary nature, in advance of trial. See Tenn. R. Crim. P. 12(b).
-4- The Defendant first argues that the trial court erred in prohibiting the victim from testifying that the Defendant should not go to jail for the assault. We conclude that any evidence regar ding the victim’s opinion about the Defendant’s potential incarceration was not relevant to determining the guilt or inno cence of the Defendant. Thus, we affirm the trial court’s ruling that such evidenc e should have been excluded.

The threshold issue fo r allowing evidence to be admitted at trial is whether such evidence is relevant to the issues of the case. Relevant evidence is defined as “evidence having any tendency to mak e th e ex ist ence of an y f act that is of consequence to the determination of the action more probable or less probable t

han it would be witho

ut t he e vidence.” Tenn. R. Evid. 401. Relevant evidence is generally admissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if the dangers of unfair prejudice, confusion of the issues, or misleading the jury or considerations of undue delay

, waste of time, or

needless presentation of c umulative evidenc

e substantially outweigh the relevant evidence’s probative value. Tenn. R. Evid. 403.

The victim’s opinion as to a defendant’s punishment was not relevant

in the guilt phase

of this trial . It did not “make the existence of any fact that [was] of consequence to the determination of the actio n more pro

bable or l ess proba ble than it

would [hav

e] be[e n] withou t the evidence.” Tenn. R. Evid. 401. The victim’s proposedtestimony tha t she did not want the

Defendant to

go to jail simply wa

s not relevant to th

e issue of whethe

r or not the Defe

ndant had committe

d the crime of assault. Therefore, we affirm the ruling of the trial court prohibiting the victim from stating her desire that the De

fendant not go to

jail.

B. Exclusion of Evidence

In this case, the Defendant moved by motion in limine 2 to exclude all evide nce relating to

his

use of an axe during the altercation. The Defendant a rgues that the c

harge of assa

ult was based only
on his hitting the vict

im in the mouth and tha t the trial court therefore er red by admitting the evidence regarding hi

s use of an axe. How

ever, it is the opin

ion of this Court that

t he a ssault encompassed

the entire altercation. On the night in question, the Defendant became angry

with the victim over her refusal to provide him with the title to her jeep. The Defendant got

an axe, used the

axeto damag e the tele

phone, used the axe to damage the house, and while still holding the axe, grabbed the victim and threatened her. The victim testified that she feared for her life

at this point. After the threat, the Defendant hit the victim in the mouth, causing a busted lip. All of these actions together constituted the assault by the Defendant against the victim on May 12, 1998. T he Defendant ’s action s with the axe are relevant to what took place during the confrontation. The testimonyconcerning the

axe was relevant

to the crime, and t

he trial court did n

ot abuse its

discretion in allowing testimo

ny concer ning the axe. This i

ssue is without merit

. C. Sufficiency-5-

The Defendant further argues that the evidence presented at trial was insufficient to support

a conviction for

assault. When an accused challenges the sufficiency

of the evidence

, an appellate court’s standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the crime beyond
a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidenc e, circum stantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this Cou

rt should not re-we

igh or re-eva

luate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). No rmay this Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs , 995 S.W.2d 102, 105 ( Tenn. 1999). On the
con tra ry, this Court must afford the State of Tennessee the strongest legitimate viewof the evidence containedin the record, as well as all reasonable inferences which may be drawnfrom the evidence. St atev. Evans , 83 8 S. W.2 d 18 5, 1 91 ( Ten n. 1 992 ). Q ues tio ns c onc erni ng th e cre dib ili ty o f th e witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence

are resolved by the trier of fact. Liakas , 286 S.W.2d at 859. Bec a use a verdict of g uilt against a defen dant removes the presumption of innocence and raises a presumption of guilt, the convict e d criminal defendant bears the burden of showing that the evidence was le gally insuf

ficient to sustain a guilty verdict. Evans , 838 S.W.2d at 191.

When viewed in

the light most favorable to the State, the evidence presented in this case was sufficient for a rat ion al j ury to fi nd beyond a reasonable doubt that the Defendant was g uilty of assault. In addition to the testimony of th e victim, Officer Young saw the axe in question and observed the injuries to

the victim’s mouth and neck. In fact, the Defendant himself admitted that

an assault had taken place. Thus, we agree with the trial court that there was sufficient e vidence to convict the Defe

ndant of assault.

D. Continuance

The Defendant next arg ues that the trial court erre d in not granting

a continuance to determine his competency to stand trial and to settle the dilemma that his defense counsel might be

a potential witness in the trial. The decision to gran t or deny a mo

tion for continuan

ce rests within the sole discr etion of the tria l court. State v. Teel , 793 S.W.2d 236, 245 (T enn. 1990); State v. Baxter , 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973). This Court will only reverse the ruling of the trial judge on a motion f or continuance o

nly if the co

mplaining party

can clearly

show an abuse of discretion by the trial judge. Baxter , 503 S.W.2d at 230. I n order to show an abuse of discretion, the accused must provideclear proof that the denial of the continuance resulted in prejudice against the accused. Id.

When the accused is be

lieved to be incomp

etent to stand tria

l, the criminal,

circuit or general sessions court judge may, upon his or her own motion or upon petition by the district attorney-6-

general or defense counsel and

after a heari ng, order the defendant t o undergo a mental evaluation. Tenn. Code Ann. § 33-7-3 01(a)(1). Bef ore the mental exa

minati on is ordered, there must be evi dence sufficient to raise a question as to the accused’s mental capacity. State v. Wes t , 72 8 S.W.2d 32, 34 (Tenn. Crim. App. 1 986). The decisio n to grant an evaluation is within the power of the trial judge, and this Court will not reverse a denial of a mental evaluation absent a clear showing of abuse of discretion onthe part of the trial judge. State v. Rhoden , 739 S.W.2d 6, 16 (Ten n. Crim. App. 1987); State v. Lane , 689 S.W.2d 202, 204 (Tenn. Crim. App. 1984).

Th e evidenc e presented by the defense was not sufficient to raise a que stion as to the Defendant’s mental capacity. Mere speculation by the defense attorne

y after limi

ted interaction w

ith the accuse d, coupled with the lay opinion of

the Defendant’ s mother-in-law, does not constitute “evidencesufficient to raise a question as to [the accused’s] mental capacity at the time of the crime.” West , 728 S.W.2d at 34. The letter from Dr. Israel does not call

into question the mental competency

of the Defendant; it merely reports on the anger mana gemen t treat ment that the Defendant

received. I

n fact, Dr. I

srael recommen

ds in the lett

era reduction in fr

equency in treatment , which certainly does not indicate t

hat the Defenda

nt is incompetent to s

tand trial. Th e Defendant’s ar gument tha t he should have been granted a continuance based on his alleged incompetency

to stand trial is with

out merit.

The Defe ndant’ s argument that he should have been granted a continuance based on the possibility

that his attorney

could have been called as a witness is also without merit. The issue that Chambers would have testified about was not an integral part of the prose cution. Moreover, the Statehad expressedno interest in call ing Chambers as a

witness. Thus, we find no prejudice to the Defendant resulting from the trial court’s denial of a continuance.
E. Jury Instructions

The Defendant argues that the trial court erred in instructing the jur y. Spec ifically, he complains that

the trial court failed to present the jury with special jury instructions on self-defense

. Having thoroughly reviewed the recor d in this case, we conclude that the trial court did not err by refusing to instruct the jury as requested by the Defendant.
Every accused has a “constitutional right to a correct and complete charge of law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). The trial judge is obligated, without request, to give the jury proper instructions which are “fundamental in nature, [and] essential to a fair trial”. Id. at 249. The defendant does not have a right, though, to have

redundant or irr

elevant instructi

ons charged to the jury. Bryant , 654 S.W.2d at 390.

Instructions are meant to instr uct and aid

the jury, not

to confuse and dis

tort the issues.In the present

case, instructions regarding the law of self-defense were irrelevant to the issues at hand. No evidence was presented that wou ld indicate that the Defendant acted in self-defense. The Defendant

admitted to initiating the altercation, and he nev er presen ted evidence showing he3 The right of allocut

ion involves a defend ant’s right to be heard during se ntencing

. See Tenn. C ode An n. § 40-35-210(b)(6); Stephenson , 878 S.W .2d at 550 -52. Although similar to the right of allocution , the issue in this case involve s statemen ts made to the jury be fore the v erdict.
-7- possessed a reasonable belief of imminent and actual danger from Ms. Smith. Based onthe evidence presented at trial, the trial court properly denied the requested jury instructions on self-defense.
F. Defendant’s Right to Address the Jury and Contempt of Court
The Defendant argues that the trial court denied him his constitutional right to be heard by prohibiting him from addressing the jury after closing arguments were presented by both sides and the jury had been instructed by the court. The Tennessee Rules of Criminal Procedure provide that the number of arguments permitted to both the prosecution and the defense bey ond the opening and closing arguments is within the sound discretion of the trial judge. Tenn. R. Crim. P. 29.1. Our sup

reme court has r

uled that a defen

dant does not have

a constitutional, statutory, or common law right to make an unsworn statement to the jury

. See State v. Stephenson , 878 S.W.2d 530, 552 (Tenn. 1994). 3 Rule 29.1 of the Tennessee Rules of Criminal Procedure does not allow the Defendant to make a statement to the jury afte r both sides have presented their closing remarks to the jury and the jury has been instructed on the law. The trial court did not deny the Defendant the right to be heard in this case, a nd the trial court did not abuse its discretion pertaining to closing arguments.
Concerning the i

ssue of criminal c

ontempt, the trial j udge has the disc retion to punish criminal contempt of court by summary disposition if the judge c ertifies that the conduct constituting contempt was committed in the presence of the court. Tenn. R. Crim. P. 42(a). Criminal contempt is defined as

(1) [t]he willful misbehavior of any person in the presence of the court, or so near

thereto as to obstr

uct the administra

tion of justice[;] (2) [t]he willful misbe

havior of any

of the officers

of said court, in their official tr

ansactions[;] (3) [t]he willful disob

edience or resi

stance of any

officer of the s

aid court, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree,

or command of such

courts[;] (4) [a]buse of, or unlawful interference with, the process or proceedings of

the court[;] (5) [w]illfully conversing with jurors in relation to the merits of the cause in the tria

l of which they

are engage

d, or otherwise ta

mpering with them [;] (6) [a]ny other act or omission declared a contempt by law.
Tenn. Code Ann. § 29-9-102. The Supreme Court of Tennessee and this Court recognize that summary disposition threatens the right to due process, and for that reason, our supreme court has cautioned that summary disposition should only be used in exceptional circumstances. State v. Turner , 914 S.W.2d 951, 957 (Tenn. Crim. App. 1995). The determination of what action4 However, the sta tute spec ifies that t his is the maximum possibl e sentence “unless ot

herwise provi

ded by statute. ” Id. § 40-35-111(e)(1).
-8- constitutes contempt necessitating immediate summary disposition rests within the discretion of the trial judge. Id

. In this case, the Defendant continued to address the jury even after the trial court denied his request to do so.

Not only was t

he timing of the De

fendant’s outbur

st inappropriate

, but his explicit disrespec

t for the ruling o

f the trial court j ustified the conte mpt of court char

ge. Because the contemptuous behavior took place before the judge, it was within the trial judge’s discretion to declare the Defendant summarily in criminal contempt of court. We agr ee with the trial court’s ruling that the Defendant’s behavior in addressing the jury after an explicit denial by the trial court of his request to do so constituted willful misbehavior by the Defendant in the presence of the

court. Accordin

gly, we af firm the convictio

n for criminal con

tempt.
G. Sentencing

Fin all y, the Defendant argues that the sentenceimposed by the trial court was excessive. The Defendant

was convicted of assault, wh ich is a Class A misdemea nor. The maximum possi ble penalty for a Class A misde meanor is eleven months and twenty-nine day s incarceration. Tenn. Code Ann. § 40-35-111(e)(1). 4

In misdemean or sentenci ng, a separat e sentencin g hearing i s not man dat ory, but th e trial court is required to allow

the parties a re

asonable opportu

nity to be heard on the question of the length of the sentence and the manner in which it is to be served. Id. § 40-30-302(a). The sentence must be specific and consistent with

the purposes and principles of the Criminal Sentencing Reform Act of 1989. Id. § 40-35-302(b). A p ercenta ge of not greater than seventy-f ive percent of the sentence should be fixed for

service, after

which the defend

ant becomes elig

iblefor “work release, furlough, trusty status and related rehabilitative programs.” Id. § 40-35-302(d).

The midemeanant, unlike the felon, is not entitled to the presum ption of a mi nimum sentence. Statev. Cre asy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in determining the percentage of the sentence t o be served in ac

tual confinement

, the court must

consider enhancement andmitigating fac

tors as well

as the purposes and principles of the Criminal Sentencing Reform Act of 1989, andthe court should not impose such percentages arbitrarily. Tenn. Code Ann. § 40-35- 302(d).

In this case, the trial court considered the presentence repor t and te stimony offered by the Defe ndant. The trial court c onsidered that the

Defendant had a

prior history

of crimes i

nvolvin g violence and that the Defendant had been given probation on an earlier conviction. We conclude that the Defendant’s sentence for the assault conviction was not excessive and was consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. Likewise, we conclude that a sentence of two days confinement for the criminal contempt conviction was a ppropriate.-9-

Accordingly, the judgment of the trial court is AFFIRMED.

_________________________________ ROBERT W. WEDEMEYER, JUDGE