### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 16
, 200 5

ST A TE OF TE N N ES SE E v

. ALBERT JAMES SAAVEDRA

Direc t Appeal from the Circ uit Court for Humphreys County

No. 10385 Robert

E. Bu rch, Judge

No. M2004- 02889-CCA -R3-C D - F iled March 13, 2006

The De fenda nt, Albert James Saavedra , was indicted on one count of first deg ree murder a nd one count of a tt e mp te d f

ir s t d e g r e e mu r d e r

. H e w a s c o n v ic te d f o r th e le s s e r

- in c lu d e d o f f e n s e of voluntary manslaug hter a nd for the indicted offe nse of attempted first deg ree murder. T he trial c ourt reduc ed the c onviction for attempted f irst deg ree murder to attempted second deg ree murder, f inding that the evidence was insufficient to prove that the Defenda nt acte d with preme ditation. The trial
court a lso sentence d the Def endant to an e ffe ctive sente nce of fourtee n y ear s in the Depa rtment of Cor re c tio n. Th e De fe nd a nt ap pe a ls, c on te nd ing that: (1 ) the e vid e nc e is ins uf fi c ie nt to s us ta in h is conviction for attempted second de g ree murder; ( 2) the trial c ourt err ed by not instruc ting the jury

on ag g ravated assault as a lesser- included offense of attempted first de g ree murder; ( 3) the trial c ourt

e rr e d w he n it

too k h is m oti on fo r j ud g me nt o f a c qu itt a l un de r a dv ise me nt a ndwh e n it de nie d th is motion with respect to attempted se cond degr ee mur der; a nd (4) the tr ial court e rre d when it denied his Rule 33(f) motion. Finding that there exis ts no reve rsible er ror, we aff

irm the judg ments of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

R OB E R T W. W EDEMEYER , J ., delivere d th e opinion of the court, in which J OS EP H M. T I PTON and T H O M A S T. W O O D A LL , J J ., joined.

W i l l i a m B

. “ J a k e ” L o c k e r t , II I ( a tt r i a l a n d o n ap p e a l ) a n d H a yl e e B r a d l e y ( a t t r i a l )
, A s h l a n d C i t y, Tenne ssee, f

or the a ppellant, Albert Saavedr a.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B e nja min A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; Dan Mitchum Alsobrooks, District Attorne y Gene ral; and Lisa C. Doneg an, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

This case arises from the death of Danny DeB erry and the stabbing of his wife, A manda JoyW e n ot e t hat
, i n t he r ecor d, M r s

. D eB er r y r ef er s t o t hi s es t abl i s hment as “ Si det r ack bar

. ” O t her wi t nes s es 1

re fer to the b a r a s “T h e S id e tra c k .” F o r c o n siste n c y, w e w ill a lw a ys re fer to this b a r a s “T h e S id e tra c k .”

-2- DeB erry , which occurre d during the ea rly morning hours of Nove mber 15, 2002. At the D efe ndant’s trial, the following evidenc e wa s prese nted:

On November 14, 2002, Rebec ca Dy al was working from 3:00 p.m. until approx imately 1:30 a.m. at Montana ’s Saloon, a bar that serve s beer only and is located in New J ohnsonville. Betwe en 9:00 p.m. and 10:00 p.m., she saw a ma n that she did not rec og nize, but later id en t i fi ed as the Def endant
, come into t he bar alone, a nd she noted that he was “ [a] rathe r larg e g uy ” who wor e a “dar ker f lannel” shirt, jea ns, and a ba seball ca p, and had a

g ap between his front tee th. Dy al re called that the Def

endant be g an drinking Mike’s Har d L emonade
, and he pla y ed pool the majority of the time that he was the re, w hich s h e n o t iced be cause he play ed “one -hande d.” Dy al re called tha t, at some point, the Defe ndant left the ba r, but he re turned approxi mately fiftee n minutes befor e the bar closed, a nd she ser ved him a drink. L ater , Mr. and Mrs. DeB erry came into the bar a nd they wer e talking to the D efe ndant. Dy al said that, mostly
, the Def endant a nd Mr. DeB erry

wer e talking and they seeme d “[l] ike they

had known e ach othe r and they wer e friendly ,” but Mrs. De Be rry eng ag ed in the conver sation only

“[a] li ttle bit . . . .” Dy al testified that, at some point, she he ard a n arg ument betwee n Mr. and Mrs. D eB erry and told them that they wer e g oing to ha ve to stop arg uing or leave the bar , and the De fenda nt told her that they wer e o k ay and were g oing to wor k things out. The Def endant a nd the DeB erry s were the l ast patrons to lea ve the ba r, and, a fter the y

left, Dy al saw the m standing and talking in the parking lot near two ve hicles. She saw a compact, t eal gr een or sea f oam g ree n car simil ar to a

Geo with two bodies in it and a white box y vehicle, similar to a V olvo, but she could not see if the re w as any one in the white c ar. When D y al left the ba r betwe en 1:40 a.m. and 1:50 a.m., the two ca

rs wer e g one.

Dy al identified the Defe ndant i n court and said he looked diff ere nt in court than on the nig ht of Nove mber 14, 2002, be cause it looked like he had lost a lot of weig ht a nd both his hair and fa cial hair we re diff

ere nt. When she was conta cted by police to vi ew a

photogr aphic lineup, she was unable to identify

the Def endant’ s picture in the lineup, but she a g ree d that, despite this, she had no doubt that the Def

endant wa s the man that she sa w at the ba r that eve ning w ith the DeB erry s.

On cr oss-examination, Dy al re called tha t the Def endant and the DeBe rry s all appea red to be intox icated, and s he heard Mr. DeB erry ask the De fenda nt if he wa nted to g o drinking , and ther e wa s some discussion about g oing to J ackson. Dy al agr eed tha t she saw no indica tion that the Defe ndant was fig hting or arg uing with Mr. DeBe rry

. She testified t hat, when the DeBe rry s wer e ar g uing, the Def endant told her

nicely that the DeB erry s were marrie d, t h at t h e t hree had just come fr om The Sidetrack, another

bar a cross the stre et, and that they could take c are of t hings on their own. Dy al 1 said that she did not know what the D eB erry s were arg uing a bout, and the conf

rontation betwe en the two was not phy sical.

De nn is B ro wn re c a lle d th a t, o n N ov e mbe r 14 , 200 2, he wa s a t T he Sid e tr a c k w ith his
g ir lf ri e nd , Pa m B oa

rd , w he re he kn e w al mos t eve ry on e that c a me int o th e ba r. He re me mbe re d th a t,-3-

during that evening , he wa s sitti ng at the bar when he saw the D efe ndant come into the ba r alone

. Br own noticed the D ef

en d an t b ec ause he was “ a pre tty big g uy ,” we ighing “at lea st” 240 or 250 pounds. Br own re called tha t the Def endant wa s wea

ring a lig ht c olored shirt, e ither blue or white, a base ball cap, je ans and w ork boots. When the Def endant came into the bar, the Defenda nt ordere d drinks for e very

body in the bar, but Br own di d not rea liz e thi s until the bartender g ave him a be er and said that it was f

rom “Will,” pointi ng to the Def endant.

B ro wn re c a lle d th a t, a

lit tle la te r, the De B e rry s, wh om he kn e w, c a me int o the ba r, a ndMr s. De B e rry wa s sitti ng a t the e nd of

the ba r p la y ing a

vid e o g a me wh ile Mr . D e B e rry wa s p la y ing po ol. Br own saw the Def

endant lean across a barstool to talk to Mrs. DeB erry , and it appea red to him that the Def endant was flirting with Mr s. DeB erry

. Br own said that Mrs. DeB erry acknow l ed ged the Def endant but kept playing he r g ame. At one point, Brown pla y ed pool with the Defen d an t , who shot one-hande d and wa s very g ood at pool. The De fenda nt told him that he wa s either f rom Ba ng or, Maine, or ha d just lef

t w ork there
, and he was in Ne w J ohnsonville looking for work. The Def

endant

c on ti nu ed to b uy

dr ink s f or e ve ry on e a ndwa s st ill a t th e ba r w he n B ro wn le ft

aro un d 1 2:3 0 a .m. B ro wn a g re e d th a t he la te r le arn e d that the De B e rry s ha d be e n s ta bb e d, a ndthe po lic e a sk e d h im t o view a photog raphic lineup, during which he pic ked out the De fenda nt’s picture f rom two lineups as being the man he sa w at The Sidetrack tha t evening . On cr oss-examination, Brown te stified that he had know n Mr. DeB erry all his life, and he kne w Mr. DeB erry ’s temper ament. B rown a dmitted that he told a TBI ag ent that the Def endant was “handsy ” with Mrs. DeB erry , and, had Mr . DeB erry seen thi s , h e wo u l d have c onfronted the Def endant a bout that reg ardle ss of the De fenda nt’s siz e. Br own ag ree d that he did not know t hat M r. DeBe rry was manic depre ssive or that he w as not taking medication on the nig ht of this incident.

Pa me la C. B oa rdte sti fi e d th a t sh e we nt t o T he Sid e tr a c k o n No vem ber 14, 2 00 2, wi th Br own, and she n o t iced the D efe ndant come into the ba r that eve ning be cause she had ne ver se en him before . Boa

rd said that the De fenda nt, who introduced himself as “Will,” came into the bar , set a $100 bill on the bar, a nd told the bartende r that he w anted to buy th e ro u nds until i t was g one. B oa rd re c a l l e d t h a t t h e D e f e n d a n t w a s w e ar i n g a b a s e b a l l c ap , a w h i t e p l a i d s h i r t , a n d b l u e je a ns

. B oa rd te sti fi e d tha t Mr. a nd Mr s. De B e rry we re a lso a t the ba r tha t eve nin g , but she didno t r e c a ll wh e the r the y

arrive d b e fo re or a ft e r the De fe nd a nt. B oa rdno tic e d th e De fe nd a nt p la y po ol b e c a us e he only used one ha nd while play ing, a nd she had ne ver se en that b ef o re

. S h e al so noticed the Def endant talking to Mrs. DeB erry but did not find that unusual. Boa rd recalled that she identified the Def endant’ s picture f

rom two diffe rent photog raphic lineups. On cross-examination, Board

a g re e d th a t th e De fe nd a nt w a s b e ing frie nd ly wi th e ve ry on e . B oa

rddidno t se e Mr . a nd Mr s. DeB erry arg uing, a nd she did not see them e mbrac ing or hug g ing e ither.

Mrs. DeB erry

testified that, in November 2002, beca

use she a nd Mr. DeB erry

wer e having fi na nc ia l di ff

ic ulties
, th ey ha d r e c e ntl y mov e d f ro m Jac ks on , T e nn e sse e , w ith the ir tw o y ou ng e st daug hters into a house that they rec ently inherited in N ew J ohnsonville, Te nnessee

. Mrs. DeB erry testified t hat s he and Mr. DeBe rry had been m arried for twenty -five y ear s, and, while they loved ea ch oth e r v e ry muc h, the y

ha d dif fi c ult ie s “ lik e a ll m arrie d c ou ple s. ” Mr . D e B e rry ha d a pr ob le m w ith alcohol, for

which he ha d rec eived tre atment a c o u p le of times. Mrs. De Be rry beca me depe ndantB eca us e bot h v i ct i ms a nd t hei r daug ht er s al l ha ve t he s ame l as t na me, we wi l l r ef er t o t he t wo vi ct i ms a s 2

M r

. an d M r s

. D eB er r y an d t o t he daugh t er s by t hei r f i r s t na mes, Jen na and D ani el l e.

-4- on a pain medic ation, Hy drocodone
, and she wa s terminated f rom her job whe n she ente red tre atment fo r h e r a dd ic tio n. Mr s. De B e rry sa id that the str e ss o f h e r l os ing he r j ob , th e fi na nc ia l di ff ic ult ie s, and her addiction took its tol l on Mr. DeB erry , and he w as diag nosed as manic depre ssive in 2001. When Mr. DeB erry

was “ manic” he would talk long distance on the phone for long periods of time,

s pend money

on things that “ didn’t make a ny sense,” and lea ve the house and not come home for a whole day , which wa s unusual. Mrs. DeBer ry rec alled that Mr. De Be rry did not like the

me dic a tio n th a t he too k f or thi s a ilm e nt b e c a us e it m a de him sle e py , f e e l si c k, a ndg a in w e ig ht.

The week b ef

o re November

14, 2002, Mr. DeB erry left the De Be rry s’ home in New John so nv ill e , a ndMr s. De B e rry didno t kn ow wh e re he wa s u nti l sh e la te r l e arned that he wa s in J ackson. She sa id that during or shortly afte r this he was a

rre sted for stea ling their

neig hbor’s c ar. Mr s. De B e rry

bo rr ow e d mo ne y

to p a y Mr . D e B e rry ’s bo nd , a ndhe c a me ho me with h e r, bu t th is situation caused some f

riction betwe en them. Mrs. DeB erry said that in the next few day s she and Mr . D e B e rry c a sh e d in a 401( k) a nd re c e ive d $6, 40 0, wh ic h he lpe d the ir fi na nc ia l si tuatio n. She sa id that things see med to have tur ned ar ound, and they boug ht a used Vol v o i n p ar t b eca use Mr. DeB erry ’s truck ha d been stolen.

On No ve mbe r 1 4, 20 02
, Mr. and Mrs. De B e rry we nt o ut t o d inn e r w ith tw o o f the ir 2 daug hte rs to c e le br a te the m g e tti ng a ne w c ar, Mr . D e B e rry ’s ob tain ing a ne w j ob , a ndthe fa mil y being toge ther. Mrs. De Be rry said that eve ry one wa s in a g ood mood at dinner, and the y left dinner around 8:30 p.m. When they returne d home, Mr. and Mr s. DeB erry beg an talking about wher e Mr. DeB erry had bee n while in J ackson and what he had been doi ng

. Mr. DeBe rry mentioned a woma n that Mrs. DeB erry

knew o f b u t had pre viouslythought that Mr. D eB erry only met when he was try ing to f ind out who stole his truck. Fr om what Mr. DeB erry told her, Mrs. De Be rry

assumed that Mr

. De B e rry ha d me t thi s wo ma n be fo re his truc k wa s sto le n a nd that the tw o had a roma nti c

re la tio ns hip . M rs . D e B e rry sa id tha t sh e g ot ups e t and c ri e d, a nd the c ou ple a rg ue d. She wa nte d to get aw ayfr o m t h e h o u s e b ec au s e s h e wa s an gry , an d
, af t erv i s i t i n g s o m e r el at i v es , s h e d ec i d ed t o go see he r brother

who she thoug ht was at The Sidetrack. She w ent hom e, cha ng ed clothes, g ot Mr. DeB erry , and went to The S idetrac k. Mrs. DeB erry said that she told her daug hters that she a nd Mr. DeB erry wer e g oing to talk be cause she did not want them to know that they wer e g oing to a

bar.

When Mrs. DeB erry

arrived at The Sidetrack, she took a sea t at the bar and saw the Def endant who w as sitting towar ds the end of the bar. The Def endant moved dow n a seat so that Mrs. DeB erry

could sit ne x t to Mr. DeB erry

. Shortlyafte r they sat down, Mrs. De Be rry

hear d Mr. DeB erry comment on what the Def endant wa s drinking, w hich was Mike’ s Hard L emonade , say ing “that’s pretty g ood stuff isn’t it? ”, and the Def endant responde d “y es.” Mrs. DeB erry said that she
was pre tty

quiet while at the ba

r, but she talked to some pe ople that she kne w.

Mrs. DeB erry

rec alled that Mr. De Be rry play ed pool, a nd she noticed the Def endant playing pool using only

one hand. Mr s. DeB erry

rec alled that she talked to the Defenda nt, whom she knew-5-

as “Will,” when he came to sit nex t to her at the ba r. S he said that they

discussed their f

amilies, and the Def endant a sked if she could g uess his ag e and show ed her his driver’s lice nse, which she

rec alled listed him as being b o rn i n 1970. The De fenda nt told her that he wa s here from Maine working for “ TVA,” and his work involved the e nviro n m ent. Mrs. De Be rry said that she told the Def endant that she was mar

ried to Mr. DeB erry , and the Def endant responde d, “I like him.” When sh e a sk e d the De fe nd a nt wh a t he me a nt, the De fe nd a nt expl a ine d “h e ’s jus t kindof la id b a c k, jus t his de me a no r. ” Th e De fe nd a nt t oldhe r tha t he lik e d h e r e y e s a ndthat sh e loo ke d li ke sh e ha d a ha lo

ov e r he r he a d. She sa id that sh e wa s fl a tte re d, bu t sh e tho ug ht that it wa s st ra ng e that he sa id tho se thi ng s w he n s he wa s si tti ng a t a ba r w ith a be e r an d a c ig are tte . M rs . D e B e rry sa id tha t, at on e po int
, she was turned on her stool looking at her husband, and the Def endant put his ha nd on her le g and
turne d h e r s too l so that sh e wa s f a c ing him

. Th ro ug ho ut the e ve nin g , Mr s. De B e rry didno t ta lk t o Mr. DeB erry

“a w hole lot” bec ause she was still upset with him

.

Mr s. De B e rry

re c a lle d that the y did no t le a ve the ba r un til it c los e d a t aro un d 1:0 0 a .m. Mr s. De B e rry re c a lle d th a t, w he n th e ba r c los e d, sh e a ndMr . D e B e rry wa lke d o ut, a nd sh e we nt to g e t in the ca r. When she looked, Mr. DeB erry was g oing a cross the stre et towar ds Montana’s, a nother ba r, and she c alled to him “Let ’s go h o m e. ” He responde d that he wa nted to g o to Montana’s to see about play ing some more pool. Mrs. De Be rry d ro v e over to Montana’s, a nd Mr. DeB erry had

a lr e a dy g on e ins ide , a ndsh e c ou ld s e e him g oin g int o th e ba thr oo m. S he sa id tha t she wa ite d f or him to come out, and she l oudly told him “let’s go, let’ s g o home.” Mrs. D eB erry ag ree d that she wa s ang ry and upset, and the barte nder told them that they neede d to le ave beca use it wa s time to close. As she and Mr. De Be rry

wer e lea ving, she saw the D efe ndant sitting at the ba r, and Mr . DeB erry made a comment about how Mrs. DeB erry was upset with him. She ag ree d that Mr. DeB erry was joking a nd making light of the s ituation beca use i t was not serious. Mrs. DeBe rry said that she lef

t the bar and g ot into her ca

r, and Mr . DeB er ry s t o p p ed and ta lked to the Def endant. Mr. D eB erry started to g et into t he passe ng er’ s side of her car when the D efe ndant ca me to her driver’s side window and a sked if he c ould drive Mr. De Be rry home so that they

could have a “ma n-to-man talk.” Mrs. DeB erry

assumed that the De fenda nt wanted to “he lp with our m ar i t al s i tuation, at the time, just, y ou know, us being [i n an] arg ument.” Mrs. DeB err y looked at Mr. DeB erry who indicated that it wo uldbe “ ok a y ,” a ndsh e tol d th e De fe nd a nt tha t sh e wo uldfo llo w h is c ar b e c a us e sh e wa s a fr a id that Mr. DeB erry

would g o somewher e else to drink.

Mrs. DeB erry said that Mr. De Be rry expressed no conc ern a

bout ge tting into the Def

endant’ s

car , which wa s a small “kind of [] blueish-g ree n turquoise color.” She sai d t h at M r. De Be rry

“ be frie nd e d e ve ry

bo dy

. . . . Ev e ry

bo dy lik e d h im. ” F urthe r, it w a s n ot a bn or ma l for so meo ne to come ba ck to the house with them to talk. Mrs. DeB err y testified that she followe d the Def endant’ s

c ar , b u t s h e w a s a li tt le w a y s b e h in d th e m b e c a u s e s h e w a n te d to d r iv e s lo w ly s in c e she ha d consumed thre e bee rs. She estimated that she a rrived home betwee n 1:30 a.m. and 1:40 a.m., a nd, when she arri v ed at he r house, Mr. D eB erry and the De fenda nt were standing by the side of the ho us e ne ar the De fe nd a nt’ s c ar, wh ic h w a s pa rk e d a t a n a ng le a t the sid e of the dr ive wa y a nda lit tle on the g rass. Mrs. DeB erry thought that it was stra ng e that the De fenda nt did not jus t pull st raig ht into the drivewa y

but parke d at an a ng le. She sat i n her car and cried a little bit because she and Mr

. DeB erry had not had a

chanc e to t alk, which was something t hat was important to her. After she wa s-6-

there for “

just a minute,” Mr. De Be rry came over t o the ca

r, opene d her door , and said “ come on, baby , let’s g o in,” and he car ried he r over

to the door that led inside their g ara g e.

Af te r M r. De B e rry

c arrie d h e r t o th e sid e do or , sh e wen t in to the ho us e , a ndhe wa s st ill
sta nd ing a t th e do or

ne ar the De fe nd a nt. She c he c ke d o n th e g ir ls, wh o w e re sle e pin g in the sa me room and then w ent back to the be droom that she shar ed with Mr. De Be rry . She said that she muted the te levi si on , put h e r p ur se a wa y , a ndla y do wn on the be d. She re me mbe re d th a t sh e wa s st ill clothed and w as cry ing a s she drifted off to sle ep. The next thing that she re membere d was be ing awoke n by

Mr. DeB erry

scre aming fo r h er sa y ing, “ [H] elp me, Jo, help me.” She said that Mr. De Be rr y s o u n d ed v er y d i s t re s s ed
, an d s h e k n ew t h at s o m et h i n g wa s wr o n g. S h e w en tt o t h e “ gar age room,” a nd, when she opened the door, she sa w Mr. De Be rry and the Def endant strugg ling over a
spear g un that Mr. DeBe rry used t o fish. Mrs. DeB erry rec alled that there wa s a lot of blood in front of the door, and s h e s aw s o m e blood on Mr. DeB erry ’s nec k and fa ce. She w ent straig ht to Mr. DeB erry , and the De fenda nt and stepped in between the m. She took the spear g un, and Mr. De Be rry fell back. Mrs. DeB erry described the De fenda nt, stating, “ He just had this wild look on his face, in his ey es, just . . . like . . . something wild.”

Mrs. DeB erry

testified that she co u l d not understand what could have ha ppened, a nd she

rec alled asking the Def

endant “ why

did y ou do this? I

mean, what happene d?

. . . I thought y ou wer e

our friend.” She reme mbere d the Def endant jabbing or lunging at her, but she did not reme mber e ver seeing the knife. She tried to rea son with the Defe ndant and sc rea med at him to leave, mindful of the fa c t th a t sh e ha d h e r t wo te e na g e daug hte rs in the ho us e . O ne of he r d a ug hte rs , D a nie lle , c a me to the door during this ti me, and the D efe ndant t old Danielle to g et back in the house and c lose the door. Mrs. De Be rry

told Danielle to ca ll 9-1-1. Afte r Da niel l e we n t back into the house , the Def endant turne d and starte d turning the doorknob, a nd then he lef t. Mrs. DeB erry then went to her hu sb a nda nda tte mpt e d to ta lk t o h im, te lli ng him that sh e lov e d him
, a nd the n trie d to a tte ndto s ome of his wounds, which she notice d wer e seve re. She said that Mr. De Be rry ’s bre ath was sha llow and labore d. During this, Mrs. DeB erry ’s daug hter, Jenna, ca me to the door, a nd Mrs. DeB erry told her not to come out there . She hear d, and answ ere d, questions that Danielle wa s relaying to he r fr om the 9-1-1 ope rator.

Mr s. De B e rry

sa id tha t the EM Ts arrive d a nda tte nd e d to he r h us ba nd . Sh e sa id tha t sh e did
not rea liz e that she w as hurt until she was standing over the patrol car holding her side and re alized that she had two stab wounds to he r side and a cut acr oss he r throat. She noticed la ter that, whe n the Def endant c ut her throa t, he also cut some of her ha ir nea

r her neck.

Mrs. DeB erry

acknow ledg ed that her

medical r ecor ds sho w e d

th at, at one point while she wa s in the hospital, she said that she fe lt “g uilty ” conc erning her husba nd’s dea th. She explained that she fe lt g uil ty be c a us e it wa s her ide a to g o out tha t nig ht. She sa id tha t sh e ha d g on e ov e r s o ma ny “ if s” in h e r m in d, such a s if

sh e tol d M r. De B e rry

that he c ou ld n ot g o w ith the De fe nd a nt a ndha d to

c ome ho me wi th h e r. F urthe r, sh e a g re e d th a t sh e fe lt g uil ty be c a us e the la st t ime that sh e sp ok e wi th her husba nd she wa s ang ry with him. Mrs. DeBe rry

ag ree d that the Def

endant c aused both he r and her husba nd’s injuries.-7-

On cr oss-examination, Mrs. DeB erry said that, when she g ot $6,400 from her 401( k), she a nd Mr. DeB erry

opened both a saving s acc ount a nd a che cking acc ount at First B ank, and the y deposited $3,000 into each a ccount. M rs

. De Be rry was a war e that Mr. De Be rry had anothe r ac count at that bank that was overdra wn, but she di d not know how much money was owe d on that acc ount. She said that they

did not deposit any

money into Mr. DeB erry ’s ac count that day

.

Mrs. DeB erry did not rec all making sever al statements to police, many of which she made shortly afte r she wa s stabbed, while she was sti ll in the hos pital and sedated. S he did not reme mber
te lli ng Of fi c e r Ed wa

rd s tha t, wh e n she we nt int o the g ara g e ro om, sh e sa w the De fe nd a nt w ith bo th the kn if e a ndthe sp e ar g un . M rs . D e B e rry te sti fi e d th a t sh e didno t r e c a ll t e lli ng Of fi c e r C ra ig that, wh e n s he we nt t o th e g ara g e , s he sa w h e r hu sb a ndble e din g aro un d th e c he st a ndup pe r b od y . M rs

. DeB erry also said that she did not rec all telling Of fice r Craig that one of he r daug hters wa lked out and saw her g etting attacked by the Def endant. She sa id that she did not rec all telling the E MT who attended to he r that the De fenda nt and Mr. De Be rry g ot into a fig ht at the bar but that they

made up, and the De fenda nt bought Mr. D eB erry a beer. Simi larly
, Mrs. DeB erry did not remember telling the EMT t hat t he Defenda nt told Danielle to g o back inside “ unless she wa nted some.” She did not deny that she made any

of these sta tements but said that she did not remembe r making them.

Mr s. De B e rry

c on fi rm e d th a t sh e a ssu me d th a t Mr . D e B e rry was ha vin g a n in app ro pr ia te rela tionship wit h a woman f rom J ackson, Sheila J ones. S he re viewed A g ent Der rick Jones’s notes from her interview w ith him and ag ree d the notes indicated that she told Ag ent J ones that she had fo un d o ut tha t Mr . D e B e rry wa s “ sle e pin g ” wi th S he ila Jone s, bu t sh e di d no t r e c a ll m a kin g thi s statement. She re membere d telling Ag ent J ones that her arg ument with M r. De Berry was a bout She ila Jone s, bu t sh e didno t r e c a ll s a y ing that Mr . D e B e rry tol d he r tha t he wa s hav ing a n af fa ir wi th J ones. She also did not reme mber telli ng Ag ent J ones t hat t he Defenda nt kissed her on the c heek. Mrs. DeB erry

ag ree d that, if Mr. De Be rry had see n the Def

endant f lirting with Mrs. DeB erry , kissing he r on the c h e e k

o r t o u c h i n g h e r , h e w o u l d h a v e r e a c t e d r e g ar d l e s s o f t h e D e f e n d a n t ’ s s i z e

. M rs

. De B e rry a g re e d th a t th e De fe nd a nt wa s nic e to he r at the ba r an d tha t he wa s g e tti ng a lon g we ll w ith

every one.

Mrs. DeB erry

rec alled that she reported M r. DeBe rry missing t he week before N ovember 14, 2002, beca

use he had bee n g one for

three day s. She ag ree d that, while he wa s “missing,” his truck had bee n stolen, and Mr. De Be rry thought that a

co u p l e o f guy s, whom he had me t in a bar, ha d taken his truck be cause he had sold them scuba tanks that he fa lsely

said had metha nol in them.

Mrs. DeB erry

did not reca ll how long it wa s betwee n the time that she lay down in her be d

a ndwh e n s he he ardMr . D e B e rry c a lli ng fo r h e r t o h e lp h im. She did no t re c a ll e xac tly wh a t ti me they returne d from the ba

r and a cknowledg ed that, while s he may have told Ag ent J ones t hat i t was 2:00 a.m., it was, more likely , closer to 1:30 a.m. Mrs. DeB erry rec alled that Ag ent J ones re quested the knife bloc ks from her home, and she rec alled that ther e we re two e m p t y s p ace s, one on ea ch kn if e blo c k. She e xpla ine d th a t Mr . D e B e rry of te n u se d h e r kn ive s in his ta c kle bo x o r to c le a n f ish and that they

went missing quite f

reque ntly . Further, she sa id that she may have told Ag ent J ones that the knives may

have be en lost in the move from Jackson. M rs

. De Be rry did not remember-8-

telling Ag ent J ones that the De fenda nt was “poking ” at Mr. D eB erry with the spear

g un.

Mrs. DeB erry

testified that she and Mr. DeB erry had instance s of domestic violence in the
pa st, e xpla ini ng th at “[ v] iol e nc e is a ha rs h w or d. ” She sa id the y ha d a rg ume nts wh e re sh e wo uld slap him or scra tch him and sometimes leave a mar k and agr eed that she was usually the ag g ressor

a ndthat Mr . D e B e rry

ne ve r hit he r. She didno t r e c a ll, bu t a g re e d s he ma y ha ve sa id t o A g e nt Jon e s, that Mr. De Be rry

had g otten more phy sical with her in the la st y ear . She said that she and Mr

. DeB erry would fig ht more whe n he wa s in his manic p h as e, wh i ch would occur when he was not takin g his me dic a tio n. Mr s. De B e rry a dmi tte d tha t she ha d wr itt e n sev e ral bad c he c ks wi thi n th e la st y ear befor e testify ing a nd explained on redire ct examination that she had ha d financ ial difficulties since he r husband’ s death, a nd she neve r wrote a che ck kno wi n g t h at t h ere was not g oing to be
enoug h money in her ba nk; rather , she just kept poor re cords. She sa id that her writing bad c hecks had no af fec t on her testimony

in court, and she wa s sure that the D efe ndant was the man who stabbed he r and he r husband.

On re direc t examination, M rs. De Be rr y said that she wa s hospitaliz ed whe n she g ave statements to police officer s and TB I ag ents on Novembe r 16 and 17. She be lieved that her medical

re c or ds a c c ur a te ly

re fl e c te d th a t sh e wa s g ive n A tiv a n andL or zep a m, w hic h w e re ant i- anxie ty depre ssants. Furthe r, Mrs. De Be rry said that she wa s g iven Perc ocet, a painkiller depres sant, and Ox y c o d o n e wi t h Ac et am i n o p h en , wh i ch i s al s o a d ep re s s an t

. S h e a gre ed t h at al l o f t h es e d ru gs would have a n eff

ect on he r per ceptions and memory . Mrs. DeB erry was c erta in that the Def

endant

wa s th e on ly

pe rs on in the ro om w ith he r h us ba nd be fo re sh e e nte re d. On re c ro ss- e xami na tio n, Mr s. DeB erry ag ree d that she was not on pain medications on Marc h 16, which wa s the date tha t she g ave her de position for this case. She a g ree d that she previously testified t hat s he wa s stabbed af ter the strug g le with the spea

r g un. She then re ad a portion of her de position i n which she r esponded to the
q u e s t i o n ab o u t h e r

t w o s t ab w o u n d s b y

s a y i n g , “ I feel like my wounds wer e afte r [I took the spear
g un].” (emphasis adde d). The Def endant’ s counsel asked w hat had ha ppened be tween Ma

rch 16 and the da y

of trial to make Mr s. DeB erry convince d that her stab wounds occ urre d afte r taking the
spear g un. Mrs. DeB erry said that she rec alled that the first thing that she did w hen she enter ed the
g ara g e wa s to step betwee n Mr. DeB erry and the De fenda nt. Mrs. DeBer ry said that she did not

rec all telling Ag ent J ones on De cembe r 13, wh en s h e was no long er on pa in medication, that Mr. DeB erry had told her tha t he was slee ping w ith Sheila J ones and ab o u t s o m e incidents involving Shelia J ones.

Danielle DeB erry , the victims’ da ug hter, testified that she was living with he r pare nts on the nig ht of thi s inc ide nt, a nd sh e de sc ri be d the m a s ha vin g a lov ing marria g e

. Da nie lle c on fi rm e d th a t, the evening of Novembe r 14, 2002, she we nt out to dinner with her mother, f ather , and sister, a nd they returne d home bet we en 8:00 and 9:00 p.m. After the y returne d home, her

mother and f

ather said that they wer e going to ride around for a li ttle bit and talk, which was not unusual. Danielle a nd her sister w atche d television and then we n t t o b ed around 11:30 p.m. The next thing that she

reme mbere d was he aring her mother scre aming at ar ound 2:00 a.m. S h e said that she g ot up and
went toward the scre aming and hear d her mother scre aming
, “Will, we’ re y our fr iend” a nd “Stop,” and she sa w that the door to the gar ag e was closed. Da nielle opene d the g ara g e door a nd saw a man-9-

that sh e h ad n ev er s een before , whom she identified a s the Def endant, a nd she saw he r mother
sta nd ing ne ar the De fe nd a nt. She sa id that th e De fe nd a nt t oldhe r t o c los e the do or , b ut s he jus t stared at him. He told her a se cond time t o close the door as he moved toward her, and she closed the door. She he ard he r mother y ell to her to ca ll 9-1-1. Daniel l e called 9- 1-1 immediately , and, when she later w ent into the g ara g e, she saw that her fathe r had been stabbed. She saw a spear g un ly ing ne arby , which she r ecog nized as belo n g ing to he r father. Da nielle said that her mother wa s holding onto her

fathe r’s body

telling him to “hang on.”

On c ro ss- e xami na tio n, Da nie lle te sti fi e d tha t sh e ne ve r sa w the De fe nd a nt w ith a we apo n in his hand, and she ne ver sa w the Defenda nt attack her mot her or fathe r. Da nielle conc eded tha t her fa t h erwa s a j ea l o u s m an , an dh e w o u l d co n fr o n ts o m eo n e if h e th o u gh t t h at t h ey h ad b ee n “m es s i n g” wi th h e r m oth e r. She a g re e d th a t th is c on fr on ta tio n w ou ld b e “ wo rs e ” if he r f a the r w a s n ot o n h is medication. Da nielle also said that a pie ce of the Defenda nt’s shirt was attac hed to the spea r g un and she conc eded tha t she had pre viouslytold police that her mother and father we n t t o ride a round beca use they wer e upset with ea ch other

.

J enna D eB erry , also the victims’ da ug hter, said that the victims had a loving marria g e. She said that, on the night of November 14, 2002, the victims were having a fig ht, but it was not a bad fig ht, and, ea

rlier that e vening , they

all had g one to dinner a nd had fun. They arrived back home at around 8:3 0 p

. m

. , an d she we nt into the livi ng room to watch te levision. Her pa rents lef t to ride around a nd talk, and she w ent to bed at around 12:00 a .m. T he next thing that she re membere d was Danielle le aving the bedr oom that they share d and then he aring y elling. She sa id that she looked out the door a nd down the hall, and she saw a man. J enna hear d her mother say , “Will, W ill, we’re y our frie nd s, ” a nd , “ Why

are y ou do ing t hi s. ” Jenn a sa w the ma n a t th e ba c k d oo r s trug g lin g to g e t it
op e n. Th e n, wh e n h e g ot i t op e n, he we nt thr ou g h it, le ft , a ndsh ut the do or be hin d h im. She c ou ld not see he r mother or

her f ather , so she went into the g ara g e, and she saw h er m o t h er h o l d i ng her fathe r say ing “ Danny , . . . I need y ou. The g irls ne ed y ou.” J enna sa id that she saw that he r fa ther was hurt a nd that Danielle w as on the phone . She went bac k and forth betwee n her mother , who was in the g ara g e, and D anielle, who w as in the living room, to r elay information for the 9-1-1 ope rator.

On c ro ss- e xami na tio n, Jenn a sa id that sh e did no t kn ow wh o le t the po lic e int o the ho us e when they

first arrived. She said that neither she nor Da nielle had blood on the ir hands at this time. J enna r emember ed that her mother told her to tell the 9-1- 1 opera tor that the person who attacked her f ather was driving a blue or bluish-gr een car

. She said that neither she nor Da nielle wer e we aring shoes, and the pictures of the crime scene showed their bloody , bare footprints. J enna sa id that the Tenne ssee B ureau of I nvestig ation (“TB I ”) ne ver req uested their ha ndprints or footprints. J enna identified picture s that showed a larg e area of bl ood by the front of t he door, and she did not know how the blood g ot there or on the outside of the door beca use her fathe r was i n the g ara g e. Jenna tol d th e TB I

a g e nts that, at f

ir st, sh e tho ug ht tha t th e scr eam ing that sh e he ardwa s h e r p are nts fig hting. She admitted that her father had rece ntly lost the fa mily ’s truck, but she did not know how or why

.

J ere my Ethridg e testified that, on Nove mber 15, 2002, he was working as a 9- 1-1 dispatch-10-

operator when he rec eived a call fr om Danielle De Be rry at ar ound 2:00 a.m. Danielle to l d the
operator that someone that her pare nts kne w had enter ed the home, and Ethridg e could he ar a lot of

scre aming in the backg round.

Brian R obinson, who was a deputy for the Humphrey s County Sheriff’ s Depa rtment at the time of this incident, testified that, on November 15, 2002, at around 2:06 a.m., he hea rd a c all that there was a n alterc ation in New Johnsonvil le. The caller said that her father and anothe r man we re fig hting, a nd the ca ller mentioned blood. The de puty said that he we nt to the ca ller’s a ddress, a nd, wh e n he arrive d, he sa w two y ou ng g ir ls in the liv ing ro om, on e of wh om wa s on the ph on e . D e pu ty Rob ins on sa id tha t th e g ir ls p oin te d to the g ara g e , whe re he fo un d Mr. De B e rry on the fl oo r a ndMr s. DeB erry kneele d over him in “hy sterics.” He a lso saw a spe ar gun ly ing on the floor, and he did not

s ee any knives. He sa id that he did not see Mrs. De Be rry leave the g ara g e until Mr. DeB erry was loaded into t he ambulanc e. On c ross-examination, the deputy said that when he arrived the DeB erry s’s ca

r wa s in the drivewa y , but h e d i d n o t rec all whether another car was a lso in the drivewa y

.

Jose ph Du nc a n, wh o w a s a n of fi c e r wi th the Ne w John so nv ill e Pol ic e De pa rt me nt at th e tim e of this incident, testified that, when he enter ed the house throug h the side door located nea r the drivewa y , he noticed tha t a pool of blood was a t the threshold of the door, and he saw that the room was filled with boxes. Office r Duncan saw Mr. DeB erry ly ing on the floor and Mr s. DeB erry on her knees be nding ove r him, holding a t-shirt or towel c overe d in blood on Mr. DeB erry ’s abdomen, a nd
say ing, “B reathe, Danny .” The officer saw a spear g un in the g ara g e nea r Mr. De Be rry . When the EMTs arrived, Off

icer Dunca n and anothe r off

icer had to phy sically

remove Mrs. DeB erry

from her hu sb a ndso that he c ou ld b e tr e a te d, a ndhe de sc ri be d h e r a s “ hy ste ri c a l.” Th e of fi c e r aske d M rs

. DeB erry if she wa s injured, and she said that she wa s n o t s u re , b u t she thoug ht that she had be en stabbed. Of

fice r Dunca n then noticed some wounds on Mrs. D eB erry . On cr oss-examination, the office r said that Mrs. De Be rry was not inside the utilityroom when he found her

.

B ri a n B a ke r, a n of

fi c e r wi th the Hu mph re y s Cou nty She ri ff ’s De pa rt me nt, te st if

ied that
, when he enter ed the DeB erry home, he saw Danielle from the living room, and, as he we nt into the
g ara g e, he sa w J enna in the utilit y room. He went into the gar ag e and saw Mr. De Be rry on the floor and Mrs. De Be rry

kneeling down beside him, “ve ry hy sterica l.” He said that he and another office r

remov e d M r s

. D e B e rr y

w h e n th e E M T s arr iv e d
, a n d th e y s a t h e r o n s o me b o xe s n e ar

th e d o or. Offic er Bake r not iced that Mrs. DeB erry was a lso wounded, and she had one w ound to her ne ck and one to her abdomen. The office r saw a spear g un at the sce ne but no knives.

Ke vin Du ke , w ho was a vo lun te e r w ith the Ne w Joh ns on vil le F ir e De pa rt me nt at th e tim e of this incide n t, s a id th a t h e w a s c a ll e d to th is s c e n e a s a “ f ir s t r e s p o n d e r ” tr a in e d to s ta b il iz e the patient until the para medics or EMTs arrive. When he went into the g ara g e, he sa w Mr. De Be rry on the floor a nd Mrs. DeB erry kneeling next t o him. He described Mrs. DeB erry as in “hy sterics,” and he aske d the police of

fice rs to remove her so that he could work on Mr. DeB erry . The off icer described M r. DeBe rry ’s phy sical conditi on, say ing that he had labore d breathing and only a fa int pulse. Mr. De Be rry

had a la rg e g aping wound to his neck a nd four to five stab or puncture wounds-11-

to h is a bd ome n, a s w e ll a s n ume ro us c uts a lon g his arm s. On c ro ss- e xami na tio n, Du ke te sti fi e d th a t, since this crime, he has assisted the Def endant with r eading and spelling . He sa id that the Def endant needs a ssistance in these a rea s.

Tw o E MT s, Jan C ra me r a ndTr a vis Mo ns ue , re sp on de d to the c ri me sc e ne . Cr a me r s a id tha t, as soon as they

enter ed the door way , they slipped in larg e amounts of blood on the floor. Cra mer testified t h at they

immediately

went to Mr. De Be rry , and she thoug ht that he was de ad, but they

c arrie d h im t o th e a mbu la nc e a ndpe rf or me d CPRon him un til the y re a c he d th e ho sp ita l. S he sa id that Mrs. DeB erry

was scr eaming “help him, help him.” Monsue sa w Mr. De Be rry ly ing on the floor, and Mr s. DeB erry

was hy sterica lly

scre aming at them to help him. He said that he stepped on
t h e s p e ar g u n a s h e w a s t r yi n g t o g e t t o M r

. D e B e rr y. M o n s u e s a i d t h a t t h e y g r ab b e d M r

. D e B e rr y,

car ried him to a cot, and place d him into the ambulance
, but he assumed that Mr. De Be rry was not breathing. On cr o s s -e x am i n ation, Monsue said that Mr. De Be rry was not ly ing on the spear g un when he arrived and that he g ave his boots to the TB I for testing

. Cramer

said on cross- examination that she did not notice a pink swe ater or flee ce ne ar Mr . DeB erry , and she a lso ga ve her boots to the TB I the fo llo wi ng mornin g to b e te ste d f or bo ot p ri nts

.

L awr ence Richard Jackson, J r., M.D., testified that he was in the e merg ency room on the night that Mr. DeB erry was broug ht to the hospital, a nd Mr. DeB erry was de ad whe n he ar

rived a t the hospital because he had bled to dea th as a re sult of multi ple stab wounds. Dr . J ackson w as prese nt when Mrs. De Be rry arrived at the hospital, a nd she was sent by helicopter to V ander bilt for
trea tment because her

injuries wer e g reater than the y could ca re f or in their hospital.

Che ry l Mo ra n a ndDo ug la s T . Sp a nn , b oth EM Ts , a lso re sp on de d to thi s in c ide nt t o a ssi st Mrs. DeB erry , afte r the first EMTs that responde d rea liz ed that there wer e two patients, the sec ond being Mrs. DeB erry . When Moran ar rived, she a ssessed Mrs. De Be rry and dete rmined that she had

a thr e e inc h, ve ry

se ve re la c e ratio n to h e r n e c k a ndtw o a bd omi na l w ou nd s. She sa id tha t Mr s. DeB erry ’s nec k wounds wer e bleed i n g p ro fusely , and Mrs. De Be rry was “ hy sterica l” and ke pt

scre aming
, “I f he’s dead, let me die.” Spann sa id that Mrs. DeB erry had a sta b wound to the nec k and to the si d e o f the c hest. He a ttempted to control the blee ding a nd took her to the a mbulance. Spann described M rs. DeBe rry as “hy sterica l,” and Mrs. D eB erry was saying tha t she did not want to live if her husba nd had died. Spann sa id that Mrs. DeB erry said that she was stabbed by a man

na me d W i l l a n d t h a ts h e a n d h e r h u s b a n d h a d m e tW i l l i n a b ar e ar l i e r t h a te v e n i n g

. O n c ro ssexamination, Moran said that Mrs. DeB erry told he r “he was coming though the door and he sta bbed me on . . . his way

out.” She said that, while Mrs. DeB erry ’s wound did not look superfic ial to her, she would not arg ue if Vande rbilt had said that it was, in fac t, superfic ial. On cr oss-examination, Spann said that Mrs. DeB erry told him that Wil l a nd her husband had g otten into an arg ument, but the y ha d ma de up la te r tha t e ve nin g , a ndWill h a d b ou g ht h e r h us ba nda be e r. Mr s. De B e rry

tol d h im that “ a sp e ar g un wa s han g ing on the wa ll” a nd sa id she wa s “st abb e d a s h e le ft .” She didno t te ll him that sh e wa s st abb e d w ith the sp e ar g un

. He a lso sa id tha t Mrs . De B e rry didno t sa y that Will had stabbe d her husba nd.

L aura J ane H odg e, a spe cial ag ent fore nsic scientist for the TB I
, testified that she wa s called-12-

to this crime scene
, an d she ar rived a t 10:55 a.m. She said that she took photogr aphs and a video

rec ording of the c rime sce ne, and she described and identified multipl e pictures for the jury

. Ag ent Hodg e said that she did not find blood in either the master be droom or the daug hters’ be droom, but she did see shoe prints of blood in the kitchen as we ll as i n some other area s of t he house. The a g ent also noticed that one of the stea k knives was missing f

rom a block of

knives in the ki tchen, but there
was no tra ck of blood be tween w here the DeB erry s were found and the knives. Ag ent Hodg e found blo nd e ha ir

that app e are d to ha ve be e n c ut a ndno t pu lle d, a ndthe pa rt ie s st ipu la te d th a t th e ha ir be lon g e d to Mr s. De B e rry . T he a g e nt s a w sho e pr int s in bloo d, wh ic h s he ph oto g ra ph e d. She a lso

co l l ec t e d t h e s p ea r gu n , a p i ec e o f a s h i rt , an d a d o o rk n o b fo r f u rt h erex am i n at i o n

. Age n tHo d ge testified that she took picture s o f t h e t re ad s of the boots of a ll of the EMTs and off icer s that were
prese nt at the cr ime scene

. She said that she then e liminated the pictures of the shoe prints in blood that matched those boot prints. She could no t el i m i n ate eight of the prints that she found in the blo oda t the c ri me sc e ne

. Th e a g e nt l a te r d e te rm ine d th a t th e se we re on e of the daug hte r’ s f

oo tprint s. On cr oss-examination, the ag ent testified that she did not examine Mr

. DeB err y ’s boots, and she wa s not reque sted to do so by

the State. She said that she did not perf orm Luminol testing on the re st of the house, including the sinks, to see if any knives or utensils had bee n washe d of blood.

Hoy t Eug ene Phillips, an age n t with the TBI , testified, as a n expert in the field of late nt fing erprints, that he collecte d fing erprint evidence in this case. He said that he attempted to g ather late n t f in g e rp r in ts f

r o m th e b lo o d o n th e d o o r f r a me , th e d o o r

k n o b
, th e s p e ar

g u n , a c ar d b o ar d b o x, and mul tiple other it ems. He said that he was unable to g ather any identifiable prints from any of these items. On cr oss-examination, the ag ent said that he did not attempt to g ather any fing erprint evidenc e fr om the Mr. DeB erry ’s body , and he c oncede d that this was technolog ically possible.

J o e M i n o r , a n a g e n t w i t h t h e T B I, t e s t i f i e d
, a s a n e x p e r t i n t h e f

i e l d o f f o r e n s i c s e r o l o g y,

w h i c h i n c l u d e s D N A a n a l ys i s , t h a th e v i d e o t ap e d t h e c r i m e s c e n e , w h i c h w a s p l a ye d f o r t h e j u r y. Ag ent Minor noticed multiple box es, and, on one of the box es, he sa w blood spatter that looked like it was caused by

blood spurting f

rom a major a

rteria l wound. Ag ent Minor also saw a spear g un ly ing in a pool of blood a nd, near it, a piece of a blue chec kere d shirt sleeve. The ag ent saw tha t two kn ive s w e re mis sin g fr om t wo se pa rate kn if e blo c ks in the kit c he n, wh ic h he didno t f indun us ua l, and he looke d inside and outside th e h o use for a knife or knives as othe r possible wea pons. The
ag ent per formed D NA testi n g, an d h e fo und only Mr. DeB erry ’s blood on the spea r g un, the blue chec kere d shirt sleeve, a

watch, a nd the door knob. Ag ent Minor found only Mrs. DeB erry ’s blood on her turtlene ck, but he f ound Mr. DeB erry ’s blood on the b ac k o f h er j eans. The ag ent tested

scra pings f rom underne ath Mr. De Be rry ’s fing erna ils, and he found only Mr. DeB erry ’s DNA.

On cr oss-examination, the ag ent said t hat he did not remember being told that one theory the police had was t hat M rs. DeBe rry stabbed Mr. D eB erry

while Mr. De Be rry

was holding her a

round her ne ck fr om behind. He c oncede d that, if this theory wer e true , there woul d likely be Mr. DeB erry ’s blood on the bac k of Mrs. DeBe rry ’s turtlenec k. He sa id that he did not test the back of h e r t u r t l e n e c k

b e c a u s e h e w a s n o t r e q u e s t e d t o d o s o

. A g e n tM i n o r c o n c e d e d t h a th e t e s t e d o n l y a small square of

the che cker ed shirt, and he said that someone e lse’s blood could be on a nother a rea of the shirt. The a g ent said that he did not find it unusua l tha t the re w ere two knives missing fr om-13-

the knife bloc ks in the kitchen. Ag ent Minor testified that the TB I conducte d a “c ursory ” sea rch f or knives in the house, but they did not look under the beds, in the c raw lspace , or in the attic. The ag ent said that he did not che ck the sink traps for blood, and the ag ent did not rec all which towels he tested for blood. He admitted that he did not chec k the bathtubs or the showe rs or the d i s h t o we l s i n the kitchen ar ea. T he ag ent did not te st the blood on the car dboard box to see if it was Mrs. De Be rry ’s blood, but ag ree d that, i f it was her blood, it would have bee n inconsistent with her story of the

e ve nts . T he a g e nt d id not re me mbe r, un til he sa w the vid e ota pe , tha t the re we re ba

re fo otp ri nts in blo od a t th e c ri me sc e ne . H e sa id tha t, i f h e ha d b e e n a wa re of the se fo otp ri nts , h e wo uldha ve tol d Ag ent Philli ps about this, and Ag ent Philli ps would have collected samples. The ag ent s aid that he did not check Mr

. DeBer ry ’s body to determine w hose blood was pr esent on him. On re direc t

e xami natio n, the a g e nt t e sti fi e d th a t, i f the re we re blo odon the ba c k of Mr s. De B e rry ’s sh ir t it c ou ld have be en tra nsfer

red by her le aning ag ainst one of the bloody box es.

Br uce Phil lip L evy , M.D., testified t hat he is the chief medical ex aminer in Nashville, and he pe rf or me d M r. De B e rry ’s a uto ps y

. He sa id that Mr

. De B e rry ha d fo ur sta b w ou nd s to the c he st that injured his liver and right lung, and e ach of these four

injuries would have be en fatal. One of the stab wounds we nt throug h Mr. DeB erry ’s rib, which he said would take a lot of for ce. H e had three stab wounds to his back, a nd two of those would likely have be en fatal beca

use they struck the rig ht lung. The doctor a lso saw m ultiple wounds to Mr. DeBe rry ’s head, torso, arms, and leg s. Mr. DeB erry ’s body

also had multiple blunt force injuries to the head, body , arms, and le g s. There was

so me e vid e nc e that th e kn if e or the vic tim mov e d whi le be ing sta bb e d. Som e of the wo un ds c ou ld have be en cr eate d with such force that the hi lt of t he knife left a br uise on Mr. De Be rry ’s skin. The victim also had multiple defe nsive wounds to his hands. The doc tor opined that Mr. De Be rry died as a result of m ultiple sharp force injuries, and his death was cause d by another person. The doctor also opined that it was not possible that t h e s p ea r gu n cause d any of the major injurie s to Mr. DeB erry , and the injuries we re c aused by a knife that had only

one shar p edg e. Dr . L evy

said that M r

. D e B e rr y ’ s b lo o d a lc o h o l le v e l w a s

. 1 1 8 % a t th e ti me o f h is d e a th
, w h ic h is b e y o n d the leg al limit to opera te a c ar. The doctor identified multiple photog raphs of the def ensive wounds on Mr. DeB erry ’s hands a nd arms. He opined that Mr. DeB erry ’s wounds wer e ca used by a sing le-e dg ed kn if e that w a s th re e to fo ur inc he s long by on e inc h wid e

. Th e do c tor no te d tha t Mr . D e B e rry did

no t su sta in a ny

inj ur ie s to the ins ide of his ha nd s, bu t th e re we re inj ur ie s to the ba c k o f h is h a nd s. Th e do c tor

sa id tha t it

wa s p os sib le that Mr . D e B e rry wa s h old ing the sp e ar g un . H e sa id tha t so me of the wo un ds wo uld ha ve imp e de d Mr. De B e rr y ’s abil ity to hol d the sp e ar g un be c a us e he wo uld have be en losing consciousness. Dr . L evy said that he determined from Mr. DeBe rry ’s clothing that M r. De Be rr y

wa s s t an d i n g u p ri gh twh en h e w as b l ee d i n g.

D r

. L e v y s a idM r s

. D e B e rr y ’ s n e c k w o u n d s w e r e s u p e r f

ic ia l, me a n in g th a t th e y

d idn ot penetr ate be y ond a ce rtain depth, but they still require d trea tment. Dr. L evy compar ed Mr. DeB erry ’s wounds to Mrs. DeB erry ’s wounds, and he conclude d that they wer e similar. Dr. L evy did not see any

“hesitation” ma

rks nea r Mrs. De Be rry ’s nec k wounds, which he would expect if she had inflicted the wounds on herse lf. Dr. L evy examined pictures of Mr s. DeB erry ’s hands, and he saw what appea

red to be defe nsive wounds on the front and back her hands. The doc tor testified that he wa s aff iliated with the L earning Cha nnel, and he performe d part of Mr . DeB erry ’s autopsy during-14-

a show. He said that, during that prog ram, he was try ing to de termine if some of Mr. DeB erry ’s wounds wer e cr eate d by

a spea r g un, and he c ould not rule out that the spear g un cause d some of the

wou nd s. Ad dit ion a lly , a no the r s pe c ulatio n h e ha d w a s w he the r the se wo un ds we nt c omp le te ly throug h Mr. DeB erry ’s body , howeve r, t he autopsy showed that this specula tion was not acc urate

. The doc tor said that, on the show, he also discussed theor ies of who may have c ommitt ed this crime, and he disc ussed whethe r this may have be en an a ltercation between husba nd and wife

.

On cr oss-examination, Dr. L evy testified that he discussed on the show that perha ps this was a fig ht betwee n Mr. and Mrs. D eB erry and t h at an u nknown third party did not ex ist. The Def endant’ s Counsel then s howed a videotape of the television show to the jury . I n the videotape
, the doctor discusse d the possibilit y that Mr. DeB erry

had his rig ht arm ar ound Mrs. DeB erry ’s nec k during a phy sical alterc ation betwee n the two. The doctor conce ded that it wa s un u s u al i n an

a lte rc a tio n invo lvi ng a kn if e to se e de fe ns ive wo un ds on ly on the ba c k o f the ha nd s, a s w a s th e c a se wi th M r. De B e rry . D r. L e vy sa id tha t Mr . D e B e rry

wa s f ive fe e t a ndnin e a nd on e ha lf inc he s ta ll, and he sa id that a woman c ould have m ad e t h e wo unds that he saw on Mr . DeB erry ’s body . Dr. L evy said that Mr. and Mr s. DeB erry ’s wounds we re not c onsistent in number.

J ose J. Diaz , M.D., testified, as an ex p er t i n trauma sur g ery employ ed as a

surg eon at Vande rbilt University

Medica l Center, and he trea ted M rs

. De Be rry on November

15, 2002, for

sever al stab wounds. Dr. Diaz te stified that Mrs. DeB erry had sever al minimal facia l injuries and one lac eration on the left side of he r nec k. He d es cr i b ed Mrs. DeBe rry as cove red in blood and

su ff e ri ng fr om “ mark e d” e mot ion a l di str e ss. Up on fu rthe r e va luatio n, it wa s c le ar t o h im tha t Mr s. DeB erry require d operative intervention for her a bdominal injuries bec ause she was blee ding int e rn a lly

. Dr . Dia z pe rf

or me d sur g e ry on Mr s. De B e rry a ndfo un d a

mod e rate a mou nt o f b loo d in h erab d o m en , an d wh i l e h ero rga n s we re l ar gel y wi t h o u t i n j u ry t h eyre q u i re d s o m e d i re ct s u t u ri n g. He a lso repair ed the de fec ts inside and outside of the abdominal wa ll caused by stab wounds that

wer e appr ox imately

two to three c entimeters in leng th. H e examined Mrs. DeB erry ’s nec k wound, deter mined it was not critical, a nd repa ired the w ound. Dr. Dia z noted that pictures of Mr. D eB erry ’s stab wounds showed tha t they wer e two to three centimeter s in width, which was the sa me width as Mrs. DeB erry ’s stab wounds.

On cr oss-examination, Dr. Diaz testified that Vande rbilt’s m ed ical re cords indica ted that Mrs. D e B e rr y ’ s n e c k

w o u n d w a s s u p e r f

ic ia l a n d th a t s h e h a d a

h is to r y o f d e p r e s s io n b u t s topped
takin g he r m e dic a tio n two mo nth s p ri or to this inc ide nt. Th e re c or ds a lso ind ic a te d th a t Mr s. DeB erry reported that she wa s tearf ul, easily startled and be lieved sh e wa s g uiltyconce rning her hu sb a nd ’s de a th. On re dir e c t e xami na tio n, the do c tor sa id tha t th e kn if

e pe ne tr a te d th re e a nda

ha lf to four inche s into Mrs. DeB erry ’s abdomen. The doctor sa id that Mrs. DeB erry would have ble d to death if he r injuries to her a bdominal cavity

wer e lef t unattended.

Sandra Pol torak, an ag ent wit h the TBI
, testified t hat she is a c omposite artist, and she we nt to Vander bilt Hospit al and interviewe d Mrs. DeB erry to attempt to crea te a c omposite drawing of the ma n w ho c omm itt e d th e sta bb ing

. Ag e nt Pol tor a k sa id that sh e ta lke d wi th Mr s. De B e rry wh ile Danielle D eB erry

was pre sent at ar ound 2:00 p.m. on November 18, 2002. The a g ent said that she-15-

was initially

conce rned be cause Mrs. DeB erry was on some medica tion and was in pain whe n she interviewe d her. A g ent Poltorak met with Mrs. De Be rr y a s econd time, on Nobember 25, 2002, beca use Mrs. De Be rry

was in consider able pa in and had take n painkillers during the first interview

. Mrs. DeB erry

provided infor mation ag ain and made some cha ng es to the orig inal composite picture. The a g ent ag ree d that Mrs. DeB erry was more comforta

ble with the sec ond composite draw ing tha n the first. The a g ent said that she was contac ted by an ag ent who aske d her to re draw the picture of
a suspec t by

chang ing the suspect’s ha irsty l e an d ad d ing f acia l hair to him. He told her that the dif fe re nc e be tw e e n the su bje c t a nd the c omp os ite dr a wi ng g ive n b y Mr s. De B e rry

inc lud e d h a ir sty le and fa cial hair . She said that she was g iven a picture of the subject, and she e liminated the bear d, the moustache , and the stubble fr om the picture.

Kimberly Noles t estified that she sa w a ne ws report on television about a suspec t, who stabbed a nother man, a nd the re port described how the suspect play ed pool a nd that he was a drifte r with a big belly
, and then the news report showed a c omposite sketch of the suspe ct. Noles testified that she ca lled the TB I

and told t h e p er s o n wi t h whom she spoke that she rec og nized the verba l description of the suspect and the sketch “ kind of sort o f” l o o k ed like him. She identified a photogr aph of the Def

endant, who she knew as “Thoma s.” Noles met the D efe ndant at the e nd of Aug ust 2002 when he a ssisted her af ter he r ca r broke down outside of Oklahoma City . She drove the De fe nd a nt’ s “ blu ish -p ur ple ” Ge o to Am a

ri llo , T e xas, a ndbe g a n a n in tim a te ro ma nti c rela tionship with the Def

endant, who indicated that he wa s single. T he De fenda nt bought he r a va n, wh ic h s he dr ov e ba c k to Te nn e sse e wh ile he fo llo we d h e r i n h is b lue Ge o. Whe n th e y g ot b a c k to Tenne ssee, the D efe ndant stay ed with her for a bout a wee k, and, during that time, he told her that his occupa tion was to clea n up chemica l oil spi lls. Noles remembe red se eing the Def endant’ s dr ive r’ s li c e ns e , w hic h s ho we d that he wa s in his mid -thirtie s, bu t sh e didno t r e me mbe r the la st name on the lice nse. She testified that a fter the Def endant stay ed with her intermittently , he aske d he r t o c ome a ndg e t him in Sea ttl e , Wash ing ton , but she re fu se d. Th e re a ft e r, the De fe nd a nt c a me back to stay with her, and they continued their romantic relationship during w hich she saw him shoot
po ol usi ng on ly on e ha nd

. No le s re c a lle d tha t the De fe nd a nt w ou ld c ha ng e his ha ir c olo r a ndle ng th

a ndhe sp ok e En g lis h a ndSpa nis h. On e nig ht in la te Oc tob e r or e arl y No ve mbe r, the De fe nd a nt s a id he wa nte d to g o to a

ne arb y ba r, bu t N ole s w a s ti re d a ndre fu se d s o th e De fe nd a nt l e ft

.

On cr oss-examination, Noles ag ree d that the Def endant looked he althier in court than he had in 2 00 2. She sa id tha t he tol d h e r h e wa s fr om Ma ine
, a nd he tr a ve le d to c le a n up c he mic a l sp ill s. Noles re called tha t the Def endant did not smoke, b u t h e d i d coug h a lot. Noles re called tha t the De fe nd a nt g ot m a d a t he r b e fo re he le ft be c a us e he did no t w a nt h e r u sin g dr ug s, a ndsh e tol d h im that, if she wa nted to, she could smoke a joint. S h e also remember ed that he w as g ood enoug h at pool to hustl e people

.

Amanda Collum testified that her mother is a truck dr iver, a nd in 2002 she trave led with her mother. On Nove mber 17, 2002, they stopped at a Petro truc kstop in Fort Smith, Arkansas, whe re she met the De fenda nt, who said his n am e wa s “Will Qver bey .” Collum said that the Defe ndant loo ke d d if

fe re nt i n co urt bec a us e wh e n she me t him he ha d no ha ir a nd a g oa te e . Co llu m sa id tha t, when she met the Def

endant, he was we aring jeans, a chec kere d flanne l shirt, a baseba ll cap, and-16-

white tennis shoes. Collum rec alled that the restaur ant at the truck stop w as full, and the De fenda nt

a sk e d if he c ou ld c ome a nd sit

wi th h e r a ndhe r m oth e r. Th e y a g re e d, a ndthe De fe nd a nt ate wi th them and told them that he was driving a diese l truck. She re membere d that the Def endant r ece ived “quite a few phone calls” on his c ell phone. Collum also testified that the De fenda nt told her that he wa s thirty -two, and she did not believe him so he showe d h er h i s driver’ s license. She

reme mbere d that the Def

endant spoke both Eng lish and Spanish, and he tol d her tha t he also spoke Fr ench a nd I talian. Further, he said that he had houses in Mexico, Maine, and Ca nada a nd that he
was not married. She said that, afte r she left t he truckstop, the Def endant c alled her

numerous times

eac h day for a couple of wee ks.

Kar en Rose t es tified that she is employ ed by Auto Z one Limited, which is a business that sells older used ve hicles in Seattle, Washington. On D ece mber 13, 2002, a man purporting to be “Willi am Qver

bey ” ca me in driving a 1997 Ge o that he wa nted to trade for a nother c ar w ith fewe r

m i l e s

. H e s a i d t h a t h e l i k e d t o t r a v e l a n d t h a t h e n e e d e d t o g e t b a c k t o C o l o r a d o b e c a us e tha t is wher e he worke d, and he did not want to take a c hance driving the Geo be cause it had 197,000 miles on it alrea dy . She also reme mbere d that, while there was some trash inside the car , the car was c lean ins ide . Ro se fo un d it un us ua l tha t the c ar wa s cle a n be c a us e mos t cars that c a me int o h e r b us ine ss require d profe ssional cleaning . Rose testified that her business t rade d Qver

bey a re d 1993 Escort for the blue Geo as a straig ht de al, meaning no money was e x chang ed. Rose desc ribed Qve rbey as “kind of a big g uy , dark ha ir, very

loud . . . You just got the sense that he wasn’t leaving until he got what he w anted.”

Rose rec alled that Qve rbey had a title to the Ge o that was in t h e name of and sig ned by Thomas Pear son, and Qve rbey said that Pearson w as hi s uncle. Althoug h the title was in Pearson’ s name, Auto Z one Limited was a ble to make the tr ade be cause the title was alre ady signe d. As part of the tra de, she c opied hi s driver’ s license. Rose identified t he Defenda nt’s driver’ s license, w hich listed his name as W illiam Qver bey
, as being the same driver’s lice nse that Qve rbey showed he r the day that he tra ded his car

. She did not, howeve r, recog nize the Defenda nt in court a s the man who purported to be Qver

bey , and she sa id that she did not see Qve rbey in the courtroom.

Rose explained that in a cash deal suc h as this her business would tra nsfer the title, and then send the title direc tly

to the person who pur chase d t h e v eh i cl e. R ose re called tha t, in Febr uary of 20 03 , Q ve rb e y

c a lle d h e r, a nd sh e re c og nize d his voi c e

. She sa id tha t he told he r tha t he ne e de d h is
reg istration, and she told him that the reg istration was sent to his Be len, New Mexi co addr ess, which was the a ddress listed on his license. Qve rbey told Rose that he was working in Colorado and that he neve r g ot the title, but his ta g s wer e g oing to e x pire so he nee ded some proof of owne rship. He asked Rose to send a new reg istration to him in Colorado, which Rose did. She rec alled that she se nt the re g istration to 4 611 Kipling Stree t, Apartment #15, Wheat Ridg e, Colorado. Rose sa id that Qver bey called he r ag ain in J une of 2003 a nd said that h e wa s defe nding himself in a leg al ac tion inv olv ing his Ge o, a ndhe ne e de d p ic tur e s o f h is G e o to sh ow that it ha d b e e n v a nd a lize d. Ros e informed Qve rbey

that the Geo w as sold, but she would make an eff ort to ge t some photogr aphs of the ca r. When Rose coul d n o t fi n d t h e p hone number of the buy er she did not pursue the matter further beca use it did not seem to be of g reat importance.-17-

Th e pa rt ie s st ipu la te d th a t:

[T] he Chevrole t Geo Metro a uto m o b i l e, g ree nish-blue in color, pre viouslyin the
po s s e s s io n o f

th e D e f e n d a n t, A lb e r t S a a v e d r a , a n d r e g is te r e d u n d e r th e n a me of Th oma s D a nie l Pears on , w a s se ize d b y the Pie rc e Cou nty

She ri ff ’s De pa

rt me nt,

ac ting in conjunc tion with the L akew ood Police Depa rtment, within the state of Washington; that the seizure of the vehicle oc curr ed on Apr il 8, 2004; that at the
reque st of [S pecia l A g ent] De rrick J ones with the Tenne ssee B ureau of I nvestig ation, the v e h ic le w a s p r o c e s s e d b y th e Pi e r c e Co u n ty

Sh e r if f ’ s D e p ar tm e n t, in a n e f

fort to determine if the re w as pre sent within said vehicle a ny thing of evidentiary

value in the matter of the State of Tenne ssee ve rsus Albert Saa vedra ; that no such evidenc e was found on this date within the Chevrolet Geo Me tro automobile.

Wil liam G

. Br ady
, I I I
, testified that he was an ag ent with the Colorado Burea u of I nvestig ations (“CB I ”), a nd, in J anu ar y of 2003, the TB I contac ted him, informed him of the homicide investig ation, and re quested that he investigate s ome phone calls t hat were made from the Def endant ’ s c e ll p h o n e to p h o n e n u mb e r s in Co lo r a d o

. T h e a g e n t f o u n d th a t o n e o f

th e p h one numbers ca lled by

the Def endant’ s cell phone was listed to a woman named Te djosunarto. The a g ent said that Tedjosunarto’s addre ss was listed as 4611 Kipling Street, Wheat Ridge , Colorado. Ag ent Br ady contac ted the apa

rtment manag er to e nsure that Te djosunarto lived in the apa rtment and showed the ma nag er the Def endant’ s picture. The manag er ide ntified the De fenda nt’s p i ct u re a s belong ing to a man named Thomas D. Pearson and said that Pearson lived in a partment n u mber fi ft e e n w ith Te djo su na

rt o. Th e a g e nt the n o bta ine d t he re nta l app lic a tio n f

or Sia na wati T e djo su na

rt o and Thomas Da niel Pearson, a fter which he rec eived two wa rra nts for Thomas Da niel Pearson f rom the State of Te nnessee . The a g ent went to the apartment with Ag ent L awr ence Gave ll to int ervie w Tedjosunarto about the phone c alls that had been trac ed to he r phone from the Def endant’ s phone and about he r re lationship with t he De fendan t

. W h en he ar rived a t the apartment, he aske d Te djo su na

rt o if he c ou ld s pe a k w ith he r a bo ut h e r r e la tio ns hip wi th P e ars on , a ndTe djo su na rt o s a id that she w as l at e fo r work a nd did not want to conduct the inter view. The ag ent said that Tedjosunarto’s body

lang uag e indi cate d to him that the Def endant may

be in the apa

rtment, and he asked Te djosunarto if the De fenda nt was in the apartment. Tedjosunarto immediately dropped he r head, w hich indicated to the a g ent that the De fenda nt may be in the apa

rtment. The a g ent enter ed the apa rtment and found the Def

endant we aring shorts and a t-shirt hiding in the bathroom with t he lig hts turne d o ff . Ag e nt B ra dy sa id tha t the De fe nd a nt w a s in the ba thtub wi th the sh ow e r c urta in closed, but there was no wa ter running , and the ba thtub was not wet.

Ag ent B rady

testified that he restraine d and int ervie wed the Def endant, and he dete rmined th at t he Defen dan t was th e man dep ict ed in th e ph ot ograph sen t to hi m by th e TBI

. Furt her, th e TBI de sc ri be d tatto os that

the De fe nd a nt m a y

ha ve , a ndthe a g e nt s a w tho se ta tto os on the De fe nd a nt. Ag ent B rady called the Def endant by the name Thomas Pear son, the name listed on the a partment renta l ag ree ment, and the De fenda nt told him that his name was Wil liam Qver bey

. The De fenda nt then pre sented a n identification ca rd fr om the State of Ne w Mexico that showed his photogr aph and lis t ed the name Will iam Qver bey and a N ew Me x ico addr ess. The a g ent also obtained a New-18-

Mexi co drive r’s lice nse that showed the Def endant’ s picture, the name William Qverbey , and listed the same N ew Me x ico ad d ress. The ag ent noted that both of these documents we re issued on the same da y . The a g ent recover ed several documents from the De fenda nt’s apartment, one of whic h

w a s a “ d e f a c e d ” So c ia l S e c u r it y

c ar d u n d e r

th e n a me Wi ll ia m V e r

b e y

. T h e d e f

a c e me n t a ppear ed in the are a in front of

the “V” in the body

of the doc umen t an d al s o in front of the “ V” on the sig na tur e lin e of

the do c ume nt. Th e a g e nt a lso re tr ie ve d a c e rt if ie d c op y of a n ori ginal bir th

certificate f

rom North Carolina tha t showed the na me Wil liam V erbe y and noted that it appe are d that the “V” had bee n defa ced on this docume nt as well.

The a g ent said that, afte r verifying the Def endant’ s identity , he plac ed the De fenda nt under

arr est and g ave the Def

endant Mira nda wa

rning s. Ag ent Brady asked the Def endant if he owned a vehicle, and the Def

endant told him that he owned a red For d Escort pa rked outside the a

partment and that his cell phone was located i n the Escort. Ag ent Brady asked the Def

endant if he owned a blue Geo c ar, and the Def endant said he did not. The Def endant then g ave Ag ent Br ady and Ag ent Gave ll verbal c onsent to se arc h the Escort. The ag ent found the Def endant’ s cell phone, which the TBI had told the ag ent had be en used to make sever al ca lls to C olorado phone numbers.

Ag e nt B ra dy sa id that he a nd Ag e nt Ga ve ll too k the De fe nd a nt to the Jef fe rs on Cou nty

Jail to be booked, a nd, rig ht before booking, the Def endant sa id that his rea l na me was Albe rt Saave dra. The a g ent said t hat, at that time, the Defenda nt also told him that he was in “big trouble” a nd that

“ [i]t [wo uld ] be a

lon g tim e be fo re [he ] g [o]t to see [his ] kid .” F urthe r, he sa id tha t “ if [the a g e nt] would have le t [ him] hug [hi s] ki d, [he] would have told [the ag ent] everything.”

O n c r o s s

- e xa mi n a ti o n , th e a g e n t c o n c e d e d th a t th e d a te th a t b o th o f th e New Me x ico identifications wer e issued wa s S ep tember 24, 2002, w hich was two months bef ore the alleg ed crimes in Te nnessee . Ag ent Br ady was awa re that the Def

endant may

have use d the name William while i n Tenne ssee, and the Defenda nt could have disposed of the identification cards that showe d his name as William. The ag ent said that the De fenda nt traded in a blue Geo and purc hased the For d Escort using the name Wi lliam Qver bey

. The ag ent said that, in addition to the fug itive warr ant from Tenne ssee, the D efendant had a misdemeanor w arr ant for f ailure to a

ppear on a re ckless driving ticket in Colorado. The warra nt for the f ailure to a ppear was listed under

the name T homas Danie l Pearson.

L awren ce Gav ell tes ti fi ed t hat , i n J anu ary of 200 3, he was work in g as an a gent f or t he C BI when he assisted Ag ent B rady in this Tennessee homicide investigation. Age nt Bra dy told him t hat the TB I had obtained phone rec ords from the Def endant’ s phone that indicated that the D efe ndant

wa s m a k i n g a n u m b e r o f c a l l s t o a C o l o r a d o a d d r e s s a n d a s k e d A g e n t G a v e l l t o g o w i th h im t o int e r v ie w a w o ma n w h o w a s li v in g a t th e Co lo r a d o a d d r e s s

. A g e n t G a v e ll u n d e r s to od that there

we re tw o w arr a nts fo r the De fe nd a nt’ s arr e st, on e fo r fi rs t de g re e mur de r a ndon e fo r atte mpt e d f ir st de g re e murd er. A g e nt G a ve ll r e c a lle d th a t, w he n th e y arrive d a t th e apa

rt me nt, Te djo su na

rt o

a ns we re d th e do or , a ndthe a g ent s id enti fi e d th e mse lve s a s a g e nts wi th the CB I by sh ow ing the ir badg es and a g ent identifica tions. Age nt Brad y at tempted to interview Te djosunarto, but Tedjosunarto said that she was la te for w ork and de clined to be interviewe d. Ag ent Gave ll said that-19-

they asked Te djosunarto if the De fenda nt was at the a partment, a nd Tedjosunarto said that he wa s not and g ave the m permission to s ear ch the a partment. The ag ents found the De fenda nt in the ba thr oo m sh ow e r w e ari ng g re y sh orts a nda

g re y t- sh ir t, a nd they

ha nd c uf fe d h im a ndg a ve him Mir a nd a wa rn ing s. Th e De fe nd a nt s a id tha t hi s n a me was W il li a m Q ve rb e y a ndthat hi s identification wa s on the kitchen table in his wallet.

The a g ent re called tha t the Def endant sa id he had a

red For d Escort that was pa rked in the parking lot of the apar

tment c omplex

. The ag ent asked if the Def endant had a ce ll phone, and the De fe nd a nt s a id h e didha ve a c e ll p ho ne , b ut i t w a s in a c tiv e a nd loc a te d in his ca r. At so me po int
, when Ag ent Gave ll was alone w ith the Defe ndant, the De fenda nt told the ag ent that the blue ca r that he owne d was in Albuquerque
, New Mex ico. L ater , when the ag ent was transporting the Def endant to jail, the Defe ndant re cante d and said that this was a lie. The De fendant also told the ag ent that he had another car parke d in Denve r, but the ag ent went to the a ddress the D efe ndant provided a nd could not find the ca

r that the De fenda nt describe d. On cr oss-examination, the ag ent s aid that the oth e r c ar tha t he wa s nev e r ab le to l oc a te wa s n ot a blu e Ge o. He sa id tha t th e De fe nd a nt t oldhim that he o w n e d mo r e th a n o n e c ar a n d th a t h e o w n e d th e r e d F o r d E s c o r t p ark e d in th e ap ar tment parking lot. Age nt Bra dy found the purc hase ag ree ment for the car and the Def endant’ s cell phone inside the ca

r.

Diane Frea s, a fugi t i v e spec ialist with t he Jeffer son CountySheriff’ s Offic e in Golden, Colorado, testified that she wa s g iven pape rwork to pr ocess “ Mr. Pear son” for extradition and was told that “Mr. P ea rs o n ” was upset about being called by that name be cause it was not his name. Fr eas said that, upon rec eiving that information, she spoke w ith the Defe ndant, he a dvised her tha t his name wa s not Thomas Pearson but wa s Albert Saavedr a, and he of fer ed her his mother’s phone

nu mbe r f or ve ri fi c a tio n. Up on he r q ue sti on in g, th e Def e nd a nt s a id tha t th e la st t ime he wa s in Tenne ssee wa s when the stabbing s in this case occur red. Fr eas told the Def

endant that she worke d fo r a la w e n f

o r c e m e n ta g e n c y

a n d w a s n o th i s a t t o r n e y , a n d h e w o u l d h a v e a c c e s s t o a pu bli c defe nder. The Def

endant then told he r about the cir cumstance s surrounding this kil ling. He told her that he had be en out the nig ht of the killing, a nd he boug ht a round of beers for sever al people a nd later le ft the bar with a man and a woman and went to t heir house. When they g ot to the house, the man made some comment to him about the Def endant liking the woma n and wa nting to be w ith her, and he told the man tha t he did not want any problems and just wante d to leave, and the man lef t and

came back with “something that y ou shoot -- that y ou pull back and s hoot -- the long thing that y ou pull back and shoot a nd that they beg an to w restle.” At this point, Fr eas ag ain advised the D efe ndant that he shoul d not be speaking with her, and he agr eed to waive ext radition beca use he sa id that “he wanted to go back and just g et i t all taken c are of.” The following day , the Def endant de cided not to waive e x tradition, and F rea s told the D efe ndant that he was innoce nt until proven g uilty , and the Def endant responded “oh, no. I did it.” At that point, Fre as stopped the De fenda nt by stating tha t he should not tell h er t h at i n formation. On c ross-examination, Fre as said that she did not know whether the Def endant told the CBI

ag ents the same story

that he told her.

Mik e F e lso c i te sti fi e d th a t, i n Jan ua ry of 20 03 , h e wa s a n o ff

ic e r w ith the Jef

fe rs on Cou nty She ri ff ’s Of

fi c e in C olo ra do a ssi g ne d to the ho mic ide un it. He sa id tha t hi s se rg e a nt i nf or me d h im-20-

that Dian e F rea s contac ted the sheriff’s de partment to tell them that a man na med “Thoma s Pearson,” who was in the ja il, may

want to speak with them. Office r F elsoci, as s i s t ed by I nvestig ator Da n Dunnebe cke, inter viewed the Def endant f or almost three hours, and he cre ated a v i deotape , a reda cted ve rsion of which w as play ed for the jury . The off

icer described the Def

endant’ s demea nor wh e n th e of

fi c e r w a lke d in to the int e rv ie w ro om a s “ [f]in e ,” bu t la te r the De fe nd a nt se e me d “ a lit tle nervous” and “[s]om etimes . . . a little emotional . . . [but ] [ n]e v er an gry .” Dur ing the interview, Offic er F elsoci aske d the Def endant to dr aw a picture of a spear g un that the Def endant sa id that Mr. De B e rry po int e d at him an d the ro om wh e re the mur de r o c c ur re d, a ndtho se pic tur e s w e re sh ow n to the jury

. The Defenda nt indicated that the strugg le occ urre d in the middle of the g ara g e. The office r

rec alled that the De fenda nt said that he wa s at “the TA ” and la ter c larified tha t he meant a truc kstop. Earl y in the i nte rv ie w, the De fe nd a nt s a id tha t hi s w if e g a ve him

mon e y , b ut l a te r h e sa id tha t hi s wife did not g ive hi m money

. The officer also understood the Def endant to say

that he we nt to a bar on the eve ning of

this incident with someone named “ Red” a nd only started buy ing drinks for

e ve ry on e a ft e r h e ha d b e e n a t th e ba r f or a wh ile . T he De fe nd a nt s a id tha t he wa s inju red in thi s incident, but the only

injury the offic er notice d was a small, healing cut on the De fenda nt’s left index fing er. The office r thoug ht it was clea r fr om the Def

endant’ s statement that the Def endant only

went into the ga

rag e and not into any

other pa rt of the house

.

Offic er F elsoci said that the De fenda nt told him that the Debe rry s’ two daug hters we re pres en t at the house whe n the Def endant wa s there. T he De fenda nt told him that the Def endant

c ou ld no t re c a ll “ lit tle thi ng s” a nd ind ic a te d that he ha d su ff e re d fr om se izur e s in the pa st, the la st of which w as “a

couple of months ag o.” F urther, he said that he had been taking 300 milli g rams of Di la nti n f or the se izur e s, bu t the la st tim e he ha d take n his me dic a tio n wa s app ro xima te ly on e mon th befor e the inter view. Of fice r F elsoci also re called tha t the Def endant mentioned tha t he had previously

suffe red a

stroke.

Offic er F elsoci described how the Defenda nt used hi s hands when he spoke and said that the Def endant told him at first that, on the nig ht of this incident, Mrs. D eB erry called he r husband’ s name. He then said that Mrs. De Be rry said, “Will, s top,” and f

inally chang ed his story

ag ain to say that Mrs. DeB erry

called to he r husband. The office r said that the Def endant demonstrated how, at

on e po int du ri ng thestr

ug g le be tw e e n h im a ndMr . D e B e rry , M r. De B e rry ’s ba c k w a s p r e sse d a g a ins t the Def endant’ s chest. The Def

endant also said that the shirt he wa s wea ring that night ha d blood on it, and he disposed of the shirt in a shower at a TA truc kstop.

O n c r o s s

- e xa mi n a ti o n , th e O f f ic e r F e ls o c is a id th e y in te r v ie w e d th e D e f e n d a n t for a n extensive pe riod of time a nd went over the same subjec t matter to help him remembe r wha t occur red. Of fi c e r F e lso c i a g re e d that he was un a wa re that Mr . D e B e rry

ha d b e e n d ia g no se d w ith ma nic de pr e ssi on bu t w a s n ot takin g his me dic a tio n. Th e of fi c e r s a id tha t th e De fe nd a nt a c te d a s if he did not know that the victim ha d died, and his pa rtner sa id to the Defe ndant “we ll . . . maybe something happene d afte r y ou left? ” The office r ag ree d that it is possible that something had happe ned to Mr. DeB erry afte r the De fenda nt left.

I nvestig ator Daniel Dunnebe cke, an investigator with the J eff erson County Sheriff’ s Offic e-21-

in G old e n, Col or a do , te sti fi e d th a t he int e rv ie we d th e De fe nd a nt with his part ne r, Of fi c e r F e lso c i. I nvestig ator Dunne becke described the interview room as being six fee t by eig ht f eet a nd said that he sat be tween two a nd five fe et from the D efe ndant. The investigator rec alled that the De fenda nt beca me emotional a t o n e point in the interview, but he notice d that there was ne ver a ny moisture coming from the Def

endant’ s ey es. The inve stiga tor reme mbere d that the Def endant sa id that, when he lef t Humphrey s County , he picke d u p a h itchhiker a t a TA truc kstop who drove him from Tenne ssee to De nver, Colora do, which would be a si x t ee n t o ei g hteen hour drive. I nvestig ator Dunnebe cke te stified that the Def endant sa id during the i nterview that he suff ere d a cut to his fing er during h i s s t ru ggle with Mr. DeB erry . The investig ator saw the cut and de scribed it as be ing approximately one quarte r to one half inch in le ng th a nd said it wa s heale d o v er

. I n v est igator Dunnebe cke sa id that, the day afte r he interviewe d the Defenda nt, he attempted to take a photogr aph of the De fenda nt’s cut, but the Def endant r efuse d this request.

On cr oss-examination, t h e Inv es t i gat o r D u n n eb ec k e t es t i fi ed t h at , wh en Of fice r F elsoci aske d th e De fendant where he g ot the cut on his fing er, the Def endant r esponded, “ I

don’t know, to be honest.” The Def

endant showe d him a scar on the Def

endant’ s ri g ht wrist. The investig ator identified the rig ht shirt slee ve of the Def endant’ s shirt, w hich was found at the crime scene , and he said that the rips or cuts in the shirt c ould be consistent with a wound to the rig ht w rist of the per son

wea ring the shirt.

J .C. D amesworth te stified that he is the chief de puty in Humphrey s County , and he a ssisted in this i nvestig ation by

sear ching for the murder w eapon at the DeB erry s’ house a nd by prepa ring

a ndsh ow ing mul tip le ph oto g ra ph ic lin e -u ps to w itn e ss e s

. A s p a rt of thi s in ve sti g a tio n, Chi e f D e pu ty Damesw orth rec eived information that, on the nig ht of the murder , the Def endant started his evening
at a TA Truckstop. The c hief de puty deter mined that the two closest TA Tr uckstops are on I -40, the first close to Jackson, Tenne ssee, a nd the sec ond close to Na shville, Tennessee

. He said that the TA Tr uc ks top ne ar N a sh vil le wa s a pp ro xima te ly 70 mil e s f

ro m N e w Joh ns on vil le , w he re the c ri me

occur red, a nd the TA Tr

uckstop nea

r Jackson was appr ox imately fifty miles f rom New J ohnsonville. On cr oss-examination, the chief de puty testified that the closest truck stop to New J ohnsonville was a Pilot. He said that he never sear ched Mrs. DeB erry ’s Volvo, and he did not sear ch for the mur der

we a po n in a

f e n c e d

- i n ar e a

i n t h e D e B e rr y s ’ b a c k y ar d w h e r e a d o g w a s k e p t

. C h i e f

De pu ty Damesw orth also did not se arc h the trash are a that was located on the g rounds, and he did not sear ch the re sid e nc e s o r c ars of Rho nd a Mil le r, Cr a ig Up c hu rc h or Gr e ta F low e rs

. He a g re e d th a t he did not try to asce rtain whe ther a ny

of those thre e p eople owned a da rk colore d, maroon c olored, re d, or brown ve hicle.

Charles Ha mmond testified that he resided at the Humphrey s CountyJ ail and beg an ser ving his sentence on Marc h 1, 2004, for v iolating his proba tion for sentenc es fr om theft offe nses that

occur red twe lve y ear s ag o. Hammond testified that the Defendant told him t hat he met a g irl in a bar, a nd she per formed or al sex on him, afte r which a guy came in and g rabbe d the woman by the hair a nd started be ating her. H ammond said that the De fenda nt t o l d him that he g rabbe d a paring kn if e a ndsta bb e d th e g uy

se ve ra l ti me s b ut tha t he didno t kn ow ho w ma ny tim e s u nti l he re a d it

in the newspa

per. The Defenda nt said that he st abbed the woman because he wa nted her to testify that-22-

she killed the man in self-de fense
, but she did not do what they had discussed and double -cr ossed him. The Def

endant told him that the man was not moving when the D efe ndant left the house . On

cross-e x amination, Hammond said that his previous theft convictions were felonies, a nd he denie d that he wa s testify ing be cause he had a hearing on his violation of proba tion charg e that wa s schedule d soon. Hammond ag ree d that the Defenda nt’s counsel had previously asked him if he ha d

ma de state me nts abo ut t

rying to kill so me on e a ndri p th e ir thr oa t ou t, a ndde nie d th a t he ma de the se statements. Then, w hen a ta pe of him making such st atements was play ed, he admitted that he had said those t hings and admitted ly ing unde r oath whe n first asked a bout these statements. Ha mmond denied that his t estimony was based upon conver sations that he overhea rd betwe en the De fenda nt and the De fenda nt’s attorney

. Ronnie E. Toung ette, the Sher iff for Hump h re y s C o u nty

testified that part of his job was being the chief

jailer. He said that the Defenda nt was broug ht to the jail in March of 2003 a nd had been loc ated ther e for a littl e over one y ear , and he c onfirmed that Ha mmond’s cell was c lose to the De fe nd a nt’ s c e ll. He sa id tha t, a c c or din g to p ro c e du re , w he n a n in ma te ’s a tto rn e y c ome s to vis it, they take the inmate and the attorney to a n interview room, wher e they can obse rve the m throug h a window. He sa id that, a lthough this wa s curr ently the proce dure, on Fe bruary 26, 2004, when the Sheriff w as unable to be at the jail, the De fenda nt’s attorney went back t o visit t he De fenda nt throug h the bar s of his jail cell. He said that the j ail rec ords i ndicated that the Def endant’ s counsel
enter ed the c ell are a ar ound 1:45 p.m. and left ar ound 4:00 p.m. The Sheriff sa id that it was not unusual for a ttorney s to visit clients in their ce lls, but he did not l ike that pra ctice.

The sheriff testified that Ha mmond was broug ht to the Humphrey s Countyjail on March 1, 2004, and Ha mmond was being held in Mississ ippi prior to that

. S h er i ff T oung ette said that he hear d the Def

endant’ s counsel cross-e x amining Hammond, during which he he ard H ammond deny that his testimony was based upon conver sations that he over hear d betwee n the Def

endant a nd the Def endant’ s counsel. The sheriff said that he sea

rche d his journal entries and wa s unable to find any tim e , o the r tha n F e br

ua ry 26 , 2 00 4, wh e n th e De fe nd a nt’ s cou ns e l visit e d th e De fe nd a nt at hi s ja il cell

. Sh e r if

f T o u n g e tt e r e c a ll e d th a t H a mm o n d to ld h im th a t h e w a n te d to ta lk w ith s o meone on Ma rc h 1 6, 20 04
, and Agent J one s h app e ne d to be in the ja il, so the sh e ri ff c a lle d A g e nt Jon e s to

come a nd speak w ith Hammond.

On cr oss-examination, the she riff said that, if the Def endant’ s counsel said that they had bee n to see the D efe ndant at his cell more times than i ndicated by the re cord, he would assume that the jailer fa iled to make a note reg arding the visit because he did not think that either of the Def endant’ s counsel would lie. Sherif

f Toung ette ag ree d that it was also an important re quirement that the ja ilers make a notation of items give n to an inmate. He said he did not know whether his recor ds indicated that the Def

endant’ s counsel broug ht him chee seburg ers or a li g ht fix ture. F urther, he ag ree d that it was possible that the Def endant’ s counsel visited the De fenda nt and a r ecor d of the visit w as not

ma de in the bo ok s.

Gary E. Dill testified on the Def endant’ s behalf tha t he was in Te nnessee on November 14, 2002, and witnessed a n alterc ation at a dr inking e stablishment betwee n a blonde- haire d woman, who-23-

was a bout five fe et and six or seven inche s tall, and a man, w ho wore a pair of bl ue jea ns and a bla ck

swea ter. He said that the woman was wea ring white tennis shoes, a pair of stone washe d jeans, a nd

a wh ite lon g -s le e ve d s hirt w ith so me thi ng on the fr on t of the sh ir t. H e sa id th at the wo ma n c a me int o th e ba

r, we nt s tr a ig ht t ow ards th e ba thr oo m, a nd , w he n th e ma n w a lke d o ut o f the ba thr oo m, she hit him. The man gra

bbed the woman’s hands, and they g ot into an arg ument. Dill rec alled that

“ no so on e r tha n [th e arg ume nt] s tart e d, it w a s p re tty muc h o ver. And
, then , [th e y ] we nt b a c k to having a g ood time.” Dill estimated that the woman struc k the man twice an d s h o v ed him away from her . Dill ag ree d that he has since lear ned that the man w as Mr. De Be rry

. He also said that he saw the D efe ndant there that evening and that the De fenda nt was “r eal f riendly with every

body

. . . . There wer e no proble ms.” He said that, when they g ot rea dy to leave
, the Defendant calmed Mr. DeB erry down bec ause Mr . DeB erry wanted to g o to J ackson because they serve liquor by

the drink, and he asked the Def

endant to g o with him. On cross-examination, Dill agr eed tha t he did not know the Def endant’ s name, bu t the Def endant wa s buy ing drinks for eve ry body . Dill reca lled that the D e f e n d a n tc a m e i n t o t h e b ar

w i t h M r

. D e B e rr y.

L indsey Rennee Netter v i l l e testi fied that she lived dir ectly acr oss the street f

rom the DeB erry s, and, on November 15, 2002, she woke up and ther e we re a mbulances a nd police off icer s outside her house

. Netter ville r eca lled that, at 1:30 a .m., she saw two c ars a t the DeB erry s’ house. One of the ca rs was the DeB erry s’ whit e Volvo and the other car was parke d at an ang le towar ds the ba c k y ardon the le ft

sid e of the dr ive wa y . Sh e re c a lle d th a t th e c ar parked at an angle was no t a hatchba ck and ha d a trunk, a nd it had its headlig hts and taillights on. Netter ville s t at ed t hat there

w a s n o c ar

p ark e d o n t h e r i g h ts i d e o f t h e D e B e rr ys ’ d r i v e w a y.

Ba sed upon this evidence
, the jury found the De fenda nt guilty of voluntary

manslaug hter a nd attempted first de g ree murder. T he De fenda nt filed a motion pursuant to Tenne s s ee Rule of Criminal Procedure 33(f) to set aside the ve rdict. I n its order ru l i n g o n the motion, the trial court

no te d th a t it

ha d n e g le c te d to ru le on the De fe nd a nt’ s motio n f or jud g me nt o f a c qu itt a l, p ur su a nt t o Tenne ssee Rule of Criminal Proce dure 29( a), at the close of the State’s proof a nd that this neg lect

was e rror . The trial c ourt, there fore , belatedly ruled on the motion and g rante d the motion as to the char g e of attempted first deg ree murder. T he court entere d a j u d gm en t o f guiltyto the lesserincluded off

ense of attempted sec ond deg ree murder, f inding that the evidenc e pre sented supporte d that offe nse.

II. Ana lys is

On app e a l th e De fe nd a nt c on te nds th a t: ( 1) the e vid e nc e is i ns uf fi c ie nt t o s us ta in h is conviction for attempted second de g ree murder; ( 2) the trial court err ed by not instructing the jury on ag g ravated assault as a

lesser- included offe nse of attempted first deg ree murder; (3) the trial court

e rr e d w he n it

too k h is m oti on fo r j ud g me nt o f a c qu itt a l un de r a dv ise me nt a ndwh e n it de nie d th is motion with respect to attempted se cond deg ree murder; and (4) the tr ial court e rre d when it denied his Rule 33(f) motion.-24- A. Suf fi ciency of the Evidence

The De fenda nt first contends that the e vidence is insuffici en t to sustain his conviction for attempted second deg ree murder. He first notes that attempted volunt ary manslaug hter is a lesse rincluded off

ense of attempted first deg ree murder and t hat t he jury convicted him of the voluntary

ma ns laug hte r o f M r. De B e rry , th e re by fi nd ing that he ac te d und e r p a ssi on , in se lf de fe ns e or

wh ile

c omm itt ing a n ass a ult

. Ac c or din g ly , the De fe nd a nt sta te s th a t th e e vid e nc e pr ov e s th a t th is w a s st ill his state of mind when he attacke d Mrs. DeB erry . Further, the D efe ndant asserts that had he wa nted
to kil l Mr s. De B e rry he c le arl y c ou ld ha ve do ne so

. Th e De fe nd a nt c on c lud e s that th ere is insufficient proof

to rule out that the De fenda nt had a ch an ce fo r his passion to subsi de or tha t he int e rp re te d M rs . D e B e rry ’s g ra bb ing of the sp e ar g un a s a

thr e a t a nd , h a vin g no int e nt t o k ill he r, jus t sla sh e d w ild ly

a t a nythi ng in c los e pr oximi ty to h is d ru nk e n b ra wl wi th M r. De B e rry . T he Sta te counter s that intent can seldom be pr oven by direc t e vidence and may be deduce d or infer red f rom the cha rac ter of the assault, the natur e of the act, a nd from all the c ircumstance s of t he ca se and tha t the c ir c ums ta nc e s in thi s c a se su pp ort th e c on c lus ion that the De fe nd a nt kn ow ing ly a tte mpt e d to kil l Mrs. DeB erry

.

When the sufficie ncy

of the e viden ce i s challenge d, the standar d of re view is whethe r,

c on sid e ri ng the e vid e nc e in the lig ht mos t fa vo ra ble to the pr os e c uti on , a ny ratio na l tr ie r o f f

a c t c ou ld have f ound the essential e lements of the c rime bey ond a re asonable doubt. Tenn. R. App. P. 13(e); J acks o n v

. V ir g in ia
, 4 4 3 U

. S. 3 0 7
, 3 1 9 ( 1 9 7 9 ) ; St a te v

. L e a c h
, 1 4 8 S. W. 3 d 4 2
, 5 3 ( Tenn. 2004); Sta te v. Re id, 91 S.W. 3d24 7, 27 6 ( Te nn . 2 00 2) . T he S tate is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nd a ll re a so na ble inf e re nc e s wh ic h ma y be dr a wn fr om that e vid e nc e . St a te

v. Da vid so n, 12 1 S. W.3 d 6 00
, 61 4 (T e nn

. 20 03 ). Qu e sti on s r e g ard ing the c re dib ili ty of wi tne sse s, the weig ht and value of t he evidence, and any fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t. I d. When a def

endant c halleng es the suff iciency of the evidence , this Court does
not rewe igh or

ree valuate the evidenc e. S t at e v

. Va u g hn, 29 S.W .3d 33, 39 (Tenn. Crim. App. 1998). B eca

use a ve rdict of g uilt aga inst a defe ndant re moves t h e p re s umption of innocence and raises a presumption of g uilt, the convicted criminal defenda nt bear s the burden of showing that the evidenc e wa s leg ally

insufficient to sustain a guilty verdic t. See S tate v. C arr uthers, 35 S.W.3d 516, 557-58 (Te nn. 2000).

Second deg ree murder is the knowing killing of another . Tenn. Code Ann. § 39- 13-210(a )(1) (2003). A pe rson ac ts knowingly with respec t to a result of the pe rson’s conduc t when the pe rson is awar e that the c onduct is rea sonably cert ai n t o cause the re sult. Tenn. Code Ann. § 39-11- 10 6( a )( 20 ) ( 20 03 ). Cr imi na l a tte mpt re qu ir e s th a t on e a c t “ wi th the kin d o f c ulp abil ity oth e rw ise require d for the of

fense . . . [and] with intent to cause a result that is an ele ment of t he off ense, a nd believes the conduct will cause t he result without further conduct on the person’s part.” Tenn. Code Ann. § 39-12-101( a)( 2) (2003). There fore
, criminal attempt re quires two material elements: (1) the culpability

require d for the attempted crime; a nd (2) a n ac t i n fu rt h era nce of the attempted c rime. W y att v. State, 24 S.W .3d 319, 323 (Tenn. 2000) . There fore , a def endant is g uiltyof attempted second de g ree murder if he knowingly attempted to kill another without adequate provocation and with the belief tha t his conduct would result in dea th without further conduct on his part. Whether-25-

a def endant “ knowing ly ” attempted to kill his victim i s a question of fa ct for the jury . State v. I nlow, 52 S.W .3d 101, 104 -0 5 (T en n . Crim. App. 2000). “I ntent, which ca n seldom be prove n by direc t evidenc e, may be deduc ed or infe rre d by the trier of

fac t from the cha

rac ter of the assault, the natur e of the a ct and f

rom all the circ umstances of the ca se in evidenc e.” I d. at 105.

I n the ca se under

submissi on, the evidenc e, viewe d in the light most fa vorable to the State, proves that the D efe ndant went to a ba r on the evening of November 14, 2002, wher e he me t Mr. and Mrs. DeB erry . He dr ove Mr. DeB erry back to the D eB erry

residenc e while Mrs. D eB erry followed them in her c ar. When they arrived at the house , Mrs. DeB erry went in to g o to bed, and the Def endant a nd Mr. DeB erry

stay ed outside the house and in the g ara g e. Shortly there afte r, a f

ight involving both a spe ar g un and a knif e ensue d, and the Def

endant kill ed Mr. DeB erry in a state of passion produce d b y adequate provoc ation sufficie nt to lead a r easona ble per son to act in an irrational manne r. See Te nn. Code Ann. § 39-13-211 (2003). During the fig ht, Mr. DeB erry called to Mrs. DeB erry

for he lp, and, hea

ring those crie s, she came i nto the gar ag e to find t he De fenda nt and Mr. De Be rry

wre stling with the spear g un. She stepped betwee n the two men and g rabbe d the
spear g un, and Mr. De Be rry fell backwar ds afte r l etting go of the s pear g un. The De fenda nt, who was much ta ller and big g er tha n M rs

. De Be rry , then jabbed a nd lunge d at Mrs. De Be rry . The De fe nd a nt s ta

bb e d M rs . D e B e rry

thr e e tim e s, tw ic e in the abd ome n a ndon c e in the neck . M rs

. DeB erry asked the Def

endant why

he wa s doing this and then her daug hter, Da nielle, who had he ard the noise, opene d the g ara g e door. The Def endant told Danie lle to shut the door, and then he fled,

on ly re turnin g to T e nn e sse e wh e n h e wa s ar re ste d in, an d extr a dit e d by , Colo ra do

. Af te r he wa s in jail in Tennessee , the Def endant a dmitted to another inmate that he killed a man, stabbed the ma n’s wife, a nd disposed of the we apon.

Ba sed upon this evidence , and viewing it in the light most favora ble to the State, a r ational juror could h av e c o n cl u d ed fr o m M rs

. De Be rr y ’s m u l t i p l e s t ab wo u n d s , t h e D ef en d an t ’s relative siz e, his subsequent flig ht from the sce ne, and his own state ments, that he ac ted knowing ly and intended to kill Mrs. DeB erry without the passion that would justify attempted manslaug hter. The Def endant is not entitl ed to re lief on this issue.

B. Aggravate d Assaul t Instruction

The De fenda nt next contends that the tria l court er red by n o t i n s t ructing the jury on

a g g ra va te d a ssa

ult a s a le sse r- inc lud e d o ff

e ns e of a tte mpt e d mu rd e r. Th e Sta te c ou nte rs fi rs t th a t th is issue is waived a nd second tha t ag g ravated assault is not a l esser-included of fense of first deg ree murder. T he trial c ourt has a duty to instruct the jury

on any lesser- included off

enses of the cha rg ed offe nse whe n such instruction is supported by the evidence, reg ardle ss of whether the Defe ndant has
reque sted such an instruction. Sta t e v

. Bo wles

, 52 S.W .3d 69, 74 (Tenn. 2001) ; State v. Burns

, 6 S.W .3d 453, 464 (Ten n . 1999). The sta ndard f or an a ppellate c ourt’s re view of the trial court’ s char g e to t he jury

reg arding lesser- included off enses is de no vo wi th n o p re su mpt ion of c or re c tne ss. State v. Moore

, 77 S.W .3d 132, 134 (Tenn. 2002)

.

I f an of fense is found to be a lesse r-include d offe nse, the court must ne x t a scertain whether-26-

the evidenc e justifies a jury instruction on the lesser- included off ense. Bow les

, 52 S.W .3d at 75. To do so, the court must fir st de termine whether there is evidence that “re asonable minds” could ac cept to establish the lesser- included off ense. B urns , 6 S.W .3d at 469. The court must view the evidenc e lib e ra lly in a lig ht m os t f

a vo ra ble to the e xiste nc e of

the le sse r- inc lud e d o ff

e ns e wi tho ut j ud g ing its

c re dib ili ty . St a te v. El y

, 48 S.W .3d 710, 722 (Tenn. 2001) ; Burns

, 6 S.W .3d at 469. Fina lly , the court must deter mine if the evide nce is “ leg ally sufficie nt” to support a convic tion for the lesserincluded off

ense. Burns , 6 S.W .3d at 469. The e vidence
, not the t heorie s of the parties, determines whether an ins truction on a lesser-included offense should be g iven. State v. Allen

, 69 S.W .3d 181, 188 (Tenn. 2002)

. Furthermore
, the decision to c onvict on a lesser- included offe nse should not be taken f rom the jury

simplybec au s e t h e element distinguishing the g reater off ense f rom the lesser

o f f e n s e i s “ u n c o n t r o v e r t e d

. ” Id

. at 1 8 9

. I f t h e e v i d en ce j u s t i fi es an i n s t ru ct i o n , t h e f ai l u re t o ch ar ge the offe nse is err or eve n though the evidenc e wa s also sufficie nt to su p p ort the g reater off ense. Burns , 6 S.W .3d at 472.

The State c orre ctly

points out t hat the Def

endant has risked w aiver

by not reque sting a t trial a jury instruction about agg rava ted assault. See T enn. Code Ann. § 40- 18-110(c ) (2003) . Further, he also risks wa iver by failing to pr ovide adequate citation to a uthorities a nd appropriate re fer ence s to the rec ord. See Tenn. R. App. P. 27(a)(7) ; Tenn. Ct. Crim. App. R. 10 (b). Our Supreme Court has re cently

held that “[t] he cur

rent ve rsion of [Tennessee C ode Annotate d] section 48-18-110(c )

su b j ec t s t h e rig ht to lesser-include d offe nse instructions to the g ener al rule tha t issues conce rning inc omp le te ins truc tio ns are de e me d w a ive d in the abs e nc e of a n o bje c tio n o r s pe c ia l r e qu e st. ” Sta te v. Pag e, – S.W.3d –, 2006 WL 300980, at *5 (Tenn. 2006). Further, “ Whil e sec tion 40-18-110(c )
prec ludes a de fenda nt who fails to reque st a lesser- included off ense instruc tion in writing fr om

se e kin g p l e n ar y ap p e l l a t e r e v i e w o f t h e i s s u e , a n ap p e l l a t e c o u r t i s n o t p r e c l u d e d f r o m su a sp on te revie wing the lesser- included offe nse issue under the plain er ror doc trine. State v. Rice, – S.W.3d __, 2006 WL

397524, at *26 (Te nn. 2006) (c iting Pag e, 2006 WL 300980, at *5).

I n the ca se pre sently

befor e us, the De fenda nt failed to re quest in writing an instruction on the offense of ag g ravated assault and is there fore prec luded under section 40-18-110 f rom seeking ple na ry app e lla te re vie w of the iss ue

. We w ill loo k, ho we ve r, to w he the r the tr ia l c ou rt ’s fa ilu re to instruct on the lesser -included of fense of ag g ravated assault wa s plain err or.

Whe n d e te rm ini ng wh e the r p la in e rr or re vie w is a

pp ro pr ia te , th e fo llo wi ng fi ve fa c tor s mu st be esta blished:

(a ) the re c or d mu st c le arl y e sta bli sh wh a t oc c ur

re d in the tr ia l c ou rt ; (b) a clea r and une quivocal rule of law must have been br eac hed; (c) a substantial rig ht of the ac cused must have been a dverse ly aff ecte d; (d) the a ccuse d [m ust not have wa ived] the issue for tac tical re asons; and (e) consideration of the err or [must be] “nec essary to do substantial just ice.

State v. Terry , 118 S.W .3d 355, 359 (Tenn. 2003)

. An error would have to be e specia lly eg reg ious in nature, s triking at the very heart of the fa irness of the judicia l proce eding to rise to the level of-27-

plain err or. Pag e, – S.W.3d at –, 2006 W L 300980, at *6.

We fi rs t c on sid e r wh e the r a c le ar a n u ne qu ivo c a l rule of la w h a s b e e n b re a c he d. Th e la w i s

se ttl e d th a t a g g ra va te d a ssa ult is n ot a le sse r- inc lud e d off

e ns e of a tte mpt e d fir st de g re e mur de r. Sta te v. Burns, 6 S.W .3d 453, 466-67 (Te nn. 1999); State v. Christopher Todd B rown, No. M1999- 00691- CCA-R3-CD, 2000 WL

262936, at *2 (Tenn. Crim. App., at Nashville, Mar. 9, 2000), Tenn. R. App. P. 11 application denied (Tenn. Sept. 10, 2001) . I n this case, howe ver, the trial court f ound that the evidenc e prese nted at trial c ould not sustain the Defe ndant’s convic tion for attempted f irst deg ree murder, and it r educe d that conviction to attempted second deg ree murder. We m u s t , t h erefore
, deter mine whether

ag g ravated assault is a lesse r included of fense of attempted se cond deg ree murder.

I n State v. Rush, 50 S.W .3d 424 (Tenn. 2001) , the Tennes s ee S u p reme Court held that

rec kless ag g ravated assault wa s not a lesser- included off ense of attempted s ec o nd deg ree murder under the Burns test. Rush, 50 S .W.3d at 429-30. The Court st ated that “ the offe nse of a ttempted

se c on d de g re e mur de r re qu ir e s pro of of the fo llo wi ng e le me nts : ( 1) a kn ow ing (2 ) atte mpt , ( 3) to kill another . See Te nn. Code Ann. §§ 39-13-210( a)( 1) (1999) (def ining second deg ree murder) ; 39-12- 101 (1999) ( defining criminal attempt).” Rush, 50 S.W .3d at 430. The Rush court expl ained:

[U] nder pa

rt (a) of the B urns test, rec kless ag g rava t ed assault cannot be alesserinclude d o ff

e ns e of se c on d d e g re e mur de r b e c a us e re c kle ss a g g ra va te d a ssa ult require s proof of e ither (a ) ser i o u s bodily injury or (b) bodily

injury and display

of a dea dly wea pon, neither of

which is requir ed to prove att em p t ed second deg ree murder.

I d. at 430. Furthermore , the Tenne ssee Supre me Court conclude d that part (b) of the Burns test was not satisfied. The Rush court expl ained:

[T]he ha rm c on te mpl a te d by the bo dil y inj ury e le me nt of re c kle ss a g g ra va te d a ssa ult is not less ser i o u s t h an the har m contemplated by the attempted killing e lement of attempted sec on d

d e g r e e mu r d er be cause many attempted murde rs do not involve any injur y at all t o the victim, where as a r eckle ss ag g ravated assault alwa y s involves b o d i l y i n j u r y.

I d. at 431. L ikewise, this Court has held that neither ag g ra v at ed assault nor assault is a lesserinc lud e d of

fe ns e of a tte mpt e d se c on d de g re e mur de r un de r the B ur ns te st. Sta te v. B ob by J. Hu g he s, No. W1999-00360-CCA-R3-CD, 2001 WL 91736, at *14 (Te nn. Crim. App., at J ackson, Jan. 26, 2001), no perm. app. filed . I n H ug hes
, th is Cour t no te d th a t, p ur su a nt t o th e statut ory e le me nts

a na ly sis ma nd a te d in B ur ns , “ de sc ri pti ve la ng ua g e in a c ha rg ing ins trume nt will

no t c re ate a lesser

inc lu d e d o f

f e n s e i f t h e s t a t u t o r y

e l e m e n t s o f

t h e g r e a t e r

o f f e n s e d o n o ti n c l u d e a l l o f t h e e l e m e nts of the l e s s e r o f

f e n s e o r o th e r w is e in d ic a te in c lu s io n v ia p ar ts ( b ) o r ( c ) o f B u r n s

. ” I d

. a t * 1 4 ; se e Br own, 2000 WL

262936, at *2 (holdi ng that assault and ag g ravated assault are not lesser include d of fe ns e s o f atte mpt e d f

ir st d e g re e mur de r un de r the B ur ns a na ly sis be c a us e the statut ory e le me ntsW e n o t e that t he D efen d an t arg ue s t ha t he m ay ha ve t esti f i ed kno w i ng t ha t he d i d no t f ac e “a p o ssi b l e c l ass 3

A f el o ny

. ” T he D ef end ant wo ul d have, how ever, s t i l l be en f aci ng t he f i rs t de gree murd er charge f o r M r. D eB e rr y’s ki l l i ng, but he ass ert s he was confi d ent at t ri al t hat t he jur y wo ul d not co nvi ct hi m o f a c harge greater than mansl aught er.

-28- of assault and ag g ravated assault are not inc luded in the statutory elements of attempted first deg ree murder) ; see a lso St ate v. Renne Efre n Are llano, N o

. M 2 0 0 2

- 0 0 3 8 0

- CC A

- R3

- CD
, 2003 WL 535927, *2 (Tenn. Crim. App., a t Nashville, Fe b. 26, 2003) (holding t hat plain er ror r equire d reve rsal of the defe ndant’s conviction upon his g uiltyplea to ag g ravated assault bec ause the defe ndant was orig inal l y char g ed with attempted f irst deg ree murder, a nd, under B rown, 2000 WL 262936,
ag g ravated assault is not a lesser included offense of attempted first de g ree murder)
, rev’ d on other
grou nd s State v. Yore cku, 133 S.W.3d 606, 610 (Tenn. 2004).

A p e rs on c omm its a g g ra va te d a ssa ult wh o “ [i]nte nti on a lly or kn ow ing ly c omm its a n a ssa ult

a s d e f i n e d i n § 3 9

- 1 3

- 1 0 1 a n d : ( A ) C a u s e s s e r i o u s b o d i l y i n j u r y t o a n o t h e r ; o r ( B ) U s e s o r d i s p l a ys a dea dly wea pon.” Tenn. Code Ann. § 39-13-102( a) (1997). Tenne ssee Code Annotated section 39- 13-101(a ) (1997) states that a pe rson commits as sault who: “(1) I ntentionally , knowing ly or

re c kle ssl y c a us e s b od ily

inj ury to a no the r; (2) I nten tio na lly or kn ow ing ly

c a us e s a no the r t o

rea sonably

fea r i mminent bodilyinjury ; or (3) Intentionally or knowing ly

cause s phy sical conta ct with another a nd a re asonable person would r eg ard the contac t as extremely o ff en s i ve or provocative.” I n light of Rush a nd Hug hes, we conclude that ag g ravated assault is not a le s s erinc lud e d o ff

e ns e of a tte mpt e d s e c on d de g re e mur de r b e c a us e it r e qu ir e s p ro of of (a ) s e ri ou s b od ily inj ury or (b ) u se or

dis play of a dead ly weapon in c on ne c tio n w ith the a ssa ult , n e ith e r o f w hic h is require d to prove attempted second deg ree murder, and the harm contemplated by the bodily injury element of

ag g ravated assault is not less serious than the ha rm contemplate d by

the attempted killing

e le me n t o f

a tt e mp te d s e c o n d d e g r e e mu r d e r

. Se e Ru s h
, 50 S.W

. 3 d a t 4 3 0

- 3 1 ; H u g h e s , 2 0 0 1 WL 91736, at *14. Acc ording ly , we c onclude that a g g ravated assault is not a lesser included off

ense of attempted sec ond deg ree murder

. There fore , no clea r and une quivocal rule of law ha s been br eac hed, and the tria l court’s fa ilure to instruct on ag g ravated assault is not plain err or. The Def endant is not entitled to relief on this issue.

C. Mot ion f

or Judgm ent of Acquittal

1. Taki ng R ule 29 M ot ion Und e r Adv ise m e nt

The De fenda n t co ntends that the trial court erre d with reg ard to the attempted first deg ree murder c harg e whe n it took his motion, filed pursua nt to Tennessee Rule of Criminal Procedure 29, under a dvisement. The De fenda nt arg ues that, had the motion been decided at the end of the State’s proof, the D efe ndant could have made the decision of whether to te stify knowing that he did not fac e t h i s C l a s s A f

e l o n y. The State counter s that Rule 29 was amende d in 1988, and, in i t s cu rr ent

3 incar nation, it contemplates a tria l court taking a mot ion for judg ment of ac quittal under adviseme nt fol lo w in g th e St a te ’ s e v id e n c e

. T h e St a te a s s e r ts th a t th e D e f e n d a n t w a iv e d th is is s u e b y n ot

re ne wi ng his mot ion a t th e c los e of his c a se . F urthe r, the Sta te a sse rt s th a t a ny e rr or is h arm le ss bey ond a re asonable doubt.-29-

The re cord shows tha t, at the close of the State’s pr oof, the De fenda nt orally moved for a judgme nt of ac quittal, and the trial court stated:

I n this case, there wer e two (2) people who wer e prese nt at the beg inning of the incident or a ltercation . . . . One is the [D] efe ndant and the othe r is dece ased.

We have no indica tion of how this sit uation beg an.

Wit h reg ard to a ssuming pre meditation based on . . . the subse qu en t acts, I thi nk it’ s b e e n p re tty

ro un dly c on de mne d by ou r ap pe lla te c ou rt s. An d n ot o nly that, in this c a se , it ’s pa

rt ic ula rl y ina pp rop ri a te , b e c a us e oth e r tha n d isp os ing of so me evidenc e and so f

orth, the [D] efe ndant, basica lly
, continued to do what he ha d been doing be fore , chang ing a liases and moving around.

The leg al suffic iency

of . . . pre meditation in this is case extremely wea k. And the Court will rese rve r uling on this ca se, pending some rese arc h on this iss ue. Be cause

. . . it’s g oing to be a close call. I
, very likely
, may let the jury decide it and, then, if the . . . jury

comes ba ck with first deg ree murder, I may have to look back a nd

s e e if I h a v e to d r o p th a t d o w n to s e c o n d [d e g r e e mu r d e r ].

Th e tr ia l c ou rt

ne ve r e nte re d a n o rd e r o n th e mot ion fo r j ud g me nt o f ac qu itt a l. Th e De fe nd a nt d id not ag ain re quest a ruling on this mot ion, and he did not re new his motion at the close of trial.

After the t ri al
, an d at the hea

ring on the motion for new tr ial pursuant to Rule 33(f) of the Tenne ssee Rules of Criminal Proce dure, the trial court state d:

[T ]h e M o ti o n f

o r a ju d g me n t o f a c q u it ta l ma d e a t th e e n d o f th e St a te ’s proof w as taken unde r adviseme nt during the lunch hour. It was my inte n t i on to rule af

ter lunch.

I just sim ply

forg ot to rule.

Fa ced w ith this s i t uation . . . I can e ither aba ndon the ruling on the issue or I can r ule on it at this ti me, late.

So . . . the Court chooses to rule on the Motion at this time.

The Court g rants the Motion made a t the close of the State’s proof f or judgme nt of ac quittal as t o attempted first deg ree murder. There is just simplynot time to preme ditate in that situation. . . . there is just no evidence in the Court, in the

rec ord, befor e this Court that would allow a ver dict of attempt to commit first deg ree murder to stand.W e reco gni ze t hat i n Stat e v. Jo hnson, 76 2 S.W

. 2 d 11 0 (T enn. 19 8 8 ), t he T enness ee S up rem e C o urt 4

ad d res ses Stat e v. M at hi s, s t at i ng:

T en n

. R. Cr i m. P. 29( a) c l ea r l y a n d ex pl i ci t l y pr ov i des t h at i f a def en dan t ’ s mot i on f or j u dg men t of acqui t t al at t he cl ose of t he evi dence offere d b y th e St at e i s not gr ant ed, t he def endan t may offer evi dence wi t hout ha vi ng r es er ved t he r i gh t

. Cri mi nal P ro ce d ure R ul e 1 s peci f i cal l y provi des t hat “T hese r ul es govern t he p roce d ure i n al l cri m i nal pro ceed i ngs co nd uct ed i n al l co urt s o f record in T e n n e sse e .” A n y c a se law to the c o n tra ry h a s b e e n sp e c ifi c a lly p re e m p te d b y the ru le s.

I d. a t 115. W h en a ddr es s i n g a pe t i t i on t o r eh ea r by t h e St at e, t h e Cour t s t at ed:

W e do not mean [ by t hi s s t at ement ] t o i mp l y t hat a def endan t do es not wai ve a mot i on for a cqui t t al mad e a t t he end of

t he St at e’ s proof

b y not st andi ng o n hi s m ot i on and procee di ng t o of fer ev i dence

. Se e St at e v

. T h omps on , 549 S. W

. 2d 943, 945 ( T en n

. 1977)

. W e do n ot t h i n k ou r or i g i n al opi n i on rai ses t hat co nno t at i o n.

J o h n so n , 7 6 2 S .W .2 d a t 1 2 1

.

-30-

Th e e vid e nc e is, ho we ve r, su ff ic ie nt t o c on vic t the De fe nd a nt o f atte mpt to commit murder in t he sec ond deg ree . The c onviction is now of the lesser offe nse of attempted sec ond deg ree murder.

The trial court went on to state that, bec ause it dete rmined that the e vidence was leg ally insufficient to support attempt to commit first degr ee mur der, tha t conviction was no longe r bef ore the court on the Rule 33(f) motion for new t rial. The trial court found that attempted sec ond deg ree murder a nd

vo lun tary ma ns laug hte r we re the tw o c on vic tio ns that we re pr op e rl y c on sid e re d p ur su a nt t o th e Rul e 33(f) motion. I t then ruled, a s a thirteenth juror , that the motion for new tr ial should be denied.

Te nn e sse e Rul e of

Cr imi na l Pr oc e du re 29 (a ) p ro vid e s:

The c ourt on motion of a def endant .

. . shall order the entry of judg ment of ac quittal of one or more off enses c harg ed in the indictment or informa tion after the evidenc e on either side is c losed if the evidenc e is insufficient to sustain a conviction of suc h offe nse or of

fense s. I f a defe ndant’s motion for judgme nt of acquittal at the c lose of the evidenc e off

ere d by the [S ]t ate is not g rante d, the defendant may offe r evide nce without having r eser ved the r ight.

The Rul e goes on to state t hat, i f t he mot ion is made at the close of all of the evidence , the trial court may rese rve r uling on the motion, submit the case to the jury
, and decide the motion either befor e

or a f te r th e ju r y r e tu r n s a v e r d ic t. T h e r e is
, h o w e v e r , n o a u th o r it y in p r a c ti c e o r

p r o c e d u r e f

o r the trial judg e to take unde r adviseme nt a motion for j u d gm en t o f ac quittal made at the c lose of the State’s proof, a nd, when the tr ial court doe s so, it constitutes err or. Mathis v. State, 590 S.W .2d 449, 453 (Tenn. 1979). The De fenda nt, however , can w aive this err or under certain circ umstances. I d. 4 When the trial court “overr ules, or does not act, upon a mot ion for ac quittal made at the c onclusion of the State’s pr oof,” the Def endant’ s counsel, if c onvinced of the validity of the motion, must “take-31-

aff irmative ac tion to confine the controve rsy to the proof a lrea dy

prese nted.” I d. The de fenda nt’s

c ou ns e l sh ou ld, a mo ng ot her thing s, a nn ou nc e that th e de fe nd a nt s ta nd s o n h is m oti on a ndwi ll
pr e se nt n o p ro of . I d. I f the de fe nd a nt d oe s n ot d o s o, his a c tio ns wa ive the tr ia l cou rt ’s e rr or . T his Court was aske d, but declined, to over rule Mathis and its prog eny . See S tate v. Walker, 713 S .W.2d 332, 333 (Tenn. Crim. App. 1986)

.

I n the ca se u n d er submissi on, apply ing the afor ementioned law , we c onclude that the Def endant wa ived the trial c ourt’s er ror by prese nting e vidence on his own behalf. T here fore , the trial court c ould not properly rule on the D efe ndant’s motion for judg ment of ac quittal at the motion for ne w trial hea

ring . Our inquiry , howeve r, does not end the re.

Tenne ssee Rule of Criminal Proc edure 29(a) empower s a trial court sua sponte to order the

e ntry of a jud g me nt o f a c qu itt a l a ft e r th e cl os e of the e vid e nc e on e ith e r s ide “ if the e vid e nc e is ins uf fi c ie nt t o s us ta in a

c on vic tio n o f [the c ha

rg e d] of fense .” Te nn . R. Cr im. P. 2 9( a ). Th e Rul e g oes on to allow a trial judg e to re serve decision on a motion for judg ment of ac quittal made at the close o f al l t h e ev i d ence until after the jury returns a verdic t. Tenn. R. Crim. P. 29(b). The issue befor e us bec omes what is the ef fec t of the trial court’s decision, made afte r the j u ry ’s v er d ict of
g uil t, t o g ra nt a

mot ion of

a c qu itt a l th a t w a s ma de by the De fe nd a nt at the c los e of the Sta te ’s c a se but “mistakenly ” not ruled upon. A s previously stated, to take unde r ad v i s em ent a motion for judgme nt of acquittal made by the Def endant at the close of the State’s evidenc e is e rror

. Howeve r, we f ind nothing in Rule 29 that prohibits the t ri al co u rt from sua sponte or dering the entry of judgme nt of ac quittal afte r all the evidence has been presente d from both sides and the jury returns

a ver dict. I t is the dutyof t h e t ri al co u rt to do so if the evidenc e is insufficient to sustain a conviction. We there fore choose to view the trial court’s judgme nt of acquittal as to the cha rg e of attempted first de g ree murder a s a sua sponte or der tha t is withi n t h e au t h o ri ty of the trial c ourt pursuant to Rule 29.

The distinction betwee n a Rule 29 motion and Rule 33(f) motion becomes important to our inquiry . I n State v. Dankworth, 919 S.W.2d 52, 55 (Tenn. Crim. App. 1995), this Court ex plained, “The re a re important distinctions betwee n the setting aside of a v er d i ct under Rule 33(f) a nd a jud g me nt o f a c qu itt a l un de r R ule 29 of the Te nn e sse e Rul e s o f Cr imi na l Pr oc e du re .” I d. a t 56 . T his Court said:

To re so lve a

mot ion fo r a

jud g me nt o f a c qu itt a l un de r Rul e 29
, the tr ia l c ou rt mus t examine the s u f

f ic ie n c y o f th e e v id e n c e

. . . . I f th e tria l ju d g e d e te r mi n e s th a t the

e vid e nc e is i ns uf

fi c ie nt t o s up po rt

a jury ’s g uil ty

ve rd ic t be y on d a

re a so na ble do ub t, a judg ment of acquittal is g rante d. The state may not retry the def endant but has the rig ht of appe al.

I d. a t 56 (c ita tio ns omi tte d) . A mot ion fo r j ud g me nt o f a c qu itt a l pr e se nts a qu e sti on of

la w. Sta te v. Gillon, 15 S.W.3d 492, 496 (Tenn. Crim. App. 1997). The trial judge is c oncerned only with the leg al suffic iency

of the e vidence and not the we ight of the evidenc e. I d.-32-

Co n v e r s e ly
, Ru le 3 3 ( f

) r e q u ir e s th e tria l ju d g e to in d e p e n d e n tl y w e ig h th e e vidence and

a sse ss the wi tne ss’ c re dib ili ty . T he tr ia l ju dg e mus t be pe rs on a lly sat is fi e d w ith the ve rd ic t. Dankworth, 919 S.W .2d at 56. This rule imposes upon the judg e the mandatory duty to serve a s the thi rt e e nth jur or

in e ve ry c ri min a l c a se , a ndapp ro va l by the tr ial jud g e of

the jury ’s ve rd ic t is a

nece ssary prer equisite to the impositi on of a valid judgme nt. State v. Carter , 896 S.W .2d 119, 122 (Tenn. 1995) . I f the trial c ourt disag ree s with the j ury about t he we ight of the evidenc e, the pr oper

re me dy is f or the tr ia l c ou rt

to o rd e r a

ne w t ri a l. G ill on , 1 5 S. W.3 d a t 50 0. Ac c or din g ly , th e Sta te may retry the def endant f or the c harg e.

I n th e c a se un de r s ub mis sio n, we c on c lud e that the tr ia l cou rt didno t e rr

wh e n it su a sp on te de te rm ine d th a t a judg me nt of a c qu itt a l wa s app ro pr ia te a s to atte mpt e d f ir st d e g re e mur de r b e c a us e the evidenc e was insufficient to support the jury ’s finding of pre meditation. By so doing, the trial court pre cluded the State f rom retry ing the Def

endant on the c harg e of attempted first deg ree murder. We d isa g re e that the tr ia l c ou rt ha d no abil ity to g ra nt a su a sp on te mot ion fo r jud g me nt o f a c qu itt a l. Further, we ag ree with the trial court t h at t h e evidence wa s insufficient to support a f inding of
preme ditation. The Def

endant is, there fore , not entitled to relief on this issue.

2. Rule 29 Motion for Atte m pted Second Degre e Murder

The De fenda nt asserts that t he trial c ourt err ed whe n it denied his motion for judgme nt of acquittal for

the cha rg e of attempted second de g ree murder. The De fenda nt impli es that bec ause the trial court g rante d the judg ment of ac quittal as to the conviction of attempted first deg ree murder the trial court ha d no option but to gra nt an ac quittal of all the lesser- included off enses.

Ou r r e vie w o f this iss ue is the sa me a s o ur re vie w o f the iss ue of

wh e the r the evi den c e is sufficie nt to sustain the Defenda nt’s conviction for attempted second de g ree murder. See State v. Price, 46 S.W.3d 785, 818 (Tenn. Crim. Ap p. 2000). As we previously conclude d, the evidenc e prese nted at trial, v i ew ed in the light most favor able to the State, is suffic ient to support the De fe nd a nt’ s c on vic tio n o f atte mpt e d s e c on d d e g re e mur de r. He is, the re fo re , n ot e nti tle d to re le if on this iss ue. D. Rule 33(f) Motion

The Def endant next asserts that the trial court e rre d when it denied his motion filed pursuant to T e nn e sse e Rul e of

Cr imi na l Pr oc e du re 33 (f ). Th e De fe nd a nt c on te nd s th at, if he wai ve d h is motion for judgme nt of ac quit t al by not standing on it or objec ting to it being taken unde r

a dv ise me nt, the n, in the fa c e of e vid e nc e ins uf

fi c ie nt t o s up po rt the jury ’s fi nd ing of a tte mpt e d f ir st deg ree murder, the trial court’ s only rec ourse wa s to order a

new tria l as the thirteenth j u ro r. The Def endant g oes one step f

urther a nd contends that the e vidence is also insu ff i ci en t t o s upport the jury ’s fi nd ing that he a c te d “ kn ow ing ly ,” a nd , th e re fo re, t he tr ia l c ou rt sh ou ld h a ve g ra nte d h is
mot ion for new tr ia l on a c ha rg e no g re a te r tha n a tte mpt e d ma ns laug hte r. B e c a us e we pr e vio us ly conclude d that the Rule 29 motion for judgment of acquittal was proper ly befor e the trial court ba sed upon its own moti on, we now revie w whether t he trial court err ed whe n it denied the De fenda nt’s motion for new tria l.-33-

The trial c ourt g rante d a motion for judgme nt of acquittal as to the conviction of a ttempted first deg ree murder, a nd it allowed a c onviction of attempted sec ond deg ree murder to stand. There fore , the issue prope rly befor e the c ourt was whether a motion for new tria l should have bee n g ra nte d a s to the De fe nd a nt’ s con vic tio n for a tte mpt e d sec on d de g re e mur de r. With re sp e c t to thi s issue, the trial court found:

[T]he c ou rt c on sid e rs the g uil t of the De fe nd a nt on the a tte mpt to c omm it m ur de r i n the sec ond deg ree . And af ter considering the proof, this Court is of the opinion that the De fe nd a nt i s g uil ty of a tte mpt e d se c on d de g re e mur de r a nd is i n a g re e me nt w ith the jury in that reg ard. That verdict will stand.

Ap pe lla te c ou rt s a

re ill -s uit e d to a sse ss w he the r the ve rd ic t is su pp orte d by the we ig ht a ndc re dib ili ty of the e vidence . State v. Moats, 906 S.W .2d 431, 435 (Tenn. 1995) . For that rea son, in Tennessee
, the ac cura cy

of a tria l court’s thirtee nth jur or deter mination is not a subject of a ppellate r eview. I d.; State v. Bur lison, 868 S .W.2d 713, 719 (Tenn. Crim. App. 1993). I nstead, onc e the tria l court
approve s the verdic t as the thirteenth juror
, appellate revie w i s limit ed to deter mining the suff iciency of the evidence

. Bur lison, 868 S.W .2d at 719. I n the case presently befor e us, we have de termined that the evidenc e is suf

ficient to sustain the Def

endant’ s conviction. He is not entitled to relief on this iss ue.

E. P r o Se M ot ion s

The De fenda nt, while repr esente d by counsel on appea l, ha s submitt ed seve ral pro se letters of c or re sp on de nc e to this Cou rt a tte mpt ing to s up ple me nt the reco rd on app e a l a ndto a me ndhis

app e lla te br ie f to a dd a dd iti on a l c la ims

. Ho we ve r, the De fe nd a nt is re pr e se nte d by c ou ns e l, a ndit has long been our

rule that a

Def endant ha s no rig ht to be repr esente d by counsel in this Court and simult aneously

proce ed pro se . See State v. B urkhart, 541 S.W .2d 365, 371 (Tenn. 1976) ; State v. Cole, 629 S.W .2d 915, 917-18 (Tenn. Crim. App. 1981). Furthermore , the subjects of the se motions

are more prope rly

addre ssed by

a post-convic tion petition filed in the trial court. Accor dingly , the Def endant’ s pro se motions are denied, and all improperly submitt ed evidence and t estimony has not been c onsidered by

this Court i n its adjudication of this case.

III. Conclusi on

I n acc ordanc e with t he for eg oing a uthorities and re asoning , we a ffirm the judg ments of the
tr ia l c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE