### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jul y 20, 200 5

STA TE OF TEN NES SEE v. JOSEP H GU NTE R

Direc t Appeal from the Cr im inal Cou rt for F entre ss County

No. 8140 E. Sh ayne Sexton, Jud ge

No. M2004- 01519-CCA -R3-C D - F iled October 19, 2005

The defenda nt, J oseph Gunter, was convicted by a Fentre ss County jury of first deg ree felony murder and espe cially

ag g ravated robbe ry , a Class A fe lony
, and was sentenc ed to concurre nt terms of life wi tho ut p aro le a nd tw e nty y e ars , re sp e c tiv e ly

. On app e a l, he c on te nd s tha t the jury wa s e xpos e d to extraneous pre

judicial information about his case ; the t rial court err ed in various of its evidentiary

ru lin g s a ndma de imp ro pe r c omm e nta ry on the e vid e nc e ; th e Sta te de pr ive d h im of pote nti a lly exculpatory

evidenc e by

failing to perform scientific testin g o n p hy sical evide nce r ecove red f rom the cr ime scene and by

withholding new evidenc e discove red a fter the trial; and the c umulative eff ect of the various err ors re sulted in the denial of his rig ht to a fair trial. The State a rg ues, int e r a lia , that th e d e f e n d a n t’s app e a l s h o u ldb e d is mi s s e d b e c a u s e h is mo ti o n f o r a n e w tria l w a s u n ti me ly

. We

a g re e wi th the Sta te , a nd , a c c or din g ly , d ism iss the app e a l.

Tenn. R. App . P . 3 Appeal as of Right; Appeal Dism issed

A L AN E. G L EN N , J ., delivere d the opinion of the court, i n wh i ch J OHN E VE R E TT W I L L I AMS and R OB E R T W. W EDEMEYER , J J ., joined.

Martha J. Yoakum, District Public D efe nder, and L eif E. J eff ers, Assistant Public Def

ender , for the appellant, Joseph Gunter.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Pr e sto n Shi pp , As sis ta nt At torne yGen era l; Wil liam Paul Phi llips, District Attorney Gene ral; J ohn W. Galloway , J r., De puty District Attorney Gene ral; an d S ar ah H. W est Davis, Assistant District Attorney Gene ral, for

the appe llee, State of Tenne ssee.

OP IN ION

F AC TS

This case involves the bludg eoning death of the defe ndant’s mother, Wanda Gunte r, in her Jame sto wn ho me . O n Su nd a y mornin g , F e br

ua ry 4, 20 01 , s e vera l of th e vic tim ’s re la tiv e s,-2-

c on c e rn e d b e c a us e the y

ha d b e e n u na

ble to r e a c h th e vic tim

a ll w e e ke nd , w e nt t o h e r apa rt me nt t o chec k on her. When the apartment manag er let them inside, one of them found the vic tim ly ing f ace down in a pool of b l o o d o n t h e fl oor of he r bedr oom with a bloody hammer be side her. T he subsequent autopsy reve aled she had died of bl unt head trauma, with at l east four separ ate injuries to her he ad caused by an object simil ar to a hammer. Although a num ber of empty jewelry box es

wer e scattered throug hout the room and it appe are d as if the victim’s pur se had be en emptied, the victim’s apartment was locke d when he r fa milyarrived.

Meanwhile, on the previous da y , the twenty -one- y ear -old defe ndant, who had be en living with the victim, had arouse d the suspicions of a Sevier ville pawn shop owne r by his repeated trips into the store to pawn jew elry . When Sevierville police off icer s responde d to the scene , they found the def endant in anothe r paw n shop near by while his g irlfriend a nd her c hildren waited in the victim’s vehicle pa

rked outside. Initiallyarr ested on a n o u ts ta n d in g c o mm

u n it y corr ections violation

war rant, the de fenda nt was questioned the ne x t day about the murder a nd g ave a n initial st atement in w hic h h e c la ime d th e vic tim hadpla nn e d to sp e ndthe we e ke ndwi th h is o lde r b ro the r a ndhis

c hil dr e n a ndha d g ive n him p e rm iss ion to b or ro w h e r v e hic le wh ile sh e wa s a wa y . I n th a t st a te me nt, the def endant sa id that the pawne d jewelry was part of a collection he had been ac cumulating over the pre vious two or three y ear s. Howeve r, whe n later informed that the victim had bee n found dea d in her apartment w ith some of her jewelry missing, the def

endant a dmitted he had stolen some of he r jewelry and said that she had be en with a man she had just met from Alcoholics Anonymous when h e l as ts aw h ero n Fr i d aym o rn i n g.

L ater that day , the de fe n d an t , who had be en told only that the victim had died of he ad injuries, g ave another statement in w hich he confe ssed that he had hit the victim onc e in t h e b ack of the he ad with a ha mmer. He insi sted, howeve r, t hat t he victim was already g rievously

wounded from self- inflicted hammer wounds at the time and implied that the blow he delivere d was intende d to end her suffe ring

. Acc ording to the defendant, the victim had canc er, w as taking a medication that

cause d her to ha llucinate, and had be en ac ting stra ng ely all wee k. His statement re ads in pertinent
pa rt :

Whil e in the living r oom, I head a pop coming from the be droom. Whil e I was g oing toward the bedroom wher e mom wa s supose [si c] to be sleeping , I hear d another

pop and mom try ing to sa y

something. As I enter ed the bedroom, I seen [sic] mom falling toward he r rig ht hand side. Mom fell i nto the dresse r . . . . I seen [sic] mom bleeding from the ba ck of he r hea d toward the left si de. She was holdi ng the hammer in her left hand. When she f

ell, she fe ll face down. . . . Afte r she f ell, mom was g asping fo r a ir . M om w a s p oo pin g on he rs e lf a nd fa rt ing . Mom w a s sh a kin g . Sh e ha d a ho ld [si c] of the hammer

still try ing to hit her sel f. I fell bac k into the wall betwee n the closet door a nd bedroom door wher e I had lef t the hammer. I

reme mber just seeing flashes. I ’m not sure if I passed out or not. I g rabbe d the hammer f rom mom’s hand. I had to pry

her f our fing ers f

rom around the hammer. A fter I g ot it loose from her ha nd , mo m w a s st ill mov ing he r h and a t he r h e a d li ke sh e wa s still tr y ing to h it herse lf. I took the hammer and hit mom in the back of t he head one time. Mom was-3-

sti ll t rying to g a sp fo r a ir . I

c a nn ot r e me mbe r i f I tos se d the ha mme r or wh a t, b ut I don’t reme mber c oming out of the b edroom with it. I stood there f

or a minute. I thought I would call my brothers and tell them what had ha ppened but I

thought they wouldn’t believe me. I hit mom once because she was gurg ling and twitching. H er head w as pouring b l o o d s o bad. I thought I neede d to ge t away . I

decide d to take

mom ’s c ar, wh ic h s he ha d p re vio us ly g ive n me the ke y s to bo rr ow

. Whe n I g ot i nto the ca r, the g as hand w as almost on “E” for empty

. I went bac k inside the apa

rtment and looked in mom’s purse for money

. I had g otten the purse f rom beside he r bed. I t f e ll o ff the be d aft er I was loo kin g thr ou g h it fo r s omemon e y . I

ha d p re vio us ly
g ive n $ 60 0. 00 (f

ive $1 00 bil ls a nd fi ve $2 0 b ill s) to h e r. I did n’ t f inda ny mon e y in her pur se. I nstead, I

took some jewer ly [si c] f rom mom’s je wer ly [si c] c ase on her dresse r.

Th e de fe nd a nt s ta te d he ha d sto pp e d a t se ve ra l pa wn sh op s to pa wn so me of the je we lr y in o rd e r t o obtain expense money

for a wee kend trip to Pige on For g e with his g irlfriend a nd her c hildren.

At trial, the def

endant a cknowledg ed he had signe d the statement but claimed tha t the words had bee n supplied and written by the Tenne ssee Bu re au of I nvestig ation (“TB I ”) a g ent who conducte d the interview . The de fenda nt testified, instead, t h at h e h ad re turned to the victim’s
apartment a fter a brief absenc e on Friday morning to f ind he r “twitching and quivering ” as she lay dy ing on he r b e dr oo m f

loo r. He c on c e de d h e mig ht h a ve pu sh e d th e ha mme r t o th e sid e a s h e kn e lt beside the vic tim but he insi sted that he ha d never hit her with the hammer . The de fenda nt expl ained that he had taken the victim’s jewe lry and fle d beca

use he f ear ed that he w ould be blamed f or her murder.

I n a n e ff ort to bo lst e r the de fe nd a nt’ s te sti mon y a ndto c re a te re a so na

ble do ub t a

bo ut h is g uil t for the mur der, de fense counsel a ttempt ed t o show that the mana g er of the victim’s apartment complex, who had since been i ndicted for the m urder of anothe r re sident, was the r eal c ulprit in the crime. To that end, he e licited testimo n y fr o m v arious witnesses, including the de fenda nt, about
arg uments the victim had bee n having with the apartment ma nag er over the repa ir of her apartment’s heat pump and the petition that t he victim had cir culated shortly befor e her

death a sking tha t the
manag er be repla ced. N otwithstanding de fense counsel’s e fforts, the jury convicted the defe ndant of both e specia lly ag g rava ted robbery and fe lony

murder. T he trial c ourt enter ed the judg ments on Marc h 14, 2002, and on May 21, 2004, overr uled the def

endant’ s motion for a new trial. On June 21 , 2 00 4, the de fe nd a nt f

ile d a no tic e of app e a l to thi s c ou rt

.

AN AL YSI S

The de fenda nt raises a

number of issue s o n ap p eal. The State arg ues, howe ver, tha t the defe ndant has wa ived the rig ht to an appea l by his f ailure to timely

file a w ritten motion for a ne w trial. We ag ree

.-4-

Tenne ssee Rule of Criminal Proce dure 33( b) provides that “[a] motion for new trial shall be made in wr iting, or if made orally in open court shall be reduc ed to writing , within thirtyday s of the da te the or de r o f s e nte nc e is en te re d. Th e Cou rt sh a ll u po n mo tio n a llo w a me nd me nts lib e ra lly un til the da y of the he ari ng of

the mot ion fo r a ne w tri a l.” B e c a us e the pr ov isi on is m a nd a tory , th e tim e fo r f ili ng a mot ion for new tr ial ma y no t be e xten de d. Se e Te nn . R. Cr im. P. 4 5( b) (s pe c if ic a lly

e xclu din g tim e fo r f

ili ng of a mot ion fo r a ne w tr ia l fr om tho se tim e pe ri od s wh ic h c ou rt ma y , in its discretion, extend); see a lso St ate v. Ma rtin, 940 S.W .2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W .2d 778, 780 (Tenn. Crim. App. 1989). The thirty -day provision is jurisdi ctional, making the trial court’s err oneous consider ation of an untimely filed motion a nullityand p re v en t i n g the defe ndant from raising on appea l any issues which shoul d have been r aised in the motion for a new trial. Martin, 940 S.W.2d at 569; Dodson, 780 S .W.2d at 780. Unlike the u n t i m el y fi ling of the notice of appea l, this court does not ha ve the authority to waive the untimely

filing of a motion for new tria l. State v. Givhan, 616 S.W .2d 612, 613 (Tenn. Crim. App. 1980) ; see a lso Tenn. R. App. P. 4(a).

Def

ense c ounsel made a n oral motion for a new trial on Marc h 14, 2002, at the conc lusion of the defenda nt’s sentenc ing hearing. He did not, howeve r, file the writt en mot ion until more than six months later, on September 24, 20 0 2

. The de fenda nt’s motion for a new trial was, ther efor e, untimely

. As su c h, a ll i ssu e s a re wa ive d e xce pt s uf

fi c ie nc y of the e vid e nc e a ndse nte nc ing , s e e Sta te

v. B oxle y , 7 6 S. W.3 d 3 81 , 3 90 (T e nn . Crim. Ap p. 20 01 ), ne ith e r o f w hic h is ra ise d o n a pp e a l. Moreove r, we decline pla in error revie w of the issues the de fenda nt raises in his brief be cause none rise to the leve l of aff

ecting a s u b s t an t ial rig ht which would nec essitate re view in orde r to do substantial justi ce. See Tenn. R. Crim. P. 52(b).

CO NC LU SION

We c on c lud e that th e de fe nd a nt h a s w a ive d h is rig ht to dir e c t app e a l by his fa ilu re to t ime ly file his written motion for a ne w trial. Ac cording ly , we dismiss the appea l.

___________________________________ ALAN E. GL

ENN, JUDGE