### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 10, 2001 STATE OF TENNESSEE v. DE UNDRICK LAR AN COBLE Direct Appeal from the Circuit Court for Obion County No. 0-187 William B. Acree, Judge

No. W2001-00039-CCA-R3-CD - Filed August 30, 2002

The appella

nt was co nvicted o f agg

ravate d assault and se ntenced to five y ears in the Tennessee Department

of Correction as a standard Range I offender. In this appeal, he raises two issues. F irst, he maintains that a prior

inconsistent statement was improperly use d by the prosecution to impeach the testimony of a prosec ution witness. Second, he claims the prosecutor madeimproper remarks during closing argument. We find neither of these alleged errorsrequires reversal of this case and thus we a ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J ERRY L. S MITH , J., deliv e red the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined.
Steve Conley, (on appea l); Bruce and Steve Conley , Union C ity , Tennessee (at trial), for the appellant, Deundrick La

ran Coble. Paul G. Summers , Attorney Gene ral and Repor

ter; Ang ele M. Gr

egory , Assistan

t Attorne y General ; Thomas A. Thomas, District Attorney Gene ral; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION

As accredited by

the jury’s ver

dict, the proof sho wed that o n March 2 6, 2000, th e victim, Marcus Treadwell, was driving his girlfrie nd’s car down an Obion

County street at

3:00 a.m. A blue car driven by Jeffrey

Ervin pull ed up bes ide Trea dwell. The appellant was a passenger in the blue car. Treadwell and the appe llant had a brief conversation concerning an altercation between Treadw ell and one of the appellant’s cousins. The appellant then pulled out a small caliber pistol and fired tw o or thre e shots at Treadwell. Ervin and the appellant drove away , and Treadwell, who was uninjured, drove home.-2-

Treadwell’s mother convinced him to report the incid ent to the po lice. Office r Mike George investigated the case. Georg e inspected the car Treadwe ll was driving and found two bullet holes in the back seat. George a lso found a bullet fragment near the ca r’s rear windshield and another fragment on the floorboard. George did not find any physical evide

nce at the location of the shoot ing, but he did l ocate tw o witnesse s who had h eard g unfire in the area between 3:00

a.m. and 4:00 a.m. Neither witness called the police. Jeffrey Ervin testified that

he andthe appellant were riding around in the ea rly morning hour s of March 26, 2000. Ervin was driving and the appellant wa s a passenger in t he vehic le. Ervin initially stated that he did not remember if the pair had stopped to talk to Treadwell. He remembered that the police had picked him up about four days afte r the shooting, but he could not remember what he had told the officers. At this point, over the objection of the defense, the prosecution was allowe d to question Ervin with a statement he had given Officer G eorge. Under quest ioni ng abou t the s tatem ent, E rvin a dmit ted te llin g George that he, Ervin, and the appellant pulled up near Treadwell’s car, a nd that the ap pellant a

nd Trea dwell spok

e. He al so admitted telling George that Treadw ell had a gun. He denied telling Georg e that the appellant had fired one round at Treadwell in self-def ense. The prosec ution r ecalled Officer Georg e to the stand and he recounted Ervin’s origina l statemen t to police as follow s: “He told me

he had been out driving around town on the northeast side of Union City withDeundrick Coble, that he, Jeff Ervin, was driving the car, Deundrick Coble was a passe nger in the car . As th ey neared t he int ersect ion o f Mart in Luth er Kin g a n d Taylor, there was a red

car in f ront of them. This red car pulled over to the curb. He stated that he pulled up next to the red car. The red car was oc cupied by a Ma rcus Treadwell. He stated that he, Jeff Ervin, being the driver of the blue car , could see Marcus Treadwell cocking a wea pon . . . He said at that point in time, he did not see the gun , but he knew he ha d one and he was c ocking

it.
He said, “D eundrick Coble ca me up with

a handgu

n.” He de scribed

it as a sma

ll handgun. He fired one round towards Marcus Treadwell. That he, Jeff, Ervin - the car was running - and he, Jeff Ervin, simply drove off towards Main Street.”
At the request of

the State, the jury was instructed to consider Ervin’s pre-trial statement only for the pu rp os e o f a ss es si ng hi s c re di bi li ty. The appella

nt test ified on his own behalf. He testified that he did see the victim on the morning of March 26, 2000, but did not fire shots at Treadwell. He testified that he and Ervin did notflash the

ir car li ghts at t

he victim, but that the

two carsdid pull u

p beside each other. The appellant stated that the conversation ended when Treadwell reached ove r in his passenger seat and-3-

puta pistol up on the armrest. The appellant testified that he and Ervin immediately drove off and went home. Impeac hment W ith Prio r Inconsist

ent State ment
In his first issue, the appellant claims tha t the trial cou rt erre d in allowing the Sta te to impeach its own wit

ness, Jeff rey Ervin, with his prior

inconsiste

nt stateme

nt. We res pectfully disagree.
Tennessee Ruleof Evidence 607 permits the credibility of a witness to be impeached by any pa rt y, including the party

who called the witness. Howeve r, a par ty ma y not call a w itness to

testify solely as a ruse for the purpose of impeaching that witness with a prior inconsistent statement that would be inadmissible as substantiative evidence. Statev. Jones , 15 S.W.3d 880 (Tenn. Crim. App. 1999).
In State v. Jones , this Court held that the Sta

te could impeach its own witness with a prior inconsistents tatem ent wher e no proo f existed th at the Sta te had ca lled the w itness as a

pretext in order to introduce her prior statement. Id. at 892. In that case, the wi tness had gi ven a statement prior to trial that the defendant had said to get ri d of a gun becaus e, “it could be caught up in a murder.” Id. at

885. The State, expecting the witne ss to repe at her pr ior state ment, wasallowed t

o introduce the witness’ prior statement after the witne ss t estified that, “the gun could be caug ht up i n something.” Id. After introduction of the prior statement, the defendant testified that he r tri a l testimony was acc

urate, rather than her pre-tria l statement. Id. This Court affirmed the trial court’s decision to allow questioning regardingthe witness’ pretrial statemen

t becaus e: (1) the

witness’ trial testimony

was inco nsistent w ith her pr e-trial statemen t, (2) defense

counsel had failed to notify the State that the witness had repudiated the accuracy of her pre-trial statement, and (3) there was no proof that the prosecutor called the witness as a pretext or ruse to introduce her prior statement. Id. at 892. Turning to the fa

cts of the instant

case, it appears that Ervin first told police that the appellant had fired a

small cal iber handgun at

Treadw ell, but that the sh ooting was in self-defense. At the preliminary

hearing in this case, Ervin testified that he could reme mber only his name, that

he had spoken with Officer George, a nd that he had never told George he had seen the appellant with a gun.
At the hear ing on the

mo tion for a new tria

l, the pro secutor

explained

that in the

interim betweenthe preliminary he aring and the trial, and following discussions involving his parents and the prose cutor, Er

vin indica ted that a t trial he would test

ify truthfull y, i .e., in ac cordanc e wit

h hi s sta tement given to Officer Georg e. Thus, there is no evidence in this record that the prosec u tio n calledErvin knowing he would repudiate his pre-trial statement to police. Indeed, it appear s that the prosecu tio n was misled by Ervin into believing that at trial, Ervin would affirm his pre-tri a l1 Th is case is fa ctu all y di st in gui sha ble fr om M ays v. Sta te , 495 S.W .2d 833 (T enn. Crim. App. 1972), cit ed by

the appellant. In M ays , the pro secutio n knew the witne sses had repu diated their pre -trial stateme nts and knew they wo uld con tinue to d o so w hen ca lled to th e stand at trial. -4- statemen t. 1 Under the circumstance s, there

is nothing

in the re cord of t

his case to indicate

that Ervi n was called to

the stand as a mer e ru se t o ge t h is pre -tr ial st ate men t i nt o ev id enc e. It was, therefore, proper under the circumstances to permit the prosecution t o impeach Er vin with his pre-trial statement to police.
CLOSING ARGUMENT During closing arguments, the defense pointed out to the jury that the victim

in this case, Mr. Treadw ell, had showed little interest in prosecuting the case. Counsel noted that Treadwell had been cajoledinto reporting the case by his g irlfriend and mother, and that he was not even prese ntin the courtroom

to see the outco me of the procee dings. Pr

esumably , this was an attempt to persuade the ju ry t ha t i f t he al le ge d v ic ti m h ad no in te re st in co nv ic ti ng th e a pp el la nt , n ei th er sh ou ld th e j ur y. In response to this line of arg ument, the prosecutor during his final argume nt stated: “If you believe be

yond a rea sonable doubt that Deundrick

Coble fired these shots at Marcus Treadwell and y ou decide to just let it go because Mr. Treadwe

ll is not here, then you’re

notfulfilling your oa

th, and you’re

putting Lavell Sanders, y

ou’re putting Clarence Davis , and you’ re put ting e verybo dy else that lives in that community at risk . . .
You’re putting every

body at risk, because y ou’re sending the message out there that it’s okay to shoot at people, that if the person being shot at really doesn’t get that upset about it, we’re not going to ge t upset about it . . . What messa ge are you g oing to send to him

[the victim]? “I’ll take care of it my self. Get me a gun and I ’ll shoot Deundrick Coble.” Objections to these remarks were overruled by the t rial cou

rt. The a ppellant complain s that thes e comments by t

he prose cutor we

re improp er beca

use they are irr ele vant to th e question of guilt or innocence, but are rather an a ppeal to the jury to deliver a verdict that will generally deter crime.
A prosecutor should avoid appealingto the jury to concer n itself with general deterrence of crime in the community. Statev. Bigbee , 885 S.W.2d 7 97, 809 (Tenn. 1994 ); State v. Henley , 774 S.W.2d 908, 913 (Tenn. 1989). Nevertheless, we are convinced that these remarks did not affect the j ury’s verdict. The comments are a direct re sponse to the defense’s argument conc er nin g Treadwell’s lack of i nterest in the cas e, and the y do not appea

r to be a p

roduct of an improper attempt to improperly influence

the jury. Moreove

r, the State’s case

agains t the appe

llant wasfairly stron g, and there does not appear to be any other errors in the record

that exacerbate the effect of the remarks. Finally , although tried for attempted first degree murder , the appellant was convicted of the lesser offense of aggr avated assault. Under the circumstances, we are of the opinion that

th e-5-

prosecutor’s comments did not affect the verdict to the prejudice of the a ppellant, and therefore, no reversal is required. See State v. Cauthern , 967 S.W.2d 726, 738 (Tenn. 1998).

CONCLUSIO N In light of the fore going, the judgment of the trial court is AF FIRMED.

___________________________________ JERRY L. SMITH, JUDGE