# FILED
October 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9611-CR-00418 Appellee, ) ) SHELBY COUNTY VS. ) ) ) HON. CHRIS CRA FT, JUDGE WILBERT K. ROGERS ) (A.K.A. PERSON ROGERS), ) (Second degree murder) ) Appellant. )

FOR THE APPELLANT : FOR THE APPEL LEE : A. C. WHARTON, JR. JOHN KNOX WAL KUP Shelby County Public

Defender Attorney General and Repor ter WALKER GWINN (On appeal) SARAH M. BRA NCH TONY N. BRA

YTON (At trial) Assistant Attorney Gener al Assistant Public Defenders 450 James Robertson Parkwa y 201 Poplar Ave. Nashville, TN 37243-0493 Suite 201 Memphis, TN 38103 WILLIAM GIBBONS District Attorney General AMY WEIRICH Assistant District A

ttorney General 201 Poplar Ave. Suite 301 Memphis, Tennessee 38103

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE

OPINION2 Defendant was convicted by a Shelby County jury

of second degree murder and sentenced to thirty-three (33) years as a Range II, Multiple O ffender. Defendant brings one issue for our review : whether the judgment should be modified to c riminal attempt to commit murder because the v ictim’s death did not occur within a year

and
a day of the alleged mortal wound. We find that the Criminal Sentencing Reform Act of 1989 abolished this common law defense and affirm the judgment of the trial court.

FACTS
Although the sufficiency of the evidence i s not at issue, a revie w of the facts is instructive. Lisa Sledge, paramour of the victim, James Bowdery, testified that on May 6, 1994, she had been entertaining the victim dur ing the a fternoon of the incident when the defendant arrived to do his laundry, a standard practice. Sledg e, Bowder y, and the defendant played cards and d rank until abou t 8:00 p.m. Sle dge and Bowdery went to sl eep in the ups tairs bedro

om. Defendant was asleep on the downstairs sofa. At some point before da y break, the defendant came into the bedroom asking where his mone y was, stabbed the v

ictim with a butcher k

nife, and left. Ms. Sledge called 9 -1-1. Dr. Jerry T. Francisco , a pathologist, testified at trial. Although the victim did not die until August 7, 1995, D r. Francisco a ttributed t he cause of death to the wounds sustained on May 7, 1994. His review

of the medical records show ed that Bowdery was stabbed in the heart, which caused the heart to stop. As a result, he developed cerebral hyp oxia. This deprivati on of oxygen to the brain caused him to become comatose. He remained in this vegetative state and developed a kidney infection, which is not unusu al for such patients. He died on August 7, 1995, approximately six

teen (16) months after the defendant had w ounded him. Defendan t presen ted no pr oof.

COMMON LAW DEFENSE3 The sole issue on appeal is w heth er the second degree murder conviction must be modified since the victim did not die within a year and a day of the infliction of the mortal wound. The “ye ar-and-a-da y rul e” was the common law requirement. See Per cer v. State , 118 Tenn. 765, 103 S.W. 780 (1907); Cole v. State , 512 S.W.2d 598 (Te nn. Crim. App. 1974). This Court has considered this question prev iously in State v. Ruane , 912 S.W.2d 766, 774 (Tenn. Crim. App. 1995), and hel d the Criminal Sentencing Reform Act of 1989 abolished common law defenses. A ffirmative defenses are listed by statute, and the “year-and-a-day rule” is not l ist ed among those defenses now available. Id .; Tenn. Code Ann. § 39-11-204. Furthermore, Tenn. Code Ann. § 39- 11-203(e)(2) specif icall y abolishes all common law defenses. We, therefore, conclude the “year-and- a-day rule” defense is no l onger viable in Tennessee. Defendant’s contention that the abolition o f this defense is an ex post facto violation is also without meri t. Tenn. Code Ann. § 39-11-203 went into effect in 1989. The mortal wound was infli cted in 1994.

CONCLUSION
The judgment of the trial court is affirmed in all respect s.

JOE G. RILEY, JUDGE

CONCUR:4

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELL ES, JUDGE