FILED

October 17, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, ) 

) NO. 02C01-9611-CR-00418

Appellee, )

) SHELBY COUNTY

VS. )

)

) HON. CHRIS CRAFT, JUDGE

WILBERT K. ROGERS )

(A.K.A. PERSON ROGERS), ) (Second degree murder)

)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

A. C. WHARTON, JR. JOHN KNOX WALKUP 

Shelby County Public Defender Attorney General and Reporter

 

WALKER GWINN (On appeal) SARAH M. BRANCH

TONY N. BRAYTON (At trial) Assistant Attorney General

Assistant Public Defenders 450 James Robertson Parkway

201 Poplar Ave. Nashville, TN 37243-0493

Suite 201

Memphis, TN 38103 WILLIAM GIBBONS

District Attorney General

AMY WEIRICH

Assistant District Attorney General

 201 Poplar Ave.

Suite 301

Memphis, Tennessee 38103

 

OPINION FILED: 

AFFIRMED 

JOE G. RILEY,

JUDGE

OPINION
2

Defendant was convicted by a Shelby County jury of second degree murder

and sentenced to thirty-three (33) years as a Range II, Multiple Offender. Defendant

brings one issue for our review: whether the judgment should be modified to criminal

attempt to commit murder because the victim’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 is not at issue, a review 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 during the afternoon of the

incident when the defendant arrived to do his laundry, a standard practice. Sledge,

Bowdery, and the defendant played cards and drank until about 8:00 p.m. Sledge

and Bowdery went to sleep in the upstairs bedroom. Defendant was asleep on the

downstairs sofa. At some point before daybreak, the defendant came into the

bedroom asking where his money was, stabbed the victim with a butcher knife, 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, Dr. Francisco attributed the cause of death to the

wounds sustained on May 7, 1994. His review of the medical records showed that

Bowdery was stabbed in the heart, which caused the heart to stop. As a result, he

developed cerebral hypoxia. This deprivation of oxygen to the brain caused him to

become comatose. He remained in this vegetative state and developed a kidney

infection, which is not unusual for such patients. He died on August 7, 1995,

approximately sixteen (16) months after the defendant had wounded him. 

Defendant presented no proof.

COMMON LAW DEFENSE
3

The sole issue on appeal is whether 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 “year-and-a-day rule” was the common law

requirement. See Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907); Cole v.

State, 512 S.W.2d 598 (Tenn. Crim. App. 1974).

This Court has considered this question previously in State v. Ruane, 912

S.W.2d 766, 774 (Tenn. Crim. App. 1995), and held the Criminal Sentencing Reform

Act of 1989 abolished common law defenses. Affirmative defenses are listed by

statute, and the “year-and-a-day rule” is not listed among those defenses now

available. Id.; Tenn. Code Ann. § 39-11-204. Furthermore, Tenn. Code Ann. § 39-

11-203(e)(2) specifically abolishes all common law defenses. We, therefore,

conclude the “year-and-a-day rule” defense is no longer viable in Tennessee.

Defendant’s contention that the abolition of this defense is an ex post facto

violation is also without merit. Tenn. Code Ann. § 39-11-203 went into effect in 1989.

The mortal wound was inflicted in 1994.

CONCLUSION

The judgment of the trial court is affirmed in all respects.

 

JOE G. RILEY, JUDGE

CONCUR:
4

 

JOE B. JONES, PRESIDING JUDGE

 

DAVID H. WELLES, JUDGE