Roscoe L. Graham and Kendrick Cavil appealed their convictions from a Shelby County jury trial. Cavil was convicted of attempt to commit second degree murder and sentenced to nine years in custody, while Graham was convicted of attempt to commit voluntary manslaughter, receiving a three-year workhouse sentence and probation. The court addressed several issues raised by the defendants, including the sufficiency of evidence, the admissibility of testimony and photographs, limitations on cross-examination, jury instructions on burden of proof, and sentencing concerns. The court affirmed the trial court's judgments. The case involved an incident on April 14, 1994, where both defendants attacked the victim, Darrel Wayne Franklin, with multiple blows, leading to his unconsciousness and injury, as testified by George Petties, a witness to the assault.
Petties testified he witnessed Cavil stomping on Franklin's head while Graham stood nearby with a pistol at his waist. After the assault, Cavil and Graham left in their car, abandoning an unconscious and bleeding Franklin. K.C. Parks, a visitor, described how Cavil hit Franklin, Graham punched him, and Cavil hit Franklin again, leading to Franklin's fall. Graham then kicked Franklin while Cavil jumped on his face, despite Parks urging them to stop. The victim, Franklin, recalled being struck by Cavil and Graham before losing consciousness and waking up in the hospital after 35 days, unable to remember the incident. His mother, Kay Monger, recounted seeing her son receive treatment and described his prolonged coma and subsequent rehabilitation, noting significant changes in his abilities and loss of his job as a mechanic.
Defendant Graham claimed he arrived at his uncle's house, went inside briefly, and when exiting, saw Cavil being attacked by Petties and Franklin, asserting he intervened to help Cavil. He denied having his gun on that day. Cavil testified he was approached and attacked by Petties and Franklin, asserting he fought back in response to being assaulted before Graham came to assist him.
In the sufficiency of evidence section, Cavil argued that the evidence did not support his conviction for attempted second-degree murder, suggesting he was provoked into a state of passion that warranted voluntary manslaughter instead, and claimed that Graham's conviction for the same offense precluded a greater charge against him. The state countered that the evidence was adequate, and the court concurred.
Defendant Graham argues that the evidence is insufficient to support his conviction for attempt to commit voluntary manslaughter, claiming a lack of provocation, passion, and intent to kill. He asserts that the evidence demonstrates he was calm and attempted to prevent harm to the victim. In contrast, the state argues that mutual combat can be considered provocation, and Graham's testimony indicates both provocation and passion, supporting his conviction for attempt to commit voluntary manslaughter or even a higher degree of murder. The standard of review requires that evidence be viewed favorably to the prosecution, allowing for conflicts to be resolved in the state's favor.
Defendant Cavil was found guilty of attempt to commit second-degree murder, which necessitates acting with awareness of the conduct's nature and the certainty of causing death. Cavil's actions, including beating the victim into unconsciousness and jumping on his head multiple times, demonstrate a knowing attempt to kill, supported by the severe injuries inflicted on the victim, who remained in a coma for 16 days. Cavil contends he should not face a greater charge than Graham, but the evidence indicates his conduct was more violent, justifying a conviction for attempt to commit second-degree murder. The verdicts for Graham and Cavil need not be consistent as long as the evidence supports the individual verdicts.
In State v. Gennoe, 851 S.W.2d 833 (Tenn. Crim. App. 1992), the defendants were involved in an attempt to sexually assault a college student. One defendant argued that his conviction for facilitation of sexual battery was inconsistent with his co-defendant's conviction. The court ruled that inconsistent jury verdicts do not invalidate a conviction, citing previous cases. Additionally, Defendant Graham was convicted of attempted voluntary manslaughter, which requires acting with the intention or knowledge to kill in a state of passion due to adequate provocation. Evidence indicated that Graham participated in the assault by striking and kicking the victim after provocation from his co-defendant. The court found sufficient evidence to support Graham's conviction for attempted voluntary manslaughter, as he acted irrationally in response to witnessing a fight.
Both defendants challenged the admissibility of the victim's mother's testimony about her son's condition, arguing she lacked expertise, and claimed the testimony was irrelevant and prejudicial. The court determined that the mother's observations were admissible as they were relevant to establishing intent and not unfairly prejudicial.
Defendants sought to exclude the victim's mother from testifying about her son's medical condition, arguing that her testimony lacked a causal connection to the beating without expert evidence, making it prejudicial and irrelevant to the offenses. The trial court ruled that the mother's testimony was relevant to establish the defendants' intent to commit an intentional and deliberate killing, as the victim's condition illustrated the severity of the beating. The court determined that the jury could decide if the beating caused the victim's changes, allowing the mother to testify about her observations but not to make medical diagnoses or provide speculative opinions. During her testimony, the mother noted significant changes in her son's physical and mental capabilities since the incident, stating he no longer walked or talked as he did before and struggled with tasks like mechanic work. The defendants argued that her opinions were beyond her qualifications. The rules governing lay witness testimony in Tennessee (Tenn. R. Evid. 701) dictate that such testimony must be based on the witness's perceptions and contribute to understanding the case. Relevant case law emphasizes that non-expert witnesses should stick to factual narrations rather than personal opinions, although there are exceptions to this rule.
Non-expert opinion testimony is admissible when it describes observable facts that are difficult to convey adequately to the jury, provided the conclusions drawn are simple and based on common experience. The court deemed that the officer's testimony regarding the defendant's admission of wrongdoing was harmless, even if it were considered inadmissible. The victim's mother's observations about her son's changed mental and physical abilities, based on her close contact with him, were found to be within the realm of common experience and appropriate as opinion testimony under Tenn. R. Evid. 701.
While expert testimony is typically required to establish causation of injuries, it is not always necessary if there is sufficient evidence connecting the injuries to the defendant's actions. The jury could rationally conclude that the victim’s post-beating problems were caused by the beating itself. The severity of the assault was relevant to the state’s claim of an intentional or knowing killing, and evidence of the victim's condition was deemed not prejudicial.
Regarding the admissibility of photographs, the defendants argued that mug shots were unfairly prejudicial. The state countered that the photographs were necessary to establish the defendants' identities and that any prejudicial effect did not outweigh their probative value. The photographs were part of a lineup where identifying information was obscured after the objection. The trial court's discretion in admitting photographs is generally upheld unless there is clear abuse, as established in various precedents.
Photographs presented at trial must be relevant to an issue and their probative value must not be substantially outweighed by the risk of unfair prejudice, as per Tenn. R. Evid. 403. The state carries the burden to prove beyond a reasonable doubt that the accused committed the offense, and the identity of the accused is a factual question for the jury to determine based on competent evidence. In this case, witnesses recognized the accused, Cavil, only as "Cap," making the photographs relevant for pretrial identification. Despite the photographs being poorly masked as police mug shots, the court found their probative value regarding identification outweighed any prejudicial effect.
Furthermore, the defendants argued that they should have been allowed to cross-examine witness George Petties about his seating position in the police car during questioning. The state objected, claiming it was irrelevant. The trial court supported this view, determining that the defense's inference from Petties' seating was tenuous. The admissibility of evidence lies within the trial court's discretion and is upheld on appeal unless there is an abuse of that discretion. Relevant evidence must make a consequential fact more or less probable, as defined by Tenn. R. Evid. 401 and 402.
Evidence is deemed relevant if it aids the jury in resolving factual issues. The defendants attempted to challenge a witness's credibility by suggesting the witness was a suspect with a motive to accuse them, relying solely on the fact that the witness was transported in a police vehicle. The court found this inference to lack probative value and upheld limitations on questioning.
Regarding K.C. Parks' prior misdemeanor conviction for criminal attempt, the defendants argued that it should be admissible for impeachment due to its moral turpitude and their Sixth Amendment right to cross-examine witnesses. The state countered that the conviction did not qualify under Tenn. R. Evid. 609(a)(2) since the defendants failed to demonstrate it involved dishonesty. During cross-examination, the defense presented documentation of Parks’ conviction but lacked clarity about the specific crime attempted. The trial court ruled that the conviction could not be used for impeachment due to insufficient evidence of its nature.
The defendants did not provide the necessary documentation for review, leading the court to presume the trial court's ruling was correct. Nonetheless, the court acknowledged the importance of cross-examination as a means to assess witness credibility and truthfulness. Ultimately, the court reviewed the defendants' claims while noting the constitutional right to confront witnesses remains significant.
A trial judge has broad discretion to limit cross-examination to prevent repetitive and harassing questioning. Cross-examiners are permitted to challenge a witness's story to assess their perception and memory, including the ability to impeach the witness by introducing evidence of prior criminal convictions. Such evidence aims to suggest that a witness may be less credible than an average trustworthy citizen. In Davis v. Alaska, it was established that introducing a prior conviction serves as a general attack on credibility. However, a defendant’s confrontation rights do not prevent the trial court from imposing limits to mitigate harassment, prejudice, confusion, or safety concerns.
In this case, the trial court ruled a witness's misdemeanor conviction inadmissible due to insufficient evidence regarding the underlying offense, which did not clearly demonstrate dishonesty. As a result, the court determined that the conviction did not meet the criteria under Rule 609 for admissibility.
Regarding jury instructions, both defendants argued the trial court failed to instruct the jury that the state must prove their guilt to a moral certainty. The court provided a reasonable doubt instruction emphasizing that guilt must be proven beyond a reasonable doubt but not beyond all possible doubt. The defendants did not object to this instruction during the trial, although they raised it in a motion for a new trial. The state argued that this issue warranted plain error review due to the lack of objection at trial but acknowledged that the issue was properly preserved for appeal through the motion for a new trial, as per Rule 30(b) of the Tennessee Rules of Criminal Procedure. The court indicated that similar reasonable doubt instructions had been previously examined.
The court affirmed that the jury instructions provided were constitutionally adequate, referencing prior cases where similar instructions were deemed sufficient. The defendants claimed that assault and aggravated assault were lesser included offenses of attempted first-degree murder, but the court disagreed, citing State v. Trusty, which established that neither offense qualifies as lesser included under the circumstances. The court noted that the evidence supported a conviction for attempted second-degree murder, thus upholding the defendants' due process rights.
Additionally, the defendants argued that the trial court erred by not informing the jury of the complete range of punishments for the offenses charged, specifically regarding Range II penalties. The court concluded that the trial court acted correctly by only charging the applicable Range I penalties, as the defendants were sentenced within that range. This position aligns with prior rulings, including State v. Lawson and State v. Robinson, which clarified that the trial court is not obligated to provide the complete range of punishment if it exceeds what could be applied based on the case specifics.
In the absence of state notice, the trial court is restricted to Range I sentencing according to T.C.A. 40-35-210. The trial court provided the jury with instructions on the appropriate Range I sentences, and it was determined that these instructions did not constitute prejudicial error.
Defendant Cavil argues that his sentence is excessive and that the trial court improperly assessed enhancement and mitigating factors. He disputes the application of enhancement factor (2), claiming there was no factual basis for labeling him as the leader in the offense, and the application of enhancement factor (6) is contested on the grounds that the victim was discharged in good condition from the hospital. Additionally, Cavil asserts that the court should have recognized mitigating factor (2) regarding strong provocation due to evidence of provocation.
The state maintains that the trial court correctly applied the enhancement and mitigating factors. Appellate review of the sentencing is conducted de novo, presuming the trial court's decisions to be correct, as outlined in T.C.A. 40-35-401(d). The defendant bears the burden of proving the sentence's impropriety. If the trial court adhered to statutory procedures, made factually supported findings, and appropriately weighed relevant factors, the sentence remains undisturbed even if a different outcome is preferred.
For meaningful appellate review, the trial court must document its reasoning for the final sentencing decision, identify the mitigating and enhancement factors, and provide specific facts supporting each enhancement factor. The review involves considering evidence presented at trial and sentencing, the presentence report, sentencing principles, the nature of the criminal conduct, any mitigating or enhancement factors, statements from the defendant, and the potential for rehabilitation. The presumptive sentence is the minimum within the range unless enhancement factors are present, and the trial court must adjust the sentence accordingly based on these factors while retaining discretion in weighing them.
Graham testified at the sentencing hearing regarding his security service, highlighting Cavil's significant role in its establishment and management of its private detective division. Victor Thayer, a chief investigator for Kroger, confirmed a positive working relationship with both defendants, describing them as gentlemen. Cavil acknowledged his military disciplinary issues, multiple contempt charges for unpaid child support, and a Chapter 13 bankruptcy filing. Ben Hale, from Promus Companies, praised Cavil as an exemplary employee over nearly four years. Patrolman Boldt described Cavil as civil and professional during their interactions.
The trial court found Graham had one prior conviction, identified two enhancement factors but no mitigating factors, sentencing him to three years in the local workhouse, a $1,000 fine, and three years of probation. Cavil received a nine-year sentence in the Department of Correction and a $1,500 fine. The enhancement factors applied were that Cavil was a leader in the offense and that the victim suffered particularly great personal injuries, which included significant losses in quality of life and cognitive skills. The court determined Cavil was unsuitable for probation, citing his military issues, child support failures, and financial instability. Cavil disputes the factual basis for the claim that he was a leader in the offense.
Cavil instigated the assault on the victim and continued to beat him after he fell, demonstrating leadership in the offense, while Graham participated to a lesser extent by striking and kicking the victim. The trial court found that Cavil's actions resulted in particularly severe injuries to the victim, who, despite being released in good condition, suffered lasting speech and mobility impairments. Cavil's argument against the application of enhancement factor (6) was dismissed, as the evidence supported the victim's permanent disabilities. Cavil's claim of acting under provocation was undermined by credible testimony indicating he was the initial aggressor. Although he presented evidence of good character, the trial court noted his troubled military history and personal challenges. The discretion regarding the weight of enhancement and mitigating factors lies with the trial court, which was deemed to have properly sentenced Cavil. Cavil's complaint about the disparity between his sentence and Graham's was rejected, as both were convicted of different offenses requiring separate evaluations. Ultimately, the trial court's judgment of conviction was affirmed.
