        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                    SEPTEMBE R SESSION, 1996                FILED
                                                      March 12, 1998
STATE OF TENNESSEE,      )    C.C.A. NO. 02C01-9312-CC-00276
                         )                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,          )
                         )
                         )    MADISON COUNTY
VS.                      )
                         )    HON. FRANKLIN MURCHISON
DARRELL LEE EMERSON,     )    JUDGE
                         )
      Appe llant.        )    (Direct Ap peal)



FOR THE APPELLANT:            FOR THE APPELLEE:

MIKE MOSIER                   JOHN KNOX WALKUP
204 W est Baltimore           Attorney General and Reporter
P. O. Box 1623
Jackson, TN 38302-1623        WILLIAM DAVID BRIDGERS
                              Assistant Attorney General
                              450 James Robertson Parkway
                              Nashville, TN 37243

                              JERRY W OODALL
                              District Attorney General

                              NICK NICOLA
                              Assistant District Attorney
                              P. O. Box 2825
                              Jackson, Tn 38302




OPINION FILED ________________________

REVERSED AND REMANDED


JERRY L. SMITH, JUDGE
                                    OPINION


       On May 19, 1995, a Madison County Circuit Court jury found Appellant

Darre ll Lee Emerson guilty of attempted second-degree murder, aggravated

assau lt, two co unts o f reckle ss en dang erme nt, pos sess ion of m arijuana with

intent to sell, possession of marijuana with intent to deliver, possession of drug

paraphernalia, and poss essio n of a d eadly w eapo n with in tent to e mplo y it during

the commission of a felony. T he trial judg e merg ed the p ossess ion with inte nt to

deliver conviction with the conviction for possession with intent to sell. As a

Range I standard offender, Appellant was sentenced to twelve years for

attempted second-d egree m urder, six years for aggravated assault, two years for

each count of reckless en dange rment, tw o years fo r posse ssion of m arijuana w ith

intent to sell, eleven months and twenty-nine days for possession of drug

parap herna lia, and two years for p ossess ion of a de adly wea pon with intent to

employ it during the comm ission of a fe lony. All sentences were ordered to run

concurrently. On appeal, Appellant raises the following issues:

1) Whether the evidence is sufficient, as a matter of law to s uppo rt his
convictions for attempted second-degree murder, aggravated assau lt,
and two counts o f reckless endan germe nt,
2) Whether the trial court abused its discretion in permitting police
officers to testify that they alw ays complied with the “knock and
announce” rule and permitting the police officers to demonstrate how
they allegedly complied with that rule,
3) Wh ether the trial court pro perly overru led App ellant’s motion to
suppress,
4) Wh ether the trial court com mitted pr ejudicial erro r in denyin g
Appe llant’s request for spe cial jury instructions on self-defense, the
“knock and announce” rule, and character evidence, and
5) W hether th e trial court p roperly se ntence d Appe llant.

After a carefu l review of the record, w e reverse all of Appellant’s convictions,

dismiss the conviction for aggravated assault, attempted second degree murder



                                          -2-
and merge the two co unts of reckless endangerment into one, and remand for re-

trial on the re mainin g coun ts of the ind ictmen t.



                               I. Factual Background

       Suspecting Appellant of possessing and dealing m arijuana, police officers

obtained a search warrant for Appellant’s home located in Jackson, Tennessee.

After obtain ing the warra nt, office rs from the Ma dison Coun ty She riff’s

Depa rtment, the Jackson Police Department, and the 26th Judicial District Drug

Task Force went to Appellant’s house on December 1, 1993 to execute the

warran t. The o fficers d ivided in to a front door and a rear door team . Mark

Cald well, Danny Mullikin, Alphonzo Newburn, Donald Holland, and James

Truelove were members of the front door team. Thomas Coleman, Matthew

Hardaw ay, and Glenn Penney were members of the back door team. According

to the plan o f entry, the fron t door team would announce their presence and

attempt to gain entry. Once the team s were in place, the front doo r team trie d to

pry open Appe llant’s sc reen d oor bu t were u nsuc cess ful. They th en rippe d it off

and bega n kno cking on the wood en do or at the front of th e hou se.           W hile

knocking, they yelled, “Police. Sea rch W arran t.” At this p oint, O fficer C aldwe ll

heard noises inside the house that sounded as if someone was running from the

front of the house to the rear of the house. Afraid that Appellant was attempting

to flush his marijuana down the toilet, Caldwell and Newburn began kicking the

front door down.      As they did so, officers continued to yell “Police. Search

W arrant.” After several kicks, the front door gave way and the front door team

entered the house. As Caldw ell entered the house, Appellant shot him, striking

him in the neck. Mullikin and several other officers then struggled with Appellant

to restrain him. S hortly a fter the fr ont do or team bega n kickin g on A ppella nt’s

                                           -3-
door, the rear door team began knocking on Appellant’s rear door while yelling,

“Police. Search Wa rrant.” The rear door team then b egan batterin g App ellant’s

rear door with a battering ram. When they entered the house, they heard a

poppin g soun d and s melled gunpo wder.

       At trial, the d efens e argu ed tha t on the night of December 1, 1993,

Appellant was at home watching television when he heard someone fiddling with

his screen door. Fearful for his life, he went to h is bedroom to retrieve a gun.

Appellant claimed that he never heard anyone yell “P olice. Sea rch W arrant.”

According to Appellant, as soon as he realized that he had shot a police officer

he threw do wn his w eapon and su rrendere d. Appe llant testified on his own

beha lf claim ing tha t he wa s actin g in self-defense. Ap pellant’s neighbo rs testified

that they never heard anyone shout “Police. Search Warrant.” Several people

testified on behalf of Appellant that he was a truthful person.

       At the suppression hearing, the proof submitted by the State showed that

Newburn used a screwdriver to pry open the screen door but was unable to do

so. He then ripped the door open. Caldwell proceeded to knock on the wooden

door, yelling “Police. Search W arran t.”        After k nock ing an d ann ounc ing his

presence, Caldwell heard someone inside the house running toward the rear of

the house.    In response, Caldwell and Newburn began kicking the door in.

Officer Colem an, part o f the back door tea m hea rd the fron t door team yelling

“police search warrant,” a nd beg an prep aring to bre ach the rear doo r. Once he

heard the front door being breached he yelled “police. Search Warrant,” and then

breached the rear d oor. The trial cou rt found that the police had la wfully entered

Appellant’s home, and therefore admitted the evidence found in the search.




                                           -4-
                          II. Sufficiency of the Evidence

       Appellant mainta ins that the evidenc e was ins ufficient as a matter of law

to support his convictions for attempted second-degree murder and aggravated

assa ult of O fficer C aldwe ll and reckless endangerment of Officer Newburn and

Officer Mullik in. Appe llant does not conte nd that the State did not put forth

enough evidenc e to estab lish the elem ents of these crimes. Instead, he argues

that the officers’ stories varied so much among each other and between the night

of the search and the time of trial, they were not believable. When an appeal

challenges the sufficiency of the evidence, the standard of review is whethe r,

after viewing the evidenc e in the light m ost favora ble to the S tate, any rational

trier of fact could have found the essential elements of the crime beyond a

reaso nable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v. Evans,

838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740 (1994); Tenn.

R. App. P . 13(e). On appea l, the State is entitled to the strongest legitimate view

of the evid ence and a ll reaso nable or legitima te inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978). This C ourt will

not reweigh the evidence, re-evaluate the evidence, or substitute its evidentiary

inference s for those reache d by the jury . State v. Grace, 493 S.W.2d 474, 476

(Tenn . 1973).

       Once approved by the trial court, a jury verdict accredits the witnesses

presented by the State and resolves all conflicts in fa vor of the S tate. State v.

Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842

(Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony,

and the reco nciliation of c onflicts in the proof are matte rs entru sted e xclusive ly

to the jury as trier of fact. State v. She ffield, 676 S.W .2d 542, 547 (Tenn. 198 4).

For these reasons, had the jury been properly instructed, [see discussion infra.]

                                          -5-
we find that there was sufficient evidence to find Appellant guilty of attempted

secon d-degre e murd er, aggra vated as sault, and reckless endan germe nt.

        Howeve r, Appella nt also claim s that he could not legally be convicted of

both attempted s econd-de gree mu rder and ag gravated assault of Officer

Cald well because the crimes involved the sam e perso n. In State v. Denton, 938

S.W.2d 373 (Ten n. 1996); our Supreme Court extended double jeopardy

protection under the Tennessee Constitution beyond that provided by the federal

constitution.1 That is, while multiple convictions for a single criminal action may

be permitted by the federal constitution under Blockberger v. United States, 284

U.S. 299 (1932), the result may be different under the Tennessee Constitution.

In order to determine whether multiple convictions for a single criminal episode

which violates two distinct statutes is permissible under Tennessee law, we must

now engage in the following four prong inquiry: “(1) a Blockberger analysis of the

statutory offenses; (2) an analysis, g uided b y the princip les of Duch ac [v. State ,

505 S.W.2d 237 (Tenn. 1973)], of the evidence used to prove the offenses; (3)

a consideration of whether there were multiple victims or discrete acts; and (4)

a comparison of the purposes of the respective statu tes.” Denton, 938 S.W.2d

at 381.

        This Court in State v. Hall, Madison County, C.C.A. No. 02C01-9607-CC-

00211, Opin ion filed January 28, 1997, at Jackson; has previously held that

because each statutory provision setting forth these offenses requires proof of an

additional fact which the other does n ot, attempted second-degree murder and

aggravated assault are not the same offense for federal double jeopardy

purposes. We also held in Hall that the purposes of the statutes prohibiting



        1
         The double jeopardy clause of the Tennessee Constitution provides “[t]hat no person shall, for
the sam e offens e, be twice put in jeopa rdy of life or lim b.” Ten n. Cons t., Art I, Sec. 10 .

                                                 -6-
attempted murder and aggravated assault are the same: to prevent physical

attacks upon persons. Id. As in Hall, we find that the eviden ce used to p rove

both the offe nses in this case is the same: the defendant’s firing a loaded gun at

a person entering his home. The convictions were for a discrete act against

Officer Caldwell. Therefore, as in Hall and under the reasoning in Dento n, we

find that Appellant’s convictions for attempted second-degree murder and

aggravated assault must merge. Accordingly, we revers e App ellant’s conviction

for aggra vated as sault.

       In addition, Appellant challenges his conviction for two counts of reckless

endangerment beca use th ere wa s only a sing le cou rse of c ondu ct. In fac t, this

Court held in State v. Ramsey, 903 S.W .2d 709 (Tenn . Crim. A pp. 199 5), that a

single course of conduct could only give rise to one conviction for reckless

endangerment despite the fact that more than one person may have been

endangered. Ther efore, th e trial co urt erre d in failin g to m erge tw o cou nts into

one.



   III. Demo nstratio n of Co mplian ce w ith “Kn ock an d Anno unce ” Rule

       Appellant also conte nds th at the tria l court e rred in permitting the officers

to testify that they always complied with the “kno ck an d ann ounc e” rule a nd in

permitting them to demonstrate how they yelled “Police. Search warrant” in the

courtroom. The trial court permitted the officers to testify that they always

complied with the “knock and announce” rule pursuant to Tennessee Rule of

Evidence 406(a) which provides th at “[e]videnc e of the ha bit of a pers on . . .

whether corroborated or not and regardless of the prese nce o f eye-w itness es, is

relevant to prove that the conduct of the person . . . on a particular occasion was

in conformity with the h abit.” Appellant objects to this testimony on the grounds

                                          -7-
of relevancy and prejudice. The evidence was clearly relevant considering that

one of the main issues in the trial was whether the police officers knocked and

announced their pre senc e in the execu tion of th eir warrant. Appellant argues that

the testim ony pr ejudic ed him beca use it led the jury to believe that since officers

had knocke d and a nnoun ced oth er times , it is more likely than not that they

knocked and announced at Appellant’s home. Of course, evidence of habit is

admis sible for this ve ry reason . See Tenn. R . Evid. 406(a). Appellant does not

state why the probative value of this evidence is outweighed by the danger of

unfair prejudice. Because the trial court complied with the dictates of Tennessee

Rule of Evidence 406 and Appellant has failed to demonstrate how the evidence

was unduly prejudicial, the trial court did not err in permitting the officers to testify

about their habit of knocking and announcing before the execution of a search

warran t.

       The decision whether to allow a courtroom demonstration rests within the

discretion of the trial judge and will not be disturbed absent a showing of abuse

of that discre tion. State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App.

1984). How loudly the officers announced their presence was clearly relevant

because the issu e of wh ether A ppella nt hea rd the p olice knock and announce

their presence was central to the trial. If the police used a tone o f voice u sed in

everyday, regular conversation there would be a goo d cha nce th at App ellant d id

not hear them at his door.         Again, Appellant has failed to show how the

demonstration was undu ly prejudicial. Therefore , it was proper to allow the

officers to testify as to how loudly they announced their presence.




                                           -8-
                 IV. Denial of Appellant’s Motion to Suppress

      Appellant argues that the trial court erroneously ruled that evidence

gathered as a resu lt of the Dece mber 1, 1993 search of his home was

admissible. We must a gree with Appella nt for two re asons . First of a ll, we find

that the warrant was improperly executed. Secondly, we find that the search

warrant was not supported by probab le cause . At the outs et, we recognize that

a trial court’s de termina tion at a suppression hearing is presumptively correct on

appeal and may be overcome only if the evidence in the record preponderates

against the trial court’s findings. State v. Stephenson, 878 S.W.2d 530, 544

(Tenn. 19 94).

      Before an officer may m ake a forced entry into an occupied residence, the

officer must give “notice of his authority and pu rpose.” Tenn. R . Crim. P. 41(e),

State v. Fletcher, 789 S.W.2d 565, 566 (Tenn. Crim. App. 1990). The knock and

announce rule is not merely a statutory or court rule, it is part of the requirement

under the Fourth Amendment to the United States Constitution that searches be

reasonable. Richa rds v. W iscon sin, ___ U.S . ___, 117 S.Ct. 1416, 142 0 (1997);

Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The

requirement mandates that officers (a) identify themselves as law enforcement

officials and (b) explain the purpose of their presen ce, i.e. the ex ecution o f a

search warrant. W . LaFave , Search and Seizure, § 4.8(c) at 606-07 (3d ed.

1996). If the officer is not admitted to the residence after giving proper notice, the

officer is authorized to “break open any door or window . . . , or any part th ereof,

. . . to the extent that it is reasona bly necessa ry to execute the warrant and does

not unnece ssarily damag e the property.” T enn. R. Crim . P. 41(e).




                                         -9-
The purpose of the “knock and announce” rule is threefold:

        First, it provides protection from violence, assuring the safety and
        security of both the occupants and the entering officers. Second, it
        protects ‘the precious interest of privacy summed up in the ancient
        adage that a man’s house is his castle. . . . Finally, it protects
        against the ne edless des truction of private prope rty.

Lee, 836 S.W.2d at 128 (citing U.S. v Moreno, 701 F.2 d 815, 8 17 (9th Cir. 1983)).



        Absent exigent circumstances, officers must wait a reasonable period of

time before they may break a nd ente r into the pre mises . State v. Lee, 836

S.W.2d 126, 128 (Tenn. Crim. App. 1991) (citing State v. Carufel, 314 A.2d 144,

146 (R.I. 1974)). In State v. Fletcher, supra., this Court indicated that “sounds

indicative of flight or destruction of evidence -- running, scuffling, or toilet flushing”

could excuse compliance with the knock and announce rule. 789 S.W. 2d at 566.

Howeve r, the United States Supreme Court has recently refined the test of

exigency which will excuse compliance with the knoc k and a nnoun ce rule. In

order to excuse non-compliance with the rule, the police must have a “reaso nable

suspicion that kn ockin g and anno uncin g their p resen ce, un der the particular

circumstances, would be dangerous or futile, or that it would inhibit the effective

investigation of the crime by, for exam ple, allowin g the de struction o f evidence .”

Richa rds v. W iscon sin, 117 S.Ct. At 1421.

        Turning now to the fac ts of this case the Sta te argu es tha t officers fully

complied with the knock and announce rule, and that even if they did not they

were excused from doing so because they heard someone run inside the house.

The evidence put forth at the s uppres sion hea ring and undispu ted by the State

revea ls that the officers quietly attempted to pry open Ap pellant’s screen d oor. 2


        2
          The State argues that officers tried to open the screen in order to aid the occupants of the
residence in hearing the officers knock and identify themselves. One wond ers why if the officers were
only interested in making their presence known, they felt it necessary to open the screen “quie tly”.

                                                -10-
When this wa s uns ucce ssful, they ripped it open. Only then did they knock and

announce. Clearly, ripping off Appellant’s screen door was a breaking within the

meaning of Tennessee Rule of Criminal Procedure 41(e).                 While the State

attemp ts to justify the officers’ actions by claiming that they heard running to the

back of the house, they did not hear the running until after they had, without

annou ncem ent, broke n ope n App ellant’s door. W hile it is doubtful that sounds

of running inside an occup ied dwe lling can, sta nding a lone, form the basis of a

“reaso nable suspicion” of attem pted e scap e or de structio n or evid ence , it is clear

that officers ma y not throu gh suc h mea sures a s ripping a screen door off its

hinge create an exigency they later claim justifies an unannounced entry. See,

State v. Lee, 836 S.W. at 129.

       Since the officers did not knock and announce before tearing open the

screen door, they did not comply with the “knock and announce” rule. Under the

circumstances nothing excuses failure to comply with the rule. We conclude that

the trial court erre d in deny ing App ellant’s m otion to suppress the evidence

seized pursu ant to th e sea rch wa rrant, a nd the refore order a new tria l on the

conviction for posse ssion of m arijuana w ith intent to sell and possession of drug

paraphernalia.

       Moreover, we find that the motion to suppress should have been granted

because the warra nt was d efective. In State v. Jacu min, 778 S.W .2d 430 (198 9),

the Tennessee Supreme Court adopted the two-pronged Aguila r-Spin elli test as

the standard by which probable cause is to be measured to determine if a search

warrant is proper under Article 1, Section 7 of the T ennes see Co nstitution. Id. at

436 (citing Aguilar v. Texas, 84 S.Ct. 1509 (1964) & Spinelli v. United States, 89

S.Ct. 584 (1969 )).     Under that test, when a search warrant is based upon

informant information, the basis of the informant’s knowledge and his c redibility

                                          -11-
must be established before a magis trate may pro perly issue a warran t. Jacu min,

778 S.W.2d at 432.

       The affidavit at issue stated that the police had received information from

“a confidential informant who has been proven reliable in the past through police

observation and supe rvision . . . .” “Said confiden tial informa nt has w orked w ith

investigators in an undercover capacity wherein conta ct has be en ma de with

alleged drug traffickers for the purpose of probable ca use drug p urchases.” A

conclusory statement that the info rmant is reliable is insu fficient. State v. Moon,

841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Likewise, the assertion that the

informant has w orked with po lice officers in the past does not cure the

insufficiency.   See State v. Udzinski, No. 01C01-9212-CC-00380, 1993 W L

473308, at *3 (Tenn. Crim. App. Nov. 18, 1993). The State argues that this C ourt

has found that similar information has sufficiently supported search warrants in

the past. The State cites two cases wherein the credibility prong was satisfied

by a state men t in the affidavit that information from an informant had led to either

arrests or con victions .   Wh ile inform ant relia bility has been estab lished by

showing that an info rmant’s past per forman ce has led to convictions or arrests,

here we have neither. See id. From the sta teme nts reg arding the info rman t’s

past work with the police one cannot even discern if drug purcha ses were

ultima tely made. All one can determine is that contact was made with alleged

drug traffickers .   We find tha t the info rmatio n con tained in the a ffidavit is

insufficient to establish the cred ibility of the inform ant.

       Both the failure to properly comply with the “knock and announce rule” and

the insufficiency of the sea rch warrant mandate that the evidence seized be

suppre ssed a nd a ne w trial ordere d.




                                          -12-
                           V. Failure to Instruct the Jury

      Appe llant’s fourth issue dea ls with the trial court’s failure to instruct the jury on

(1) the presumption found in Tennessee Code Annotated Section 39-11-611(b)

(1991), which applies when a person uses deadly force against an intruder in his

own home, (2) the “knock and announce” rule, and (3) character evidence. The

presumption found in Tennessee Code Annotated Section 39-11-611(b) provides

that a person using deadly force against an intruder in h is hom e is presu med to have

held a reasonable fear of imminent peril or death or serious bodily injury. The

instruction on character evidence provides both that “a person of good character

may violate the law , but a person of good character is less likely to violate the law

than one of bad character,” and that the defendant’s character “may be considered

for the purp ose of en hancin g (the de fendan t’s) credibility as a witness.” A criminal

defendant has the right to a correct an d com plete cha rge of the law given to the jury

by the trial judge. Stephenson, 878 S.W.2d at 555 (citing State v. Teel, 793 S.W.2d

236, 249 (Tenn. 1990) & State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983)). The

State concedes that these instructions should have been given but that the trial

judge’s fa ilure to give th em wa s harm less. W e disagre e.

      Although the trial judge gave a general self-defense charge which provided

that a pers on is justified in using deadly force if he reasonably believes that he was

in imminent danger of death or serious bodily injury, Appellant was entitled to an

instruction concerning the presumption found in Tennessee Code Annotated Section

39-11-611 (b). It was for the jury properly instructed, to decide if the entry by the

police was lawful for the purposes of self-defense. If it was unlawful and Appellant

used dead ly force in his ho me in a reas onab le belief he was in imminent danger of

death or serious bodily injury by an intruder, he was entitled to the benefit of the

presumption.

                                           -13-
      Appellant was also entitled to an instruction on the “knock and announce” rule.

Of cours e, this is n ot so th at the ju ry could decid e if evide nce o btained from the

search was admissible. Instead, the testimony concerning whether the police

complied with the rule was necessary for the jury to determine if Ap pellant’s theory

of self-defense could be supported. Finally, th e jury he ard ev idenc e of Ap pellan t’s

good character but was not told how to use that evidence. Because the jury was not

given complete a nd correct instructions, Appellant’s convictions for attempted

second-degree murder and reckless endangerment must be reversed and retried.

Because we orde r a new tria l on these counts, w e preterm it determ ination of the

senten cing issu es raised by App ellant.

      W e conclude that merger of the attempted second-degree murder conviction

and the agg ravated a ssault co nviction as well as m erger of th e two counts of

reckless endangerment is required. Furthermore , the convictions for possession

with intent to sell and possession of drug paraphernalia must be reversed due to the

improper execution of the search warrant and the lack of probable cause to issue the

search warrant. We order a new trial on these charge s. Beca use co mplete proper

instructions were no t given to the jury, we remand for a new trial on the indictme nts

for attem pted se cond-d egree m urder an d reckles s enda ngerm ent.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE




                                            -14-
___________________________________
DAVID H. WELLES, JUDGE




                               -15-
