           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                             MAY 1997 SESSION
                                                             FILED
                                                          December 10, 1997
STATE OF TENNESSEE,           *      C.C.A. # 02C01-9608-CR-00282
                                                          Cecil Crowson, Jr.
             Appellee,        *      SHELBY COUNTY        Appellate C ourt Clerk


VS.                           *      Hon. W. Fred Axley, Judge

JOHN KNAPP,                   *      (Attempted Second Degree Murder)

             Appellant.       *




For Appellant:                       For Appellee:

Charles R. Curbo, Attorney           John Knox Walkup
109 Madison Avenue                   Attorney General & Reporter
Memphis, TN 38103
                                     Kenneth W. Rucker
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     Alanda Horne
                                     Assistant District Attorney General
                                     Criminal Justice Center, Third Floor
                                     201 Poplar Avenue
                                     Memphis, TN 38103



OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, John Knapp, was convicted of attempted second

murder. The trial court imposed a Range I, ten-year sentence. In this appeal of

right, the defendant claims an entitlement to a new trial on several grounds,

including that the trial judge precluded an effective cross-examination of the victim

and improperly commented on the evidence. Although counsel for the defendant

failed to enumerate other grounds in his appellate brief, there are references to

possible other issues; included is an alleged violation of the rule of sequestration of

witnesses.



              We affirm the judgment of the trial court.



              In 1994, the defendant vacated a residence at 1609 Stribling in

Memphis and the victim, Kevin Newburn, moved into the same residence. The

defendant and the victim had been friends and the defendant left the refrigerator for

the victim's use. Later, however, a dispute arose and the defendant gave notice to

the victim that he intended to regain possession of the item. Over a period of time,

the relationship between the defendant and the victim deteriorated to the point that

the defendant had to arrange for Ronnie Jackson, who lived near the victim, to help

him re-obtain the refrigerator.



              On February 6, 1995, Jackson and his stepson, Phillip, moved the

refrigerator from the victim's residence. Once the refrigerator was outside, the

defendant joined in the effort to move it into the Jackson residence. As the

refrigerator was maneuvered up a step, however, the door opened and several

items of spoiled food fell out. The defendant then threw the spoiled food over a

fence into the victim's front yard. The victim heard the noise, walked outside his


                                           2
residence, and observed dents in his vehicle which was parked near where the food

was thrown. The victim then picked up the garbage and threw it back. The victim

testified that when he returned to his residence, he heard a "loud boom" and so he

"came back outside and ... shot [his own weapon] up in the air." Otherwise, the

victim denied having made any threats toward the defendant at that point. Shortly

after this episode, two police cars arrived next door to talk to the defendant. They

left, however, without making any arrests.



              On the next day, the victim, who worked for a security company in

addition to his duties with the United Parcel Service, was assigned to the apartment

complex where the defendant lived. The victim, dressed in a security guard uniform,

was unarmed as he patrolled his vehicle through the apartment complex. Shortly

before noon, the victim saw the defendant's sister, Melissa Montgomery, as she was

leaving the apartments. The victim testified that he asked Ms. Montgomery "what

was up" with the defendant and his behavior the day before. According to the

victim, Ms. Montgomery answered that the defendant was "crazy" and that the victim

just needed "to leave him alone."



              The victim testified that a short while later he observed the defendant

drive through the apartment complex. He recalled that he refused a demand by the

defendant that he roll down his car window. What happened thereafter is best

reflected in the victim's testimony:

              So I just ... looked over there and when I looked back, ...
              I saw the infrared beam and I saw him pointing that gun
              at me. And I was just sitting.... [W]hen I saw that beam
              ... it just froze me. I didn't know [if] this guy [was] going
              to pull this trigger or ... not.... [I]t hit my head and came
              down. After [it] hit the bottom of my eye, I ... just kind of
              ... closed my eyes and heard a boom.... I went over into
              the seat and blood ... was just running profusely out of
              my mouth and I couldn't stop it, so I just drove off. I just
              hit the gas. I didn't know what to do because he took off

                                             3
              real fast.... So I started blowing the horn because I felt
              myself getting weak and I just knew I was going to pass
              out and I wouldn't make it to the office or make it
              anywhere. As I looked to my left, he had come back
              around beside me and it was like he was either waving
              that gun or waving his hand at me.... [I] drove to the
              leasing office, got out, and I walked to the door and told
              her, ... "call 911, I've been shot." Blood [was] just
              running like a water faucet.



              The defendant testified that on the day before the shooting, he had

complained to the police about the victim having thrown the garbage back into the

Jacksons' yard. He contended that the victim caused damages to his vehicle of

almost $1,000.00. On the day of the shooting, the defendant attempted to take out

a vandalism warrant against the victim. When he told officers that the damage to

his vehicle was over $500.00, however, he learned that more information would be

required because the charge would be a felony rather than a misdemeanor. A short

while later, the defendant learned that his sister, whom he described as "hysterical,"

had talked to the victim. He claimed that she suggested that he needed to "go and

check" on the victim. The defendant then drove to his apartment complex "to check

and make sure somebody was not breaking into my apartment to steal my stereo

equipment."



              The defendant testified that when he arrived, he saw the victim and

asked, "[W]hat the hell [are you] doing in my apartment complex?" The victim

answered that he was a security guard. According to the defendant, the victim then

instructed him not to come into the neighborhood, else "he would make it so I was

unable to walk." The defendant claimed that the victim then said, "Boy, I ought to go

ahead and take care of you now" and then picked up a gun. The defendant, still

inside his vehicle, testified that he leaned over, saw a gun on his floorboard, put a

bullet in the chamber, hurriedly fired his weapon, and then drove away. The


                                           4
defendant explained that he thought the victim "was going to shoot me." Afterward,

the defendant drove to his place of employment, informed his boss what had taken

place, and then drove to the "East Precinct" of the police department.



              No weapon other than that of the defendant was discovered by police.

The victim's car window was shattered as he was struck in the chin by a bullet. A

spent cartridge was later located on the window wiper of the defendant's car. Expert

testimony on the firearm indicated that the gun was being held outside the car

window at the time the shot was fired.



              The defendant makes no challenge to the sufficiency of the evidence.

Second degree murder, a Class A felony, is "a knowing killing of another." Tenn.

Code Ann. § 39-13-210. Because the victim survived the shooting, the crime was

one of attempt. Tenn. Code Ann. § 39-12-101. The felony grade, Class B, is one

degree lower. Tenn. Code Ann. § 39-12-107. Certainly, it is our view that the

recorded evidence is sufficient to support the jury's verdict.



              In this appeal, the defendant contends that the trial court made a

number of errors; however, he has failed to categorize his arguments. He

complains that the trial judge ridiculed and threatened his defense counsel, thwarted

the cross-examination of the victim, and generally precluded the presentation of a

proper defense.



              The defendant cites as the most egregious example of this the

instructions made by the trial court to the jury after defense counsel attempted to

cross-examine the victim about the nature of earlier statements made for worker's

compensation and victims to crimes compensation purposes. When the issue was


                                           5
raised, the trial court charged the jury as follows:

              There is an attempt to impeach a witness on a prior
              inconsistent statement. When I charge you, ... I'll explain
              to you what that means. But in order for the witness to
              be impeached on a prior inconsistent statement, the
              lawyer trying to do that must have in his hand the
              statement.

              The court ... just learned that they don't have it, but will
              have it sometime today, within an hour is what I was told.
              So you cannot consider this line of questioning until the
              examining lawyer ... has that statement in their
              possession.

After further discussions with counsel in connection to the worker's compensation

claim of the victim, the trial court instructed the jury a second time:

              [Y]esterday, there was an objection by the state that
              [defense counsel] was asking questions of [the victim]
              about a CIGNA insurance company worker's
              compensation claim ... and about statements that [the
              victim] had made to the ... company. You may recall that
              [the victim] stated that the ... hospital filed a claim and
              not him. I did not rule on the objection because the court
              was advised by defense counsel that this would be linked
              up by information that he had. I am advised today that
              he does not have that information and it is not available
              to him. The objection is sustained. In other words, I am
              ruling for the state. You may disregard the questions
              asked by defense counsel with regard to statements [the
              victim] made to CIGNA Insurance Company.

The defendant claims that this instruction was made in "an extremely sarcastic tone

of voice" with an emphasis so as to indicate that his defense counsel was "a liar."

The defendant contends that it was perfectly clear to the trial judge that defense

counsel never had a copy of the statement, only information as to its content.



              The defendant also refers to a violation of the rule requiring

sequestration of witnesses. He contends that the victim, who had testified for the

state, should not have been permitted to stay in the courtroom after his testimony.

The defendant asserts that the trial judge violated the state constitution by

commenting favorably upon the credibility of the victim and indicating a belief in the


                                            6
guilt of the defendant. (See Tenn. Const., art. VI, § 9, providing that "judges shall

not charge juries with respect to matters of fact, but may state and declare the law.")

The defendant also argues that the trial judge's reference to Kevin Newburn as the

"victim" was erroneous. He also complains that a transcript of the preliminary

hearing was introduced at trial without redaction, including the opinion of the general

sessions judge that there was "probable cause." He also submits that the trial court

"smirked at defense counsel, would roll his eyes when [counsel] asked questions

that appeared to be making headway, and generally used every type of body

language possible to demean defense counsel." The defendant insists that the trial

judge erroneously allowed the state's witnesses to handle the weapon used in the

shooting but precluded the defense from doing so.



                                                          I

                  The victim filed a claim for criminal injuries compensation and the

hospital where he was treated filed a claim for worker's compensation.1 The victim

admitted that he made a statement in support of his worker's compensation claim

but denied having made any statement regarding his claim as a victim of a criminal

act.2 He explained that his attorney had prepared the statement regarding the claim

         1
           In an out-o f-court s tatem ent discu ssion, the trial judge told d efense couns el that he ha d to
show knowledge of the contents of the statement made by the victim, which was apparently never
transcribed. Defense counsel could not pinpoint the source of his information. A witness from CIGNA
Insuran ce Co mpa ny, Attorney B ruce W illiams of M emp his, had b een su bpoen aed by bo th the state
and the defense. The state asked to excuse the insurance com pany representative but the court
refuse d to do so on the ba sis that de fense c ounse l had a right to call the repr esenta tive as a witne ss.
W hile th e jury w as ou t, the w itnes s sa id the re wa s no w ritten f orm of the state me nt, on ly a tape in
Richmond, Virginia. The witness claimed that he had not been subpoenaed by defense counsel and
chos e to ap pear o nly after c onsu ltation w ith the pr osec ution. T he ex tent of M r. W illiams 's
representation was in providing advice to the insurance company as to how to respond to a faxed
subpo ena by the defens e ma de the da y before trial.

         2
         Def ens e cou nse l rece ived a copy o f a fax from the C rim inal In juries Com pen satio n Cla ims
Dep artm ent o f the S tate th at ha d bee n filed by the victim . In a he aring out o f the p rese nce of the jury,
defens e coun sel read a portion of th e statem ent:

                  On February 6, 1995, Mr. Newburn and his neighbor had an
                  argument over a refrigerator which resulted in Mr. Newburn calling
                  the police who removed the offender from the premises. On
                  February 7, 1995, the offender went back to Mr. Newburn's job and
                  shot him in the face .

                                                         7
for victim compensation. The trial court refused to allow use of the information in

either claim as grounds to impeach the victim during cross-examination.



                  Generally speaking, the right to an effective cross-examination

involves the fundamental right to a fair trial. Yet the propriety, scope, and manner of

cross-examination for the purposes of impeachment are within the discretion of the

trial court. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980); Tenn. R.

Evid. 611(a).



                  Here, the victim was questioned about the statement he had made in

support of the worker's compensation claim. He was, however, unable to remember

much of the content other than it was "pretty much exactly the same thing I have

already said...." Because defense counsel did not have a copy of the statement, the

trial court would not allow defense counsel to "refresh the victim's memory" by

suggesting the content.



                  The state concedes that the trial court's assertion that "in order for the

witness to be impeached on a prior inconsistent statement, the lawyer trying to do

that must have in his hand the statement," is not a correct statement of the law.

Tenn. R. Evid. 613. The state argues, however, that because defense counsel's

only knowledge of the statement was through discussions with clerical employees of

the insurance agency, the trial court properly precluded any reference to the

statement.




The vic tim den ied ma king the statem ent and th e trial court ru led that the d efenda nt was "s tuck w ith
the ans wer" and could no t introduce the faxe d statem ent.




                                                       8
              As to the criminal injuries claim, the victim recognized only the first and

last pages of the document, denied having ever read an attached police report, and

contended that he did not make the statement defense counsel sought to use for

impeachment. The trial court ruled that it would have been admissible only if

counsel could qualify the extrinsic evidence. The primary aim of the cross-

examination was to attack the credibility of the victim by showing that the victim had

made a false claim of ownership of the refrigerator. A second objective was to call

into question whether the victim had contacted police about the dispute.



              The victim could not recall the details of the his injury claim. When

defense counsel tried to refresh his memory, despite having only a general idea

based on conversations with another as to the content of the document, the purpose

of the cross-examination was frustrated regardless of the intervention by the trial

court. While the subject matter was clearly collateral to the central issue, it had

some relevance to the credibility of the victim. In context of the entire record,

however, it is our view that the error was harmless; while defense counsel may have

had some basis to consider his colloquy with the court as a personal affront, it is our

opinion that the ruling had no effect on the results of the trial. Tenn. R. App. P.

36(b); Wilson v. State, 109 Tenn. 167, 70 S.W.2d 57 (1902).



                                           II

              Rule 615, Tenn. R. Evid., provides that witnesses, upon request of

either counsel, must be excluded from the courtroom except during their testimony

and prevented from disclosing the content of their proof. Here, the victim was called

as a witness for the state. Because defense counsel indicated that he might recall

the victim during defense proof, the trial court declined to honor counsel's request

for continued sequestration. The state concedes that the trial court committed error


                                           9
by failing to recognize that the rule of sequestration includes rebuttal witnesses. Yet

the state argues that any error in the failure to exclude the victim as a witness was

harmless. Tenn. R. App. P. 36(b).



              A history of the rule of sequestration of witnesses appears in State v.

Anthony, 836 S.W .2d 600 (Tenn. Crim. App. 1992). Traditionally, trial judges have

been afforded wide discretion in determining whether to impose the sanctions of

excluding the evidence of the witness suspected of violating "the rule" or declaring a

mistrial. State v. Moffett, 729 S.W.2d 679, 681 (Tenn. Crim. App. 1986);

Tennessee Law of Evidence, Neil P. Cohen, et al., § 615.4 (3d ed. 1995).



             "The rule" was included in the Tennessee Rules of Evidence:

                At the request of a party the court shall order
             witnesses, including rebuttal witnesses, excluded at trial
             or other adjudicatory hearing. Sequestration shall be
             effective before voir dire or opening statements if
             requested. The court shall order all persons not to
             disclose by any means to excluded witnesses any live
             trial testimony or exhibits created in the courtroom by a
             witness. This rule does not authorize exclusion of (1) a
             party who is a natural person, or (2) an officer or
             employee of a party which is not a natural person
             designated as its representative by its attorney, or (3) a
             person whose presence is shown by a party to be
             essential to the presentation of the party's cause.

Tenn. R. Evid. 615. Prior to January 1, 1990, the effective date of the Rules of

Evidence, "the rule" did not apply to rebuttal witnesses. Rule 615, however,

provides that upon request, "the court shall order witnesses, including rebuttal

witnesses, excluded at trial or other adjudicatory hearing...." The new rule does vest

trial courts with some discretion in that it does not apply to "a person whose

presence is shown by a party to be essential...." Tenn. R. Evid. 615. The Advisory

Commission Comment to this rule provides as follows:

              If a witness inadvertently and unintentionally hears some
              trial testimony, the sense of the rule would permit the

                                          10
              judge to allow the witness to testify if fair under the
              circumstances.

In this case, the victim, after testifying for the state and retained by the defense as a

possible witness, was never recalled to the stand. Neither was he recalled to testify

again for the state. Under these circumstances, it cannot be said that the state

gained any advantage by the violation. Thus, any error was clearly harmless. State

v. George Corbit Wallace, Jr., No. 01C01-9106-CC-00189 (Tenn. Crim. App., at

Nashville, Feb. 20, 1992).



                                            III

              The defendant asserts that the trial judge made an improper comment

on the evidence by referring to Newburn as a "victim," by permitting the general

sessions transcript into evidence, by prohibiting the defendant from handling the

weapon during his testimony, and by making sarcastic remarks and exhibiting

unfavorable body language.



              As to the reference to Newburn as victim, the trial court provided a

curative instruction as suggested by the defense. Because the trial court instructed

the jury to disregard his use of the word "victim" because it was in no way intended

to express an opinion that Newburn was, in fact, a victim, the error was cured. It is

presumed that a jury will follow the instructions of the court in such a situation. State

v. Johnson, 762 S.W.2d 110, 116 (Tenn. 1988).



              On at least two separate occasions during the course of the trial,

defense counsel agreed to allow the entire general sessions court transcript to be

read to the jury. Thus, the defense failed to take steps to prevent any alleged error

by the admission of the transcript. Tenn. R. App. P. 36(a). Moreover, the trial court

correctly instructed the jury on the presumption of innocence and properly charged

                                           11
that the burden of proof was on the state beyond a reasonable doubt. It is unlikely,

under these circumstances, that any probable cause determination at the general

sessions court level (a process repeated by the grand jury indictment) would have

prejudiced the jury.



                It is difficult to assess allegations regarding body language and

sarcasm. The written record rarely provides an accurate reflection of any such

behavior. That is the case here as well. A reference to the trial judge's laughter

after one exchange was, in our view, clearly inconsequential in the entire context of

the trial. Tenn. R. App. P. 36(b). During the course of the trial, the trial court

instructed the jury to determine the facts from the testimony of the witnesses. The

law presumes that the jury adhered to those instructions.



                Finally, the only witness who was permitted to handle the weapon had

been qualified as an expert on "how nine millimeter weapons eject spent shells."

Witnesses other than the court officer, whether called by the state or defense, were

not allowed to do so. In answer to the question by defense counsel for permission

to "approach the witness and pass him the weapon," the trial court answered, "The

deputy can show it to him, that's his job." When defense counsel complained that

the state's attorney had been allowed to handle the weapon, the trial court

responded, "You're welcome to ... but I cannot let you ... hand that weapon to this

witness...."3 The rule of the trial court precluding the actual handling of weapons by

witnesses other than experts is reasonable. Because the rule applied to both the

state and the defense, the incident did not, in our view, affect the results of the trial.




        3
          This exchange appears to have taken place in a bench conference although the record is not
clear on th at point.

                                                12
          Accordingly, the judgment is affirmed.



                                     __________________________________
                                     Gary R. Wade, Judge

CONCUR:



______________________________
John H. Peay, Judge



_______________________________
Thomas T. Woodall, Judge




                                     13
