         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 25, 2006

                  STATE OF TENNESSEE v. THOMAS CARTER

                  Direct Appeal from the Criminal Court for Loudon County
                            No. 10212    E. Eugene Eblen, Judge



                   No. E2005-00731-CCA-R3-CD - Filed September 22, 2006


Defendant, Thomas Carter, was convicted of coercion of a witness, a Class D felony, and sentenced
to serve four (4) years in the Department of Correction. On appeal, Defendant argues that (1) the
State did not introduce sufficient evidence to convict him of the charge of coercion of a witness; and
(2) the trial court violated his constitutional rights by requiring him to wear shackles and his prison
uniform during his trial. Finding the second issue to have merit, we reverse the judgment and
remand for a new trial.

                          Tenn. R. App. P. 3 Appeal as of Right;
                  Judgment of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ. joined.

Patrick T. Phillips, Knoxville, Tennessee, (on appeal); Kent Booher, Lenoir City, Tennessee, (at
trial), for the appellant, Thomas Carter.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Scott
McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General, for the
appellee, the State of Tennessee.

                                             OPINION

I. Background

       Officer James Cecil Webb of the Loudon Police Department testified that he was present in
Loudon County General Sessions Court on May 10, 2000, as a witness in a case against Defendant.
Other witnesses present in court that day were Michelle Brewster, Officer Jonathan Sartin, and
Officer Robert Scott Newman.
         According to Officer Webb, he and Officers Sartin and Newman were standing together in
the Loudon County General Sessions Court waiting for Defendant’s case to be called. Ms. Brewster
was sitting on a courtroom bench behind and to the left of where the officers were standing. While
they were standing there, the door to the holding cell was opened by the attending officer. Defendant
stood in the doorway of the holding cell, pointed his finger at Ms. Brewster and said “she could make
all of this go away. She had better change her story.” Defendant “had a mean look, a real serious
look on his face . . . and he wanted her to know that he meant business.” Officer Webb said that
everyone in the courtroom, including the judge, witnessed Defendant’s threat to Ms. Brewster.

        Officer Jonathan Sartin of the Lenoir City Police Department also testified that he was in the
Loudon County General Sessions Court on May 10, 2000. He saw Defendant stand in the doorway
of the holding cell, point his finger at Ms. Brewster and say, “you could put a stop to this if you’d
change your story.” According to Officer Sartin, Defendant’s demeanor and his tone of voice were
threatening. He looked at Ms. Brewster with an expression that said she would be in “trouble” if she
did not change her story.

      On cross-examination, Officer Sartin said that he was approximately fifteen feet from
Defendant when he threatened Ms. Brewster. He said that following Defendant’s threat, Ms.
Brewster looked “scared” and exited the courtroom.

        Officer Robert Scott Newman of the Loudon Police Department testified that he was present
in the Loudon County General Sessions Court on May 10, 2000. He said that while he stood waiting
in the courtroom with some other officers, Defendant appeared in the doorway of the holding cell,
pointed his finger at Ms. Brewster, and said in a loud, intimidating voice, “you can stop this. You
better change your story.”

       On cross-examination, Mr. Newman said that he knew that Defendant and Ms. Brewster “had
been fussing and feuding with each other,” and it was obvious that Defendant was upset with Ms.
Brewster.

        Michelle Brewster testified that she was in Loudon County General Sessions Court on May
10, 2000. She and her brother, Wayne Cable, sat together in the courtroom. Defendant’s mother and
father sat next to her brother. Ms. Brewster said that there was a “big altercation” between her and
Defendant’s parents. She said that they were “real ugly” and “mean” and “it was a tough and hard
situation.” Some of the officers who were present escorted Defendant’s parents out of the
courtroom.

        Ms. Brewster said that as she was sitting in the courtroom talking with her brother, Defendant
came to the holding cell door and said “tell the truth,” “I love you,” and “I’ll see you later.” She said
she was in court to testify against Defendant because her car had been wrecked. Ms. Brewster said
that “after [she] thought about it,” the story that she originally told police was different than what
actually happened. She said that she was “planning to tell that day in court what [she] thought had
happened, until everything got blowed up.”


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        Ms. Brewster said that when Defendant spoke to her in the courtroom, she did not have any
indication that he wanted her to lie during her testimony, and she was not afraid of Defendant. She
said that she would not have lied in her testimony. She said that she left the courtroom after
Defendant’s statements because his attorney wanted to speak to her outside. Ms. Brewster “was in
no fear whatsoever” because Defendant was incarcerated. She said that she signed the warrant for
coercion of a witness because she thought the warrant was for the arrest of Defendant’s parents, not
Defendant.

         On cross-examination, Ms. Brewster admitted that she had previously told the officers at the
justice center that she was scared to death of Defendant. She also said she was concerned about what
he would do to her when he got out of jail and whether he would be mad at her. Ms. Brewster denied
that Defendant had kidnapped her in the past, but acknowledged that he had intimidated her on
previous occasions. She admitted that she and Defendant were now on “civil terms” and that she
had hugged him and kissed him that day.

         Ms. Brewster further admitted that she signed an affidavit, under oath, which indicated that
she was a prosecuting witness in a pending case in which Defendant was charged with vehicular
assault, reckless endangerment, and other theft and assault charges. The affidavit further indicated
that while Defendant was in the holding room awaiting his court appearance on these charges, the
door to the holding cell was opened and he stuck his arm out of the door, pointed his finger at Ms.
Brewster, and said “you better change your story.” The affidavit also stated that Ms. Brewster
expressed “extreme fear of defendant due to his past actions, kidnapping toward her,” and that she
felt intimidated, threatened, and that Defendant was a danger to her.

        On the day of his trial for the charge of coercion of a witness, Defendant was transported to
the courthouse wearing his Tennessee Department of Correction uniform. The uniform consisted
of blue denim trousers and a blue chambray shirt. He was also restrained by handcuffs which were
attached to a waist belt around his waist. During a hearing in the trial judge’s chambers, Defendant’s
trial counsel made an oral motion that Defendant be permitted to wear civilian attire during his trial
and that he also be released from the handcuffs which were attached to his waist belt. A guard from
the Department of Correction was attending Defendant, and he voiced an objection to removing
Defendant’s restraints. This objection was brought to the trial judge’s attention, and he subsequently
ruled that Defendant had to remain in both his prison uniform and his physical restraints during the
trial.

        There was no court reporter present during this hearing in the trial judge’s chambers. The
available evidence is taken from a supplement to the appellate record filed. The supplemental
record, which was filed September 16, 2005, contained a statement of the evidence approved and
signed by the trial judge. The statement of the evidence was properly included in the appellate
record. Tenn. R. App. P. 24(e).




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II. Timeliness of Notice of Appeal

        Initially, the State argues that this Court should dismiss Defendant’s appeal because his
notice of appeal was untimely filed and the Petitioner “has not demonstrated that the timeliness
requirement should be waived in the interest of justice.” A notice of appeal is required to be filed
with the clerk of the trial court within thirty days after the date of entry of the judgment or order from
which relief is sought. See Tenn. R. App. P. 4(a). A timely filing of a motion for new trial tolls this
period until entry of the order denying or granting the motions. See Tenn. R. App. P. 4(c). However,
in the present case, Defendant’s notice of appeal was filed more than thirty days after the trial court
orally denied the motion for new trial on the record at the conclusion of the hearing on February 11,
2005. Defendant filed his notice of appeal on March 30, 2005. As discussed in the next issue, there
is some question as to when a valid order denying the motion for new trial was entered, whether by
a minute entry or only by an order entered July 13, 2006 nunc pro tunc for February 11, 2005. In any
event, Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that the notice of appeal
document is not jurisdictional and that timely filing may therefore be waived in the interest of
justice. In the interest of justice, we have determined to exercise our discretion and waive the timely
filing of the notice of appeal, if in fact it was untimely filed, in order to consider Defendant’s appeal
on its merits.

III. Prison Garb and Shackles Worn by Defendant During Trial

        Defendant argues that the trial court violated his constitutional rights by requiring him to
wear his prison uniform and physical restraints during the trial. This Court has recognized that “it
is a violation of due process for a state to compel a defendant to stand trial before a jury in prison
clothes.” State v. Zonge, 973 S.W.2d 250, 256 (Tenn. Crim. App. 1997) (citing Estelle v. Williams,
425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126 (1976)). In Zonge, a panel of this Court
explained that “prison clothing worn at trial is a constant reminder of the defendant’s condition and
presents an unacceptable risk of influencing a juror’s judgment.” Zonge, 973 S.W.2d at 256 (citing
Estelle, 425 U.S. at 504-05, 96 S. Ct. at 1693). This Court further noted that there is no justification
or state interest which would be served by the practice of forcing a defendant to stand trial in his
prison garb. Id. at 256 (citing Estelle, 425 U.S. at 504-05, 96 S. Ct. at 1693). In so doing, we
recognized that there may be tactical reasons why a defendant would choose to be tried in a prison
uniform. Id. at 257 (citing Estelle, 425 U.S. at 504-05, 96 S. Ct. at 1693). Accordingly, this Court
noted that “although the State cannot, consistently with the Fourteenth Amendment, compel an
accused to stand trial before a jury while dressed in . . . prison clothes, the failure to make an
objection . . . to being tried in such clothes, for whatever reason, is sufficient to negate the presence
of compulsion necessary to establish a constitutional violation.” Zonge, at 257 (quoting Estelle, 425
U.S. at 512-13, 96 S. Ct. at 1697).

       Although there is a legal presumption against the necessity of in-court restraints on a
defendant, in some instances, a defendant may be restrained during his or her trial. The burden is
on the State “to show the necessity of any extreme physical measures.” Willocks v. State, 546
S.W.2d 819, 821 (Tenn. Crim. App. 1976). It is within the discretion of the trial judge to determine


                                                   -4-
whether a defendant should be shackled during trial. Id. at 822. Because shackling is considered
inherently prejudicial to a defendant, there must be a clear showing of necessity in the record for this
Court to find that the trial court has not abused its discretion. Id. In order for this Court to conduct
a meaningful review of the trial judge’s actions, the trial court (1) should conduct a hearing, (2) must
state upon the record its reasons for ordering physical restraints, and (3) must give adequate jury
instructions that the restraint of the defendant should in no way affect the jurors’ decision. Id.
Where shackles are used to restrain a defendant before a jury, the shackles must be the least drastic
security measure that will reasonably suffice. Id. “[A] defendant should not be required to wear
prison clothing or be in handcuffs during trial in a courtroom, except insofar as the trial court, in its
sound discretion may find it necessary to prevent escapes, violence or misconduct which would
impede the trial.” State v. Baker, 751 S.W.2d 154,164 (Tenn. Crim. App. 1987).

        In the present case, there was nothing contained in the transcript of the trial proceedings
regarding Defendant having to be physically restrained and having to wear his prison garb during the
trial. However, as noted above, a supplemental record consisting of a statement of the evidence,
signed by the trial judge, which indicated that Defendant made an oral motion concerning this issue
during a hearing in the trial judge’s chambers, was filed and made a part of the record. The
statement of the evidence reflects that Defendant’s counsel requested that the trial court allow
Defendant to wear civilian clothes and have his physical restraints removed at trial. A guard from
the Department of Correction who was attending to Defendant voiced an objection to removing
Defendant’s restraints. This objection was brought to the trial judge’s attention. The trial judge
overruled Defendant’s motion and determined that Defendant would remain in restraints and prison
garb during the trial. The statement of the evidence contains no offer of proof from the State and
no formal findings from the trial court indicating why it was necessary for Defendant to remain in
his prison uniform and also restrained during the trial.

         The Rules of Appellate Procedure provide that where “no stenographic report, substantially
verbatim recital or transcript of the evidence or proceedings is available,” an appellant should
prepare a statement of the evidence or proceedings using the best information available, including
the appellant’s own recollections. Tenn. R. App. P. 24(c). The statement compiled by the appellant
“should convey a fair, accurate and complete account of what transpired with respect to those issues
that are the bases of appeal.” Tenn. R. App. P. 24(c). The appellee, in this case the State, has fifteen
days from the date the statement is filed within which to file any objections to the statement with the
clerk of the trial court. Tenn. R. App. P. 24(c). “Any differences regarding whether the [statement
of the evidence] accurately discloses what occurred in the trial court shall be submitted to and settled
by the trial court regardless of whether the record has been transmitted to the appellate court.” Tenn.
R. App. P. 24(e). Where a statement of the evidence is properly submitted in lieu of a transcript, this
Court may review the statement of the evidence as part of the record on appeal. See State v. Bennett,
798 S.W.2d 783, 789 (Tenn. Crim. App. 1990).

       We note that this Court has repeatedly discouraged “off-the-record” discussions concerning
matters of significance in criminal proceedings because such discussions may preclude appropriate
appellate review. See T.C.A. § 40-14-307(a) (requiring court reporter to “attend every stage of each


                                                  -5-
criminal case”); see also State v. Barnes, No. M2001-00631-CCA-R3-CD, 2002 WL 1358717, at
*6 (Tenn. Crim App., at Nashville, June 24, 2002), perm. app. denied (Tenn. Dec. 2, 2002)
(discouraging “off-the-record” discussions”); State v. Hammons, 737 S.W.2d 549, 551 (Tenn.
Crim. App. 1987) (condemning “off-the-record bench conferences”); State v. James Hall Schlegel,
No. W2000-02597-CCA-R3-CD, 2002 WL 1558640, at *5 (Tenn. Crim. App., at Jackson, Jan. 28,
2002) (no Tenn. R. App. P. 11 application filed) (condemning in-chambers charge conferences);
State v. Blaine M. Wright, C.C.A. No. 03C01-9401-CR-00388, 1995 WL 728535, at *9-10 (Tenn.
Crim. App., at Knoxville, Dec. 11, 1995), perm. to app. denied (Tenn. June 3,1996) (noting the
requirement to preserve for the record all bench conferences). Further, trial counsel should refrain
from such “off-the-record” discussions unless ordered by the trial court to participate. State v.
Hammons, 737 S.W.2d at 551.

         While the hearing in the trial judge’s chambers was not in the presence of the court reporter,
the hearing on the motion for new trial was properly included in the record. Pertinent to this issue
is the following excerpt from the motion for new trial hearing:

       THE COURT:              Overrule your motion. [Defendant’s] hands were not shackled
                               within the trial. And I don’t even recall if he was in prison
                               garb or in street clothes at the time of his trial. We might
                               inquire of [his trial counsel] Mr. Booher.

       MR. HILL:               Mr. Booher, he was not in - - what was he in?

       MR. BOOHER:             Your honor, I can tell you, he was in the TDO[C] outfit, the
                               blue chambray shirt and the blue jeans. And if I can remind
                               the Court, I did ask if he could change into his clothes that
                               day. And the guards that were with him strongly objected to
                               that. So we went to trial with him in his TDO[C] shirt and
                               jeans.

       THE COURT:              But his hands were not shackled during the trial.

       MR. BOOHER:             Yes, Your Honor, they were.         They had him in closed
                               shackled.

       THE COURT:              His feet were, but I don’t recall his hands.

       MR. BOOHER:             He had the leg chains on. And I’ll be truthful, I don’t think
                               that was a problem. And certainly he didn’t have any need to
                               use his hands during the trial, but they were shackled.

       THE COURT:              All right.



                                                 -6-
       MR. HILL:               And I assume his hands were on that table, too, where the
                               jurors could look at him.

       THE COURT:              Or maybe under. But I didn’t recall his hands being shackled.
                               Anyway, I overrule your motion for new trial.

       MR. HILL:               Very well, Your Honor.

                          - - END OF REQUESTED PROCEEDINGS - -

        Upon reviewing the record, it was discovered that the appellate record did not contain an
order denying Defendant’s motion for new trial. An appellate court clerk made an inquiry to the trial
court clerk regarding the existence of such an order, and was informed that there was a minute entry
reflecting that Defendant’s motion for new trial had been denied. On July 6, 2006, this Court entered
an order for the trial court clerk to supplement the appellate record with the minute entry stating that
the motion for new trial had been denied. In response, the trial court entered an order on July 13,
2006, denying the motion for new trial nunc pro tunc for the day the motion for new trial was argued,
February 11, 2005.

        The nunc pro tunc order denying the motion for new trial contained detailed findings of fact
made by the trial court. These findings concern the basis of the trial court’s decision to overrule
Defendant’s objection to wearing his physical restraints during trial. Interestingly, the nunc pro
tunc order has absolutely no findings of fact regarding the issue of Defendant being forced to wear
his prison garb during the trial. With respect to the “physical restraint” issue, the order provides as
follows:

       2.      Restraints in place during trial – There is a legal presumption against the
               necessity for in-court restraint during jury trial. There must be a clear
               showing of necessity for this action by a court due to less drastic measures
               not being sufficient to adequately control the defendant. This defendant has
               had to be restrained by Tennessee Department of Corrections [sic]
               transportation Officers during Court appearances in the several cases he has
               had in this Court. The use of a “shock belt” has been necessary on more than
               one occasion when he has been in Court. He has attempted to assault his own
               attorney while in the courtroom and had been restrained by Court or Police
               personnel. Numerous attorneys have asked to be relieved by this court due
               to defendants’ [sic] abusive or threatening behavior. This Court held a brief
               meeting with counsel in chambers to discuss defendant’s security situation
               in the courtroom. Based on all the forgoing factors, the Court decided that
               it was necessary to leave ankle restraints in position under counsel table.
               Defendant did not testify as a witness, and was not required [to] walk in the
               jury’s presence. No prejudice occurred to defendant during trial.



                                                  -7-
        A comparison of the nunc pro tunc order to the transcript reveals that the factual detail found
in the nunc pro tunc order is not found in the transcript of the trial court’s hearing on the motion for
new trial. Following the hearing, the trial court initially stated that Defendant was not “shackled”
with restraints during the trial and that he could not recall if Defendant wore his prison garb. The
trial court asked Defendant’s trial counsel, Mr. Booher, for clarification. The motion for new trial
transcript reflected that Mr. Kent Booher represented Defendant at trial and Mr. Charles Hill
represented Defendant on his motion for new trial. The transcript also contained the brief arguments
of counsel, the above quoted statement from Mr. Booher declaring that Defendant was in fact
wearing his shackles and prison garb at trial, and the trial court’s denial of the motion for new trial
which lacked any detailed factual findings.

         Even accepting arguendo that there was a valid basis for Defendant to be restrained during
the trial, there is nothing in the record to show that the trial court gave proper instruction to the jury
about the restraints. Willocks v. State, 546 S.W.2d 819, 822 (Tenn. Crim. App. 1976). Furthermore,
the undisputed fact is that the record does not reflect any valid reason to force Defendant, over his
objection, to wear his prison garb during the trial. Id. Accordingly, Defendant is entitled to relief
on this issue, his conviction is reversed, and the matter is remanded for a new trial.

IV. Sufficiency of the Evidence

       Although we must reverse the conviction and remand the case for a new trial, we will address
Defendant’s challenge that the evidence was insufficient to sustain the conviction of coercion of a
witness. We will do so in the event of further appellate review, and because if this issue is
meritorious, the conviction must be reversed and the charge dismissed. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999).

         Defendant argues that the evidence was insufficient because his statements to Ms. Brewster
were “so amorphous, no rational trier of fact could determine from the words testified to by the
State’s witnesses that Defendant[’]s purpose was to cause false testimony.” He also argues that his
statement contained no clear inference that harm would befall Ms. Brewster if she did not testify
falsely. When the sufficiency of the evidence is challenged, the relevant question is whether, after
reviewing the evidence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956).
Because a verdict of guilt against a defendant removes the presumption of innocence and raises a
presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992).


                                                   -8-
       Tennessee Code Annotated section 39-16-507 (2003) defines coercion of a witness as
follows:

       A person commits an offense who, by means of coercion, influences or attempts to
       influence a witness or prospective witness in an official proceeding with intent to
       influence the witness to:

       (1) Testify falsely;

       (2) Withhold any truthful testimony, truthful information, document or thing; or

       (3) Elude legal process summoning the witness to testify or supply evidence, or to be
       absent from an official proceeding to which the witness has been legally summoned.

T.C.A. § 39-16-507(a)(1)-(3).

        The purpose behind Tennessee Code Annotated section 39-16-507 is to punish persons “who,
through coercion, impair the integrity or availability of witnesses who may be called to offer
evidence at official proceedings.” T.C.A. § 39-16-507, Sentencing Commission Comments.
Coercion is statutorily defined as “a threat, however communicated, to . . . [c]ommit any offense.”
T.C.A. § 39-11-106(a)(3)(A). This Court has previously held that the actions of a defendant may
give rise to an inference of the defendant’s intent to influence a witness. State v. Cedron Orgain,
No. 01C01-9808-CC-00334, 1999 WL 756197, at *3 (Tenn. Crim. App., at Nashville, Sept, 27,
1999) (no Tenn. R. App. P. 11 application filed) (citing State v. Jonathan Moore, No. 03C01-9602-
CC-00057, 1997 WL 65729, at *4 (Tenn. Crim. App., at Knoxville, Feb. 13, 1997) (no Tenn. R.
App. P. 11 application filed)).

        After a thorough review of the record and considering the evidence in the light most
favorable to the State, we conclude that the State met its burden of proof. The evidence sufficiently
supports the jury’s finding that Defendant was guilty of coercion of a witness. The proof at trial
showed that Ms. Brewster was sitting in the Loudon County General Sessions Court waiting to
testify against Defendant in a pending proceeding involving vehicular assault, reckless
endangerment, theft, and assault charges. While Ms. Brewster was sitting in the courtroom,
Defendant, standing in the door of the holding cell, pointed his finger at Ms. Brewster and said, “you
can stop all this. You can change you’re story.” According to the officers who witnessed the
exchange, Defendant’s demeanor was threatening and angry and implied Ms. Brewster would be in
“trouble” if she did not change her story. In addition, Ms. Brewster told officers on the day of the
incident that she was scared to death of Defendant and what he might to do to her. By her own
affidavit, Ms. Brewster swore that Defendant had threatened her and told her to change her story.
See State v. Bobadilla, 181 S.W.3d 641, 644 (Tenn. 2005); State v. Housler, 161 S.W.3d 294, 298
(Tenn. 2005). We conclude that a rational trier of fact could have inferred that Defendant’s actions
were intended to communicate a threat to Ms. Brewster in an effort to coerce her not to testify



                                                 -9-
favorably to the State’s case in the pending assault and theft proceeding. Defendant is not entitled
to relief on this issue.

                                          CONCLUSION

        For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded
for a new trial.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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