                                                                                         11/13/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 July 11, 2017 Session

             STATE OF TENNESSEE v. RICHARD CRAWFORD

                 Appeal from the Criminal Court for Shelby County
                  No. 11-02621       James C. Beasley, Jr., Judge
                     ___________________________________

                           No. W2016-01230-CCA-R3-CD
                       ___________________________________

The Defendant, Richard Crawford, was convicted by a Shelby County jury of especially
aggravated robbery, attempted especially aggravated kidnapping, attempted second
degree murder, and employing a firearm during the attempted commission of a dangerous
felony. On appeal, the Defendant argues that the trial court erred by: (1) determining that
alleged prior bad acts of the victim and another witness were inadmissible for
impeachment purposes; and (2) preventing the Defendant from subpoenaing the victim to
testify a second time about additional prior inconsistent statements. Following our
review, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

Seth M. Seagraves and Michael R. Working, Memphis, Tennessee, for the appellant,
Richard Crawford.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       On April 21, 2011, a Shelby County Grand Jury indicted the Defendant for one
count of especially aggravated robbery, two counts of attempted especially aggravated
kidnapping, one count of attempted second degree murder, and one count of employing a
firearm during the attempted commission of a dangerous felony. The offenses occurred
in December 2009 when the victim, Mike Murfik, was attacked at his home.
       The Defendant filed several pretrial motions, including a motion pursuant to
Tennessee Rule of Evidence 608(b) requesting the admission of certain prior bad acts of
Murfik. In his motion, the Defendant argued that Murfik and his wife, Maria Lopez,
owned a night club called “Club Visions” where illegal activity had taken place,
including the bribery of three former police officers by Murfik and his brother. The
Defendant claimed that this information was “highly probative” of Murfik’s truthfulness.

       At an August 21, 2013 hearing on the motion, the Defendant questioned Murfik
and Lopez about their participation in the bribes and to determine who owned Club
Visions. Murfik testified that he owned the property that Club Visions was located on
and that Lopez owned and managed the business. Murfik acknowledged that he had seen
police officers receive payments and bribes from someone at Club Visions but denied
that he or Lopez paid any of the bribes. Lopez testified similarly and confirmed that she
never bribed a police officer. After this testimony, the trial court denied the Defendant’s
motion because there was no basis to impeach Murfik’s or Lopez’s credibility since they
had denied any responsibility or involvement with the alleged bad acts, and there was no
proof presented otherwise.

        The case proceeded to trial on August 27, 2013, and resulted in a mistrial. On
September 18, 2014, the Defendant, through new counsel, filed a motion requesting the
trial court to reconsider its ruling and to allow the Defendant to again question Murfik
and Lopez about the bribes and their ownership of Club Visions. In his motion, the
Defendant also requested the admission of “extrinsic evidence through both testimony
and legal documentation created by the State proving the perjury and ownership interest
of the victims in Club Visions.” The trial court again denied the motion by written order,
noting that it had previously heard testimony on the issue and that it “did not find by clear
and convincing evidence that the victim had committed a crime, a wrong, or a bad act.”
The court also found that the danger of unfair prejudice outweighed any probative value.
The following evidence, as relevant to this appeal, was presented at the Defendant’s
second trial.

         Trial. Mike Murfik testified that he lived at 4389 Whispering Bend in Memphis
and that he was working on the evening of December 7, 2009. Murfik recalled leaving
work around 10:00 p.m. and calling his wife before he arrived home. Murfik explained
that he always called his wife on his way home because he had been robbed in his
driveway before and so his wife “would have the gun ready waiting for [him] to get home
. . . [i]n the top window . . . upstairs.” After Murfik parked and exited his car, he saw
“one person . . . running towards [him] with a gun” and another person coming towards
him “from right behind [his] garage.” Murfik testified that the first person demanded
Murfik’s car keys and told the second person to “get the b**** in the car” and “shoot
[Murfik].” Murfik said he “let go of the keys” and wrestled with the first attacker for
                                            -2-
control of the gun. While he was wrestling for the gun, Murfik testified that he heard
gunshots and saw his wife shooting. Murfik said that his wife shot the first attacker who
“fell down” and then “jumped up and ran.”

        Murfik testified that he was shot in the leg and that he did not return to work for
“[a]bout six months” due to his leg injury. While he was in the hospital, Murfik
identified the Defendant as the first attacker in a photographic lineup. Murfik said that he
could identify the Defendant as the first attacker because his “hoodie fell off his head”
and because there were street lights and motion lights near his house. Murfik also
identified the Defendant at trial.

        On cross-examination, Murfik acknowledged that he described the Defendant’s
gun as a silver semi-automatic pistol on direct examination and that he had described the
gun as a revolver at the first trial. He also agreed that he gave different estimates at the
first and second trials of how many gunshots he heard. On redirect, Murfik further
admitted that he told officers the day after the attempted robbery that he handed the
Defendant his car keys instead of dropping the keys, as he testified on direct examination.
Murfik agreed that his prior testimony about the car keys, given about twelve hours after
the incident, would be more accurate than his trial testimony. Defense counsel chose not
to recross Murfik after the State’s redirect examination.

        Maria Lopez, Murfik’s wife, largely corroborated her husband’s testimony. Lopez
testified that Murfik called her on his way home from work and that she saw two men
with guns ordering Murfik to get into his car. Lopez then “ran upstairs and opened the
window and looked, waited for the opportunity to be able to defend [Murfik] from
upstairs . . . because [the two men] were both kind of wrestling with [Murfik] in the front
of the yard.” When one of the attackers stepped away, Lopez shot him, and he fell to the
ground. The other attacker then ran away. Lopez testified that she heard “maybe twenty
or more” shots and that she fired “two or three” shots before her gun jammed. Lopez
informed the officers when they arrived that she had shot one of the attackers. Lopez
testified that Murfik went back to work after “maybe a week” but that “he needed
assistance . . . because he couldn’t stand for long periods of time.” Lopez identified the
Defendant in a photographic lineup and at trial as the attacker that she shot.

       After Lopez’s testimony concluded and the jury was dismissed for the day, the
State informed the trial court that the Defendant had served Murfik with a subpoena in
court immediately after he testified in order to recall and question him about additional
prior inconsistent statements. Defense counsel stated that he “neglect[ed] to ask Mr.
Murfik some questions about his prior testimony at the prior trial” and that “Mr. Murfik
hasn’t had a chance to review his testimony which would of [sic] taken a much more
substantial time.” Additionally, defense counsel said that Murfik’s prior sworn testimony
                                           -3-
was substantive evidence that could be admitted as an exhibit and that he should be
“entitled to use it in [his] case-in-chief.” The trial court took the matter under
advisement, and the Defendant did not raise the issue again until the State concluded its
proof. At that time, defense counsel informed the trial court that, instead of recalling
Murfik, the Defendant wanted to “admit as a self-authenticating non-hearsay exhibit his
prior testimony from the first trial on August 27, 2013.” The trial court denied the
Defendant’s request and concluded that it was improper “to introduce his prior testimony
. . . simply for the purpose of impeachment after the witness has already testified.” The
trial court also noted that the Defendant had already presented other prior inconsistent
statements to Murfik on cross-examination. The court offered the Defendant an
opportunity to tender the impeaching evidence to preserve the issue for appeal; however,
the Defendant did not tender or offer any proof.

        Quentin Hogue, an officer with the Memphis Police Department, testified that on
December 7, 2009 around 11 p.m. he responded to a call from Delta Medical Center that
a patient had arrived with a gunshot wound. Officer Hogue met with the patient, who
was later identified as the Defendant. The Defendant told Officer Hogue that he was the
victim of a shooting that occurred at Delta Road when he was visiting his girlfriend. The
Defendant did not give a last name, address, or any other identifying information about
his girlfriend or his friend “Zoe,” who he said drove him to see his girlfriend, and Officer
Hogue was not able to identify either person. Officer Hogue also confirmed that there
was no other report of shots fired in Memphis or Shelby County that night and said that
the Defendant’s story “didn’t add up.”

       Monica Humphrey, the Defendant’s wife, testified that the Defendant left their
house around 8:00 p.m. on December 7, 2009, and did not return. She learned later that
night that the Defendant was at Delta Medical Center with a gunshot wound. Humphrey
said that she did not know anyone named “Zoe” and that the Defendant told her he was
shot while “messing around with someone’s wife[ ] [or] girlfriend” but did not reveal the
wife or girlfriend’s name.

       Shelby County Sergeant Jason Valentine testified that he participated in the
investigation of the attempted robbery and shooting at Whispering Bend and also
interviewed the Defendant at Delta Medical Center. The Defendant told Sergeant
Valentine a similar story about his friend “Zoe” driving him to see a female friend named
“Meka.” The Defendant claimed that he was shot shortly after exiting the car and that
“Zoe” took him to the hospital. Sergeant Valentine was also never able to identify “Zoe”
or “Meka.” Sergeant Valentine also testified that there were several other hospitals closer
to the neighborhood where the Defendant claimed he was shot and that Delta Medical
Center was only ten minutes from Whispering Bend.

                                           -4-
       The Defendant presented testimony from Trini Dean, a Sergeant with the Shelby
County Sherriff’s Office, who testified that he was the lead detective investigating the
attempted robbery at Whispering Bend. On the night of the incident, Sergeant Dean
interviewed Murfik, who said he was approached by two men at his house and that he
struggled with one of the men for his gun. On cross-examination, Sergeant Dean recalled
that Murfik said the two men shot at him before his wife started shooting. Murfik also
told Sergeant Dean that he gave the two men his keys after the struggle. In a photograph
of Murfik’s house, Sergeant Dean identified broken glass and a bullet hole in a window
on the first floor, which he noted could not have been caused by Lopez, who was
shooting from a second floor window. Sergeant Dean also identified the Defendant in a
surveillance video from Delta Medical Center.

       At the conclusion of the proof, the jury found the Defendant guilty as charged. At
the April 25, 2016 sentencing hearing, the Defendant testified and made an allocution.
The Defendant told the trial court that he was “guilty of participating in this crime.” The
Defendant also stated that he “fired the shot [at Murfik] and it was in a lower leg, a
warning shot.” However, he also maintained that he was not the suspect that struggled
with Murfik. The trial court merged the Defendant’s two attempted especially
aggravated kidnapping convictions and imposed an effective sentence of thirty-seven
years’ confinement.

        The Defendant filed a motion for new trial on April 29, 2016. A hearing on the
motion took place on May 23, 2016, and the trial court issued a written order denying
relief the same day. After the denial of his motion for new trial, the Defendant filed a
timely notice of appeal on June 3, 2016.

                                       ANALYSIS

       On appeal, the Defendant argues that the trial court erred by: (1) determining that
alleged prior bad acts of Murfik and Lopez were inadmissible for impeachment purposes;
and (2) preventing the Defendant from subpoenaing the victim to testify a second time
about additional prior inconsistent statements. The State responds that the Defendant’s
issues are waived and that, waiver notwithstanding, the Defendant is not entitled to relief.

        I. Impeachment of Murfik and Lopez. First, the Defendant contends that the
trial court erred by refusing to allow the Defendant to impeach Murfik and Lopez with
“evidence of their involvement in bribing local police” pursuant to Tennessee Rule of
Evidence 608(b). He also claims that the trial court erred by failing to conduct a jury-out
hearing pursuant to Rule 608(b), for not allowing trial counsel to make an offer of proof
on the issue until the motion for new trial, and for basing the court’s ruling on Tennessee
Rule of Evidence 404(b), not Rule 608(b). The State responds that the Defendant’s
                                           -5-
arguments regarding the impeachment of Murfik and Lopez are waived because the
motion for new trial was based on Rule 404(b), not Rule 608(b), and because the
Defendant has provided an inadequate record on appeal. We agree with the State.

        Before the Defendant’s first trial, the Defendant filed a “motion for an out of court
hearing pursuant to Tennessee Rules of Evidence Section 608(b)” to “determine the
admissibility of prior bad acts” of Murfik. Subsequently, the Defendant’s original
counsel withdrew and his new counsel later filed a motion to reconsider the 608(b)
motion but titled his motion as “relating to Tennessee Rule of Evidence 404(b)” as well
as “Rules 608 and 613.” The trial court’s order denying the motion to reconsider solely
referenced Rule 404(b), and it is not clear from the record provided on appeal whether a
hearing was held on the motion.1 At trial, the Defendant renewed his objection to the
trial court’s prior ruling; however, the Defendant only relied on Rule 404(b) and based
his objection on entirely different factual grounds.2 In his motion for new trial, the
Defendant solely relied on Rule 404(b) and made no argument pursuant to Rules 608(b)
or 613. Likewise, at the motion for new trial hearing, the Defendant continued to
reference only Rule 404(b) and, thus, the trial court denied the motion for new trial solely
based on Rule 404(b).

       Tennessee Rule of Appellate Procedure 3(e) states that “no issue presented for
review shall be predicated upon error in the admission or exclusion of evidence . . . or
other ground upon which a new trial is sought, unless the same was specifically stated in
a motion for new trial; otherwise such issues will be treated as waived.” The rule
requires that issues presented in the motion for new trial be “specified with reasonable
certainty so as to enable appellate courts to ascertain whether the issue was first presented
for correction in the trial court.” Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007)
(citing State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987)). “[A]ppellate
courts should review a motion for new trial in the light most likely to preserve the issue
alleged, although courts cannot create an error where none has been legitimately
preserved.” Fahey v. Eldridge, 46 S.W.3d 138, 146 (Tenn. 2001). The Tennessee
Supreme Court explained:


        1
          The trial court’s order denying the Defendant’s motion to reconsider states that “[t]his matter
came on to be heard on a request by the [D]efendant to question the victim in this case about a prior
incident.” However, it is unclear whether the court is referring to the original Rule 608(b) hearing on
August 21, 2013, or to an additional hearing that is not documented in the record provided on appeal.
        2
          The Defendant “renew[ed] [his] request for impeaching conduct” of Murfik to admit a videotape
allegedly showing Murfik standing at work after he was shot. The video was meant to impeach Murfik’s
testimony that he could not stand for six months after he was shot. The trial court allowed defense
counsel to question Murfik about the extent of his injury and when he returned to work, however, defense
counsel conceded that he was “going to stay away from it” and did not question Murfik on the issue.
                                                  -6-
        Before an issue can be properly preserved in a motion for new trial under
        Rule 3(e), a well-pleaded motion should (1) allege a sufficient factual basis
        for the error by setting forth the specific circumstances giving rise to the
        alleged error; and (2) allege a sufficient legal basis for the error by
        identifying the trial court’s claimed legal basis for its actions and some
        articulation of why the court erred in taking such actions.

Id.

        We conclude that the Defendant waived this issue because it was not adequately
preserved in his motion for new trial. In the motion, he claimed that “[t]he [t]rial [c]ourt
denied the defense impeachment of victims Mike Murfik and Maria Lopez pursuant to
Rule 404(b)” and that “[t]he [t]rial [c]ourt denied the defense ability to impeach the
victims Mike Murfik and Maria Lopez pursuant to Rule 404(b), and in relation to their
truthfulness.” The Defendant does not mention Rule 608 anywhere in his motion for new
trial but contends on appeal that “[t]he term[ ] ‘denied the ability to impeach’ clearly
refers to the [t]rial [c]ourt’s refusal to hear motions regarding Rules 608 and 613.” We
disagree that this phrase “clearly” implies the legal grounds on which the Defendant
attempts to rely, particularly considering that, at the motion for new trial hearing, the
Defendant presented his argument to the trial court solely on Rule 404(b) grounds.
Additionally, the Defendant’s pretrial objections to the exclusion of the impeachment
evidence on Rule 608 grounds do not obviate Tennessee Rule of Appellate Procedure
3(e)’s requirement that grounds be “specifically stated” in a motion for new trial. To the
extent the Defendant attempts to argue different grounds based on the same facts, the
issue is waived. 3 See Tenn. R. App. P. 3(e).

        Waiver notwithstanding, although the Defendant claims that “the [trial] court
refused to conduct a hearing” pursuant to Rule 608(b), the record clearly shows that the
trial court held an evidentiary hearing on the Defendant’s original Rule 608 motion. The
record does not show, and the Defendant provides no proof, that he requested an
additional hearing on his motion to reconsider.

        The Defendant also falsely asserts that the trial court “would not allow subsequent
trial counsel to offer any proof on the [Rule 608] issue until the [m]otion for [n]ew trial.”
The Defendant argues that he wanted to present “different evidence from the evidence
introduced by prior counsel.” However, the record shows that the trial court explicitly

        3
          The Defendant also argues in the conclusion section of his brief that the trial court’s denial of
the impeachment evidence violates the confrontation clause of the Sixth Amendment. The Defendant did
not articulate this argument elsewhere in his brief or include the issue in his motion for new trial or in the
statement of the issues in his appellate brief. Accordingly, this argument is also waived. See Tenn. R.
App. P. 3(e).
                                                    -7-
offered the Defendant an opportunity to tender the alleged new impeachment evidence at
trial and to mark it for the record in order to preserve the issue for appeal. The record
further shows that the Defendant did not take advantage of the court’s offer and did not
introduce the alleged new proof.

        We also disagree that the trial court erred by only referencing Rule 404(b) in its
written order denying the Defendant’s motion to reconsider. The Defendant’s motion to
reconsider was based, in part, on Rule 404(b), and there is no indication that the
Defendant requested clarification on the trial court’s ruling. The Defendant is not entitled
to relief on this issue.

        II. Subpoena of Murfik. Next, the Defendant argues that the trial court erred by
refusing to allow him to subpoena Murfik and by “granting the State’s oral request to
quash the subpoena stating that the Tennessee Rules of Evidence do not allow a party to
call a witness simply to impeach them.” Contrary to the Defendant’s argument, the
record shows that the trial court never quashed the Defendant’s subpoena or refused the
Defendant’s request to subpoena or recall Murfik. In fact, the court ruled that Murfik
was “obviously subject to a subpoena” and that the court “d[i]dn’t think it’s improper to
subpoena witnesses under those circumstances and then frankly in that manner.”
However, as the State points out, the Defendant abandoned his request to recall Murfik at
trial and instead argued that, “rather than even delve into the mess of whether the defense
should be entitled to recall Mr. Murfik, I think the defense should be entitled to admit as
a self-authenticating non-hearsay exhibit his prior testimony from the first trial on August
27, 2013.”4 The Defendant fails to advance any additional argument in his brief in
support of this issue. Accordingly, he is not entitled to relief.

                                         CONCLUSION

      Upon review of the record and applicable law, we affirm the judgments of the
Shelby County Criminal Court.


                                                  ____________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




       4
           Although the Defendant references Murfik’s testimony from the first trial in his brief, the
transcript is not included anywhere in the record provided on appeal.
                                                -8-
