          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                        FILED
                        SEPTEMBER 1997 SESSION                     October 17, 1997

                                                                  Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )     NO. 02C01-9611-CR-00418
      Appellee,                 )
                                )     SHELBY COUNTY
VS.                             )
                                )
                                )     HON. CHRIS CRAFT, JUDGE
WILBERT K. ROGERS               )
(A.K.A. PERSON ROGERS),         )     (Second degree murder)
                                )
      Appellant.                )




FOR THE APPELLANT:                    FOR THE APPELLEE:

A. C. WHARTON, JR.                    JOHN KNOX WALKUP
Shelby County Public Defender         Attorney General and Reporter

WALKER GWINN (On appeal)              SARAH M. BRANCH
TONY N. BRAYTON (At trial)            Assistant Attorney General
Assistant Public Defenders            450 James Robertson Parkway
201 Poplar Ave.                       Nashville, TN 37243-0493
Suite 201
Memphis, TN 38103                     WILLIAM GIBBONS
                                      District Attorney General

                                       AMY WEIRICH
                                       Assistant District Attorney General
                                       201 Poplar Ave.
                                       Suite 301
                                       Memphis, Tennessee 38103




OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE




                                    OPINION
      Defendant was convicted by a Shelby County jury of second degree murder

and sentenced to thirty-three (33) years as a Range II, Multiple Offender. Defendant

brings one issue for our review: whether the judgment should be modified to criminal

attempt to commit murder because the victim’s death did not occur within a year and

a day of the alleged mortal wound. We find that the Criminal Sentencing Reform Act

of 1989 abolished this common law defense and affirm the judgment of the trial court.



                                       FACTS



      Although the sufficiency of the evidence is not at issue, a review of the facts

is instructive. Lisa Sledge, paramour of the victim, James Bowdery, testified that on

May 6, 1994, she had been entertaining the victim during the afternoon of the

incident when the defendant arrived to do his laundry, a standard practice. Sledge,

Bowdery, and the defendant played cards and drank until about 8:00 p.m. Sledge

and Bowdery went to sleep in the upstairs bedroom. Defendant was asleep on the

downstairs sofa. At some point before daybreak, the defendant came into the

bedroom asking where his money was, stabbed the victim with a butcher knife, and

left. Ms. Sledge called 9-1-1.

      Dr. Jerry T. Francisco, a pathologist, testified at trial. Although the victim did

not die until August 7, 1995, Dr. Francisco attributed the cause of death to the

wounds sustained on May 7, 1994. His review of the medical records showed that

Bowdery was stabbed in the heart, which caused the heart to stop. As a result, he

developed cerebral hypoxia. This deprivation of oxygen to the brain caused him to

become comatose. He remained in this vegetative state and developed a kidney

infection, which is not unusual for such patients. He died on August 7, 1995,

approximately sixteen (16) months after the defendant had wounded him.

       Defendant presented no proof.



                            COMMON LAW DEFENSE



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              The sole issue on appeal is whether the second degree murder

conviction must be modified since the victim did not die within a year and a day of the

infliction of the mortal wound. The “year-and-a-day rule” was the common law

requirement. See Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907); Cole v.

State, 512 S.W.2d 598 (Tenn. Crim. App. 1974).

       This Court has considered this question previously in State v. Ruane, 912

S.W.2d 766, 774 (Tenn. Crim. App. 1995), and held the Criminal Sentencing Reform

Act of 1989 abolished common law defenses. Affirmative defenses are listed by

statute, and the “year-and-a-day rule” is not listed among those defenses now

available. Id.; Tenn. Code Ann. § 39-11-204. Furthermore, Tenn. Code Ann. § 39-

11-203(e)(2) specifically abolishes all common law defenses.           We, therefore,

conclude the “year-and-a-day rule” defense is no longer viable in Tennessee.

       Defendant’s contention that the abolition of this defense is an ex post facto

violation is also without merit. Tenn. Code Ann. § 39-11-203 went into effect in 1989.

The mortal wound was inflicted in 1994.



                                   CONCLUSION



       The judgment of the trial court is affirmed in all respects.




                                                  JOE G. RILEY, JUDGE




CONCUR:




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JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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