         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 16, 2005

           STATE OF TENNESSEE v. ALBERT JAMES SAAVEDRA

                 Direct Appeal from the Circuit Court for Humphreys County
                             No. 10385 Robert E. Burch, Judge



                     No. M2004-02889-CCA-R3-CD - Filed March 13, 2006


The Defendant, Albert James Saavedra, was indicted on one count of first degree murder and one
count of attempted first degree murder. He was convicted for the lesser-included offense of
voluntary manslaughter and for the indicted offense of attempted first degree murder. The trial court
reduced the conviction for attempted first degree murder to attempted second degree murder, finding
that the evidence was insufficient to prove that the Defendant acted with premeditation. The trial
court also sentenced the Defendant to an effective sentence of fourteen years in the Department of
Correction. The Defendant appeals, contending that: (1) the evidence is insufficient to sustain his
conviction for attempted second degree murder; (2) the trial court erred by not instructing the jury
on aggravated assault as a lesser-included offense of attempted first degree murder; (3) the trial court
erred when it took his motion for judgment of acquittal under advisement and when it denied this
motion with respect to attempted second degree murder; and (4) the trial court erred when it denied
his Rule 33(f) motion. Finding that there exists no reversible error, we affirm the judgments of the
trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODALL, JJ., joined.

William B. “Jake” Lockert, III (at trial and on appeal) and Haylee Bradley (at trial), Ashland City,
Tennessee, for the appellant, Albert Saavedra.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Dan Mitchum Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION
                                               I. Facts

       This case arises from the death of Danny DeBerry and the stabbing of his wife, Amanda Joy
DeBerry, which occurred during the early morning hours of November 15, 2002. At the Defendant’s
trial, the following evidence was presented:

        On November 14, 2002, Rebecca Dyal was working from 3:00 p.m. until approximately 1:30
a.m. at Montana’s Saloon, a bar that serves beer only and is located in New Johnsonville. Between
9:00 p.m. and 10:00 p.m., she saw a man that she did not recognize, but later identified as the
Defendant, come into the bar alone, and she noted that he was “[a] rather large guy” who wore a
“darker flannel” shirt, jeans, and a baseball cap, and had a gap between his front teeth. Dyal recalled
that the Defendant began drinking Mike’s Hard Lemonade, and he played pool the majority of the
time that he was there, which she noticed because he played “one-handed.” Dyal recalled that, at
some point, the Defendant left the bar, but he returned approximately fifteen minutes before the bar
closed, and she served him a drink. Later, Mr. and Mrs. DeBerry came into the bar and they were
talking to the Defendant. Dyal said that, mostly, the Defendant and Mr. DeBerry were talking and
they seemed “[l]ike they had known each other and they were friendly,” but Mrs. DeBerry engaged
in the conversation only “[a] little bit . . . .” Dyal testified that, at some point, she heard an argument
between Mr. and Mrs. DeBerry and told them that they were going to have to stop arguing or leave
the bar, and the Defendant told her that they were okay and were going to work things out. The
Defendant and the DeBerrys were the last patrons to leave the bar, and, after they left, Dyal saw them
standing and talking in the parking lot near two vehicles. She saw a compact, teal green or sea foam
green car similar to a Geo with two bodies in it and a white boxy vehicle, similar to a Volvo, but she
could not see if there was anyone in the white car. When Dyal left the bar between 1:40 a.m. and
1:50 a.m., the two cars were gone.

       Dyal identified the Defendant in court and said he looked different in court than on the night
of November 14, 2002, because it looked like he had lost a lot of weight and both his hair and facial
hair were different. When she was contacted by police to view a photographic lineup, she was
unable to identify the Defendant’s picture in the lineup, but she agreed that, despite this, she had no
doubt that the Defendant was the man that she saw at the bar that evening with the DeBerrys.

        On cross-examination, Dyal recalled that the Defendant and the DeBerrys all appeared to be
intoxicated, and she heard Mr. DeBerry ask the Defendant if he wanted to go drinking, and there was
some discussion about going to Jackson. Dyal agreed that she saw no indication that the Defendant
was fighting or arguing with Mr. DeBerry. She testified that, when the DeBerrys were arguing, the
Defendant told her nicely that the DeBerrys were married, that the three had just come from The
Sidetrack,1 another bar across the street, and that they could take care of things on their own. Dyal
said that she did not know what the DeBerrys were arguing about, and the confrontation between the
two was not physical.

        Dennis Brown recalled that, on November 14, 2002, he was at The Sidetrack with his
girlfriend, Pam Board, where he knew almost everyone that came into the bar. He remembered that,


         1
           W e note that, in the record, Mrs. DeBerry refers to this establishment as “Sidetrack bar.” Other witnesses
refer to the bar as “The Sidetrack.” For consistency, we will always refer to this bar as “The Sidetrack.”

                                                          -2-
during that evening, he was sitting at the bar when he saw the Defendant come into the bar alone.
Brown noticed the Defendant because he was “a pretty big guy,” weighing “at least” 240 or 250
pounds. Brown recalled that the Defendant was wearing a light colored shirt, either blue or white,
a baseball cap, jeans and work boots. When the Defendant came into the bar, the Defendant ordered
drinks for everybody in the bar, but Brown did not realize this until the bartender gave him a beer
and said that it was from “Will,” pointing to the Defendant.

         Brown recalled that, a little later, the DeBerrys, whom he knew, came into the bar, and Mrs.
DeBerry was sitting at the end of the bar playing a video game while Mr. DeBerry was playing pool.
Brown saw the Defendant lean across a barstool to talk to Mrs. DeBerry, and it appeared to him that
the Defendant was flirting with Mrs. DeBerry. Brown said that Mrs. DeBerry acknowledged the
Defendant but kept playing her game. At one point, Brown played pool with the Defendant, who
shot one-handed and was very good at pool. The Defendant told him that he was either from Bangor,
Maine, or had just left work there, and he was in New Johnsonville looking for work. The Defendant
continued to buy drinks for everyone and was still at the bar when Brown left around 12:30 a.m.
Brown agreed that he later learned that the DeBerrys had been stabbed, and the police asked him to
view a photographic lineup, during which he picked out the Defendant’s picture from two lineups
as being the man he saw at The Sidetrack that evening. On cross-examination, Brown testified that
he had known Mr. DeBerry all his life, and he knew Mr. DeBerry’s temperament. Brown admitted
that he told a TBI agent that the Defendant was “handsy” with Mrs. DeBerry, and, had Mr. DeBerry
seen this, he would have confronted the Defendant about that regardless of the Defendant’s size.
Brown agreed that he did not know that Mr. DeBerry was manic depressive or that he was not taking
medication on the night of this incident.

       Pamela C. Board testified that she went to The Sidetrack on November 14, 2002, with
Brown, and she noticed the Defendant come into the bar that evening because she had never seen
him before. Board said that the Defendant, who introduced himself as “Will,” came into the bar, set
a $100 bill on the bar, and told the bartender that he wanted to buy the rounds until it was gone.
Board recalled that the Defendant was wearing a baseball cap, a white plaid shirt, and blue jeans.
Board testified that Mr. and Mrs. DeBerry were also at the bar that evening, but she did not recall
whether they arrived before or after the Defendant. Board noticed the Defendant play pool because
he only used one hand while playing, and she had never seen that before. She also noticed the
Defendant talking to Mrs. DeBerry but did not find that unusual. Board recalled that she identified
the Defendant’s picture from two different photographic lineups. On cross-examination, Board
agreed that the Defendant was being friendly with everyone. Board did not see Mr. and Mrs.
DeBerry arguing, and she did not see them embracing or hugging either.

         Mrs. DeBerry testified that, in November 2002, because she and Mr. DeBerry were having
financial difficulties, they had recently moved from Jackson, Tennessee, with their two youngest
daughters into a house that they recently inherited in New Johnsonville, Tennessee. Mrs. DeBerry
testified that she and Mr. DeBerry had been married for twenty-five years, and, while they loved each
other very much, they had difficulties “like all married couples.” Mr. DeBerry had a problem with
alcohol, for which he had received treatment a couple of times. Mrs. DeBerry became dependant


                                                -3-
on a pain medication, Hydrocodone, and she was terminated from her job when she entered treatment
for her addiction. Mrs. DeBerry said that the stress of her losing her job, the financial difficulties,
and her addiction took its toll on Mr. DeBerry, and he was diagnosed as manic depressive in 2001.
When Mr. DeBerry was “manic” he would talk long distance on the phone for long periods of time,
spend money on things that “didn’t make any sense,” and leave the house and not come home for
a whole day, which was unusual. Mrs. DeBerry recalled that Mr. DeBerry did not like the
medication that he took for this ailment because it made him sleepy, feel sick, and gain weight.

        The week before November 14, 2002, Mr. DeBerry left the DeBerrys’ home in New
Johnsonville, and Mrs. DeBerry did not know where he was until she later learned that he was in
Jackson. She said that during or shortly after this he was arrested for stealing their neighbor’s car.
Mrs. DeBerry borrowed money to pay Mr. DeBerry’s bond, and he came home with her, but this
situation caused some friction between them. Mrs. DeBerry said that in the next few days she and
Mr. DeBerry cashed in a 401(k) and received $6,400, which helped their financial situation. She said
that things seemed to have turned around, and they bought a used Volvo in part because Mr.
DeBerry’s truck had been stolen.

        On November 14, 2002, Mr. and Mrs. DeBerry2 went out to dinner with two of their
daughters to celebrate them getting a new car, Mr. DeBerry’s obtaining a new job, and the family
being together. Mrs. DeBerry said that everyone was in a good mood at dinner, and they left dinner
around 8:30 p.m. When they returned home, Mr. and Mrs. DeBerry began talking about where Mr.
DeBerry had been while in Jackson and what he had been doing. Mr. DeBerry mentioned a woman
that Mrs. DeBerry knew of but had previously thought that Mr. DeBerry only met when he was
trying to find out who stole his truck. From what Mr. DeBerry told her, Mrs. DeBerry assumed that
Mr. DeBerry had met this woman before his truck was stolen and that the two had a romantic
relationship. Mrs. DeBerry said that she got upset and cried, and the couple argued. She wanted to
get away from the house because she was angry, and, after visiting some relatives, she decided to go
see her brother who she thought was at The Sidetrack. She went home, changed clothes, got Mr.
DeBerry, and went to The Sidetrack. Mrs. DeBerry said that she told her daughters that she and Mr.
DeBerry were going to talk because she did not want them to know that they were going to a bar.

        When Mrs. DeBerry arrived at The Sidetrack, she took a seat at the bar and saw the
Defendant who was sitting towards the end of the bar. The Defendant moved down a seat so that
Mrs. DeBerry could sit next to Mr. DeBerry. Shortly after they sat down, Mrs. DeBerry heard Mr.
DeBerry comment on what the Defendant was drinking, which was Mike’s Hard Lemonade, saying
“that’s pretty good stuff isn’t it?”, and the Defendant responded “yes.” Mrs. DeBerry said that she
was pretty quiet while at the bar, but she talked to some people that she knew.

       Mrs. DeBerry recalled that Mr. DeBerry played pool, and she noticed the Defendant playing
pool using only one hand. Mrs. DeBerry recalled that she talked to the Defendant, whom she knew


         2
         Because both victims and their daughters all have the same last name, we will refer to the two victims as
Mr. and M rs. DeBerry and to the daughters by their first names, Jenna and Danielle.

                                                        -4-
as “Will,” when he came to sit next to her at the bar. She said that they discussed their families, and
the Defendant asked if she could guess his age and showed her his driver’s license, which she
recalled listed him as being born in 1970. The Defendant told her that he was here from Maine
working for “TVA,” and his work involved the environment. Mrs. DeBerry said that she told the
Defendant that she was married to Mr. DeBerry, and the Defendant responded, “I like him.” When
she asked the Defendant what he meant, the Defendant explained “he’s just kind of laid back, just
his demeanor.” The Defendant told her that he liked her eyes and that she looked like she had a halo
over her head. She said that she was flattered, but she thought that it was strange that he said those
things when she was sitting at a bar with a beer and a cigarette. Mrs. DeBerry said that, at one point,
she was turned on her stool looking at her husband, and the Defendant put his hand on her leg and
turned her stool so that she was facing him. Throughout the evening, Mrs. DeBerry did not talk to
Mr. DeBerry “a whole lot” because she was still upset with him.

        Mrs. DeBerry recalled that they did not leave the bar until it closed at around 1:00 a.m. Mrs.
DeBerry recalled that, when the bar closed, she and Mr. DeBerry walked out, and she went to get in
the car. When she looked, Mr. DeBerry was going across the street towards Montana’s, another bar,
and she called to him “Let’s go home.” He responded that he wanted to go to Montana’s to see
about playing some more pool. Mrs. DeBerry drove over to Montana’s, and Mr. DeBerry had
already gone inside, and she could see him going into the bathroom. She said that she waited for him
to come out, and she loudly told him “let’s go, let’s go home.” Mrs. DeBerry agreed that she was
angry and upset, and the bartender told them that they needed to leave because it was time to close.
As she and Mr. DeBerry were leaving, she saw the Defendant sitting at the bar, and Mr. DeBerry
made a comment about how Mrs. DeBerry was upset with him. She agreed that Mr. DeBerry was
joking and making light of the situation because it was not serious. Mrs. DeBerry said that she left
the bar and got into her car, and Mr. DeBerry stopped and talked to the Defendant. Mr. DeBerry
started to get into the passenger’s side of her car when the Defendant came to her driver’s side
window and asked if he could drive Mr. DeBerry home so that they could have a “man-to-man talk.”
Mrs. DeBerry assumed that the Defendant wanted to “help with our marital situation, at the time,
just, you know, us being [in an] argument.” Mrs. DeBerry looked at Mr. DeBerry who indicated that
it would be “okay,” and she told the Defendant that she would follow his car because she was afraid
that Mr. DeBerry would go somewhere else to drink.

        Mrs. DeBerry said that Mr. DeBerry expressed no concern about getting into the Defendant’s
car, which was a small “kind of [] blueish-green turquoise color.” She said that Mr. DeBerry
“befriended everybody. . . . Everybody liked him.” Further, it was not abnormal for someone to
come back to the house with them to talk. Mrs. DeBerry testified that she followed the Defendant’s
car, but she was a little ways behind them because she wanted to drive slowly since she had
consumed three beers. She estimated that she arrived home between 1:30 a.m. and 1:40 a.m., and,
when she arrived at her house, Mr. DeBerry and the Defendant were standing by the side of the
house near the Defendant’s car, which was parked at an angle at the side of the driveway and a little
on the grass. Mrs. DeBerry thought that it was strange that the Defendant did not just pull straight
into the driveway but parked at an angle. She sat in her car and cried a little bit because she and Mr.
DeBerry had not had a chance to talk, which was something that was important to her. After she was


                                                 -5-
there for “just a minute,” Mr. DeBerry came over to the car, opened her door, and said “come on,
baby, let’s go in,” and he carried her over to the door that led inside their garage.

        After Mr. DeBerry carried her to the side door, she went into the house, and he was still
standing at the door near the Defendant. She checked on the girls, who were sleeping in the same
room and then went back to the bedroom that she shared with Mr. DeBerry. She said that she muted
the television, put her purse away, and lay down on the bed. She remembered that she was still
clothed and was crying as she drifted off to sleep. The next thing that she remembered was being
awoken by Mr. DeBerry screaming for her saying, “[H]elp me, Jo, help me.” She said that Mr.
DeBerry sounded very distressed, and she knew that something was wrong. She went to the “garage
room,” and, when she opened the door, she saw Mr. DeBerry and the Defendant struggling over a
spear gun that Mr. DeBerry used to fish. Mrs. DeBerry recalled that there was a lot of blood in front
of the door, and she saw some blood on Mr. DeBerry’s neck and face. She went straight to Mr.
DeBerry, and the Defendant and stepped in between them. She took the spear gun, and Mr. DeBerry
fell back. Mrs. DeBerry described the Defendant, stating, “He just had this wild look on his face,
in his eyes, just . . . like . . . something wild.”

        Mrs. DeBerry testified that she could not understand what could have happened, and she
recalled asking the Defendant “why did you do this? I mean, what happened? . . . I thought you were
our friend.” She remembered the Defendant jabbing or lunging at her, but she did not remember ever
seeing the knife. She tried to reason with the Defendant and screamed at him to leave, mindful of
the fact that she had her two teenage daughters in the house. One of her daughters, Danielle, came
to the door during this time, and the Defendant told Danielle to get back in the house and close the
door. Mrs. DeBerry told Danielle to call 9-1-1. After Danielle went back into the house, the
Defendant turned and started turning the doorknob, and then he left. Mrs. DeBerry then went to her
husband and attempted to talk to him, telling him that she loved him, and then tried to attend to some
of his wounds, which she noticed were severe. She said that Mr. DeBerry’s breath was shallow and
labored. During this, Mrs. DeBerry’s daughter, Jenna, came to the door, and Mrs. DeBerry told her
not to come out there. She heard, and answered, questions that Danielle was relaying to her from
the 9-1-1 operator.

        Mrs. DeBerry said that the EMTs arrived and attended to her husband. She said that she did
not realize that she was hurt until she was standing over the patrol car holding her side and realized
that she had two stab wounds to her side and a cut across her throat. She noticed later that, when the
Defendant cut her throat, he also cut some of her hair near her neck.

         Mrs. DeBerry acknowledged that her medical records showed that, at one point while she was
in the hospital, she said that she felt “guilty” concerning her husband’s death. She explained that she
felt guilty because it was her idea to go out that night. She said that she had gone over so many “ifs”
in her mind, such as if she told Mr. DeBerry that he could not go with the Defendant and had to
come home with her. Further, she agreed that she felt guilty because the last time that she spoke with
her husband she was angry with him. Mrs. DeBerry agreed that the Defendant caused both her and
her husband’s injuries.


                                                 -6-
        On cross-examination, Mrs. DeBerry said that, when she got $6,400 from her 401(k), she and
Mr. DeBerry opened both a savings account and a checking account at First Bank, and they deposited
$3,000 into each account. Mrs. DeBerry was aware that Mr. DeBerry had another account at that
bank that was overdrawn, but she did not know how much money was owed on that account. She
said that they did not deposit any money into Mr. DeBerry’s account that day.

        Mrs. DeBerry did not recall making several statements to police, many of which she made
shortly after she was stabbed, while she was still in the hospital and sedated. She did not remember
telling Officer Edwards that, when she went into the garage room, she saw the Defendant with both
the knife and the spear gun. Mrs. DeBerry testified that she did not recall telling Officer Craig that,
when she went to the garage, she saw her husband bleeding around the chest and upper body. Mrs.
DeBerry also said that she did not recall telling Officer Craig that one of her daughters walked out
and saw her getting attacked by the Defendant. She said that she did not recall telling the EMT who
attended to her that the Defendant and Mr. DeBerry got into a fight at the bar but that they made up,
and the Defendant bought Mr. DeBerry a beer. Similarly, Mrs. DeBerry did not remember telling
the EMT that the Defendant told Danielle to go back inside “unless she wanted some.” She did not
deny that she made any of these statements but said that she did not remember making them.

        Mrs. DeBerry confirmed that she assumed that Mr. DeBerry was having an inappropriate
relationship with a woman from Jackson, Sheila Jones. She reviewed Agent Derrick Jones’s notes
from her interview with him and agreed the notes indicated that she told Agent Jones that she had
found out that Mr. DeBerry was “sleeping” with Sheila Jones, but she did not recall making this
statement. She remembered telling Agent Jones that her argument with Mr. DeBerry was about
Sheila Jones, but she did not recall saying that Mr. DeBerry told her that he was having an affair with
Jones. She also did not remember telling Agent Jones that the Defendant kissed her on the cheek.
Mrs. DeBerry agreed that, if Mr. DeBerry had seen the Defendant flirting with Mrs. DeBerry, kissing
her on the cheek or touching her, he would have reacted regardless of the Defendant’s size. Mrs.
DeBerry agreed that the Defendant was nice to her at the bar and that he was getting along well with
everyone.

       Mrs. DeBerry recalled that she reported Mr. DeBerry missing the week before November 14,
2002, because he had been gone for three days. She agreed that, while he was “missing,” his truck
had been stolen, and Mr. DeBerry thought that a couple of guys, whom he had met in a bar, had
taken his truck because he had sold them scuba tanks that he falsely said had methanol in them.

        Mrs. DeBerry did not recall how long it was between the time that she lay down in her bed
and when she heard Mr. DeBerry calling for her to help him. She did not recall exactly what time
they returned from the bar and acknowledged that, while she may have told Agent Jones that it was
2:00 a.m., it was, more likely, closer to 1:30 a.m. Mrs. DeBerry recalled that Agent Jones requested
the knife blocks from her home, and she recalled that there were two empty spaces, one on each
knife block. She explained that Mr. DeBerry often used her knives in his tackle box or to clean fish
and that they went missing quite frequently. Further, she said that she may have told Agent Jones
that the knives may have been lost in the move from Jackson. Mrs. DeBerry did not remember


                                                 -7-
telling Agent Jones that the Defendant was “poking” at Mr. DeBerry with the spear gun.

        Mrs. DeBerry testified that she and Mr. DeBerry had instances of domestic violence in the
past, explaining that “[v]iolence is a harsh word.” She said they had arguments where she would
slap him or scratch him and sometimes leave a mark and agreed that she was usually the aggressor
and that Mr. DeBerry never hit her. She did not recall, but agreed she may have said to Agent Jones,
that Mr. DeBerry had gotten more physical with her in the last year. She said that she and Mr.
DeBerry would fight more when he was in his manic phase, which would occur when he was not
taking his medication. Mrs. DeBerry admitted that she had written several bad checks within the last
year before testifying and explained on redirect examination that she had had financial difficulties
since her husband’s death, and she never wrote a check knowing that there was not going to be
enough money in her bank; rather, she just kept poor records. She said that her writing bad checks
had no affect on her testimony in court, and she was sure that the Defendant was the man who
stabbed her and her husband.

         On redirect examination, Mrs. DeBerry said that she was hospitalized when she gave
statements to police officers and TBI agents on November 16 and 17. She believed that her medical
records accurately reflected that she was given Ativan and Lorzepam, which were anti-anxiety
depressants. Further, Mrs. DeBerry said that she was given Percocet, a painkiller depressant, and
Oxycodone with Acetaminophen, which is also a depressant. She agreed that all of these drugs
would have an effect on her perceptions and memory. Mrs. DeBerry was certain that the Defendant
was the only person in the room with her husband before she entered. On recross-examination, Mrs.
DeBerry agreed that she was not on pain medications on March 16, which was the date that she gave
her deposition for this case. She agreed that she previously testified that she was stabbed after the
struggle with the spear gun. She then read a portion of her deposition in which she responded to the
question about her two stab wounds by saying, “I feel like my wounds were after [I took the spear
gun].” (emphasis added). The Defendant’s counsel asked what had happened between March 16
and the day of trial to make Mrs. DeBerry convinced that her stab wounds occurred after taking the
spear gun. Mrs. DeBerry said that she recalled that the first thing that she did when she entered the
garage was to step between Mr. DeBerry and the Defendant. Mrs. DeBerry said that she did not
recall telling Agent Jones on December 13, when she was no longer on pain medication, that Mr.
DeBerry had told her that he was sleeping with Sheila Jones and about some incidents involving
Shelia Jones.

        Danielle DeBerry, the victims’ daughter, testified that she was living with her parents on the
night of this incident, and she described them as having a loving marriage. Danielle confirmed that,
the evening of November 14, 2002, she went out to dinner with her mother, father, and sister, and
they returned home between 8:00 and 9:00 p.m. After they returned home, her mother and father
said that they were going to ride around for a little bit and talk, which was not unusual. Danielle and
her sister watched television and then went to bed around 11:30 p.m. The next thing that she
remembered was hearing her mother screaming at around 2:00 a.m. She said that she got up and
went toward the screaming and heard her mother screaming, “Will, we’re your friend” and “Stop,”
and she saw that the door to the garage was closed. Danielle opened the garage door and saw a man


                                                 -8-
that she had never seen before, whom she identified as the Defendant, and she saw her mother
standing near the Defendant. She said that the Defendant told her to close the door, but she just
stared at him. He told her a second time to close the door as he moved toward her, and she closed
the door. She heard her mother yell to her to call 9-1-1. Danielle called 9-1-1 immediately, and,
when she later went into the garage, she saw that her father had been stabbed. She saw a spear gun
lying nearby, which she recognized as belonging to her father. Danielle said that her mother was
holding onto her father’s body telling him to “hang on.”

        On cross-examination, Danielle testified that she never saw the Defendant with a weapon in
his hand, and she never saw the Defendant attack her mother or father. Danielle conceded that her
father was a jealous man, and he would confront someone if he thought that they had been “messing”
with her mother. She agreed that this confrontation would be “worse” if her father was not on his
medication. Danielle also said that a piece of the Defendant’s shirt was attached to the spear gun and
she conceded that she had previously told police that her mother and father went to ride around
because they were upset with each other.

        Jenna DeBerry, also the victims’ daughter, said that the victims had a loving marriage. She
said that, on the night of November 14, 2002, the victims were having a fight, but it was not a bad
fight, and, earlier that evening, they all had gone to dinner and had fun. They arrived back home at
around 8:30 p.m., and she went into the living room to watch television. Her parents left to ride
around and talk, and she went to bed at around 12:00 a.m. The next thing that she remembered was
Danielle leaving the bedroom that they shared and then hearing yelling. She said that she looked out
the door and down the hall, and she saw a man. Jenna heard her mother say, “Will, Will, we’re your
friends,” and, “Why are you doing this.” Jenna saw the man at the back door struggling to get it
open. Then, when he got it open, he went through it, left, and shut the door behind him. She could
not see her mother or her father, so she went into the garage, and she saw her mother holding her
father saying “Danny, . . . I need you. The girls need you.” Jenna said that she saw that her father
was hurt and that Danielle was on the phone. She went back and forth between her mother, who was
in the garage, and Danielle, who was in the living room, to relay information for the 9-1-1 operator.

        On cross-examination, Jenna said that she did not know who let the police into the house
when they first arrived. She said that neither she nor Danielle had blood on their hands at this time.
Jenna remembered that her mother told her to tell the 9-1-1 operator that the person who attacked
her father was driving a blue or bluish-green car. She said that neither she nor Danielle were wearing
shoes, and the pictures of the crime scene showed their bloody, bare footprints. Jenna said that the
Tennessee Bureau of Investigation (“TBI”) never requested their handprints or footprints. Jenna
identified pictures that showed a large area of blood by the front of the door, and she did not know
how the blood got there or on the outside of the door because her father was in the garage. Jenna
told the TBI agents that, at first, she thought that the screaming that she heard was her parents
fighting. She admitted that her father had recently lost the family’s truck, but she did not know how
or why.

       Jeremy Ethridge testified that, on November 15, 2002, he was working as a 9-1-1 dispatch


                                                 -9-
operator when he received a call from Danielle DeBerry at around 2:00 a.m. Danielle told the
operator that someone that her parents knew had entered the home, and Ethridge could hear a lot of
screaming in the background.

        Brian Robinson, who was a deputy for the Humphreys County Sheriff’s Department at the
time of this incident, testified that, on November 15, 2002, at around 2:06 a.m., he heard a call that
there was an altercation in New Johnsonville. The caller said that her father and another man were
fighting, and the caller mentioned blood. The deputy said that he went to the caller’s address, and,
when he arrived, he saw two young girls in the living room, one of whom was on the phone. Deputy
Robinson said that the girls pointed to the garage, where he found Mr. DeBerry on the floor and Mrs.
DeBerry kneeled over him in “hysterics.” He also saw a spear gun lying on the floor, and he did not
see any knives. He said that he did not see Mrs. DeBerry leave the garage until Mr. DeBerry was
loaded into the ambulance. On cross-examination, the deputy said that when he arrived the
DeBerrys’s car was in the driveway, but he did not recall whether another car was also in the
driveway.

        Joseph Duncan, who was an officer with the New Johnsonville Police Department at the time
of this incident, testified that, when he entered the house through the side door located near the
driveway, he noticed that a pool of blood was at the threshold of the door, and he saw that the room
was filled with boxes. Officer Duncan saw Mr. DeBerry lying on the floor and Mrs. DeBerry on her
knees bending over him, holding a t-shirt or towel covered in blood on Mr. DeBerry’s abdomen, and
saying, “Breathe, Danny.” The officer saw a spear gun in the garage near Mr. DeBerry. When the
EMTs arrived, Officer Duncan and another officer had to physically remove Mrs. DeBerry from her
husband so that he could be treated, and he described her as “hysterical.” The officer asked Mrs.
DeBerry if she was injured, and she said that she was not sure, but she thought that she had been
stabbed. Officer Duncan then noticed some wounds on Mrs. DeBerry. On cross-examination, the
officer said that Mrs. DeBerry was not inside the utility room when he found her.

        Brian Baker, an officer with the Humphreys County Sheriff’s Department, testified that,
when he entered the DeBerry home, he saw Danielle from the living room, and, as he went into the
garage, he saw Jenna in the utility room. He went into the garage and saw Mr. DeBerry on the floor
and Mrs. DeBerry kneeling down beside him, “very hysterical.” He said that he and another officer
removed Mrs. DeBerry when the EMTs arrived, and they sat her on some boxes near the door.
Officer Baker noticed that Mrs. DeBerry was also wounded, and she had one wound to her neck and
one to her abdomen. The officer saw a spear gun at the scene but no knives.

        Kevin Duke, who was a volunteer with the New Johnsonville Fire Department at the time
of this incident, said that he was called to this scene as a “first responder” trained to stabilize the
patient until the paramedics or EMTs arrive. When he went into the garage, he saw Mr. DeBerry on
the floor and Mrs. DeBerry kneeling next to him. He described Mrs. DeBerry as in “hysterics,” and
he asked the police officers to remove her so that he could work on Mr. DeBerry. The officer
described Mr. DeBerry’s physical condition, saying that he had labored breathing and only a faint
pulse. Mr. DeBerry had a large gaping wound to his neck and four to five stab or puncture wounds


                                                 -10-
to his abdomen, as well as numerous cuts along his arms. On cross-examination, Duke testified that,
since this crime, he has assisted the Defendant with reading and spelling. He said that the Defendant
needs assistance in these areas.

         Two EMTs, Jan Cramer and Travis Monsue, responded to the crime scene. Cramer said that,
as soon as they entered the doorway, they slipped in large amounts of blood on the floor. Cramer
testified that they immediately went to Mr. DeBerry, and she thought that he was dead, but they
carried him to the ambulance and performed CPR on him until they reached the hospital. She said
that Mrs. DeBerry was screaming “help him, help him.” Monsue saw Mr. DeBerry lying on the
floor, and Mrs. DeBerry was hysterically screaming at them to help him. He said that he stepped on
the spear gun as he was trying to get to Mr. DeBerry. Monsue said that they grabbed Mr. DeBerry,
carried him to a cot, and placed him into the ambulance, but he assumed that Mr. DeBerry was not
breathing. On cross-examination, Monsue said that Mr. DeBerry was not lying on the spear gun
when he arrived and that he gave his boots to the TBI for testing. Cramer said on cross-examination
that she did not notice a pink sweater or fleece near Mr. DeBerry, and she also gave her boots to the
TBI the following morning to be tested for boot prints.

        Lawrence Richard Jackson, Jr., M.D., testified that he was in the emergency room on the
night that Mr. DeBerry was brought to the hospital, and Mr. DeBerry was dead when he arrived at
the hospital because he had bled to death as a result of multiple stab wounds. Dr. Jackson was
present when Mrs. DeBerry arrived at the hospital, and she was sent by helicopter to Vanderbilt for
treatment because her injuries were greater than they could care for in their hospital.

         Cheryl Moran and Douglas T. Spann, both EMTs, also responded to this incident to assist
Mrs. DeBerry, after the first EMTs that responded realized that there were two patients, the second
being Mrs. DeBerry. When Moran arrived, she assessed Mrs. DeBerry and determined that she had
a three inch, very severe laceration to her neck and two abdominal wounds. She said that Mrs.
DeBerry’s neck wounds were bleeding profusely, and Mrs. DeBerry was “hysterical” and kept
screaming, “If he’s dead, let me die.” Spann said that Mrs. DeBerry had a stab wound to the neck
and to the side of the chest. He attempted to control the bleeding and took her to the ambulance.
Spann described Mrs. DeBerry as “hysterical,” and Mrs. DeBerry was saying that she did not want
to live if her husband had died. Spann said that Mrs. DeBerry said that she was stabbed by a man
named Will and that she and her husband had met Will in a bar earlier that evening. On cross-
examination, Moran said that Mrs. DeBerry told her “he was coming though the door and he stabbed
me on . . . his way out.” She said that, while Mrs. DeBerry’s wound did not look superficial to her,
she would not argue if Vanderbilt had said that it was, in fact, superficial. On cross-examination,
Spann said that Mrs. DeBerry told him that Will and her husband had gotten into an argument, but
they had made up later that evening, and Will had bought her husband a beer. Mrs. DeBerry told him
that “a spear gun was hanging on the wall” and said she was “stabbed as he left.” She did not tell
him that she was stabbed with the spear gun. He also said that Mrs. DeBerry did not say that Will
had stabbed her husband.

       Laura Jane Hodge, a special agent forensic scientist for the TBI, testified that she was called


                                                -11-
to this crime scene, and she arrived at 10:55 a.m. She said that she took photographs and a video
recording of the crime scene, and she described and identified multiple pictures for the jury. Agent
Hodge said that she did not find blood in either the master bedroom or the daughters’ bedroom, but
she did see shoe prints of blood in the kitchen as well as in some other areas of the house. The agent
also noticed that one of the steak knives was missing from a block of knives in the kitchen, but there
was no track of blood between where the DeBerrys were found and the knives. Agent Hodge found
blonde hair that appeared to have been cut and not pulled, and the parties stipulated that the hair
belonged to Mrs. DeBerry. The agent saw shoe prints in blood, which she photographed. She also
collected the spear gun, a piece of a shirt, and a doorknob for further examination. Agent Hodge
testified that she took pictures of the treads of the boots of all of the EMTs and officers that were
present at the crime scene. She said that she then eliminated the pictures of the shoe prints in blood
that matched those boot prints. She could not eliminate eight of the prints that she found in the
blood at the crime scene. The agent later determined that these were one of the daughter’s footprints.
On cross-examination, the agent testified that she did not examine Mr. DeBerry’s boots, and she was
not requested to do so by the State. She said that she did not perform Luminol testing on the rest of
the house, including the sinks, to see if any knives or utensils had been washed of blood.

         Hoyt Eugene Phillips, an agent with the TBI, testified, as an expert in the field of latent
fingerprints, that he collected fingerprint evidence in this case. He said that he attempted to gather
latent fingerprints from the blood on the door frame, the door knob, the spear gun, a cardboard box,
and multiple other items. He said that he was unable to gather any identifiable prints from any of
these items. On cross-examination, the agent said that he did not attempt to gather any fingerprint
evidence from the Mr. DeBerry’s body, and he conceded that this was technologically possible.

        Joe Minor, an agent with the TBI, testified, as an expert in the field of forensic serology,
which includes DNA analysis, that he videotaped the crime scene, which was played for the jury.
Agent Minor noticed multiple boxes, and, on one of the boxes, he saw blood spatter that looked like
it was caused by blood spurting from a major arterial wound. Agent Minor also saw a spear gun
lying in a pool of blood and, near it, a piece of a blue checkered shirt sleeve. The agent saw that two
knives were missing from two separate knife blocks in the kitchen, which he did not find unusual,
and he looked inside and outside the house for a knife or knives as other possible weapons. The
agent performed DNA testing, and he found only Mr. DeBerry’s blood on the spear gun, the blue
checkered shirt sleeve, a watch, and the door knob. Agent Minor found only Mrs. DeBerry’s blood
on her turtleneck, but he found Mr. DeBerry’s blood on the back of her jeans. The agent tested
scrapings from underneath Mr. DeBerry’s fingernails, and he found only Mr. DeBerry’s DNA.

        On cross-examination, the agent said that he did not remember being told that one theory the
police had was that Mrs. DeBerry stabbed Mr. DeBerry while Mr. DeBerry was holding her around
her neck from behind. He conceded that, if this theory were true, there would likely be Mr.
DeBerry’s blood on the back of Mrs. DeBerry’s turtleneck. He said that he did not test the back of
her turtleneck because he was not requested to do so. Agent Minor conceded that he tested only a
small square of the checkered shirt, and he said that someone else’s blood could be on another area
of the shirt. The agent said that he did not find it unusual that there were two knives missing from


                                                 -12-
the knife blocks in the kitchen. Agent Minor testified that the TBI conducted a “cursory” search for
knives in the house, but they did not look under the beds, in the crawlspace, or in the attic. The agent
said that he did not check the sink traps for blood, and the agent did not recall which towels he tested
for blood. He admitted that he did not check the bathtubs or the showers or the dishtowels in the
kitchen area. The agent did not test the blood on the cardboard box to see if it was Mrs. DeBerry’s
blood, but agreed that, if it was her blood, it would have been inconsistent with her story of the
events. The agent did not remember, until he saw the videotape, that there were bare footprints in
blood at the crime scene. He said that, if he had been aware of these footprints, he would have told
Agent Phillips about this, and Agent Phillips would have collected samples. The agent said that he
did not check Mr. DeBerry’s body to determine whose blood was present on him. On redirect
examination, the agent testified that, if there were blood on the back of Mrs. DeBerry’s shirt it could
have been transferred by her leaning against one of the bloody boxes.

        Bruce Phillip Levy, M.D., testified that he is the chief medical examiner in Nashville, and
he performed Mr. DeBerry’s autopsy. He said that Mr. DeBerry had four stab wounds to the chest
that injured his liver and right lung, and each of these four injuries would have been fatal. One of
the stab wounds went through Mr. DeBerry’s rib, which he said would take a lot of force. He had
three stab wounds to his back, and two of those would likely have been fatal because they struck the
right lung. The doctor also saw multiple wounds to Mr. DeBerry’s head, torso, arms, and legs. Mr.
DeBerry’s body also had multiple blunt force injuries to the head, body, arms, and legs. There was
some evidence that the knife or the victim moved while being stabbed. Some of the wounds could
have been created with such force that the hilt of the knife left a bruise on Mr. DeBerry’s skin. The
victim also had multiple defensive wounds to his hands. The doctor opined that Mr. DeBerry died
as a result of multiple sharp force injuries, and his death was caused by another person. The doctor
also opined that it was not possible that the spear gun caused any of the major injuries to Mr.
DeBerry, and the injuries were caused by a knife that had only one sharp edge. Dr. Levy said that
Mr. DeBerry’s blood alcohol level was .118% at the time of his death, which is beyond the legal
limit to operate a car. The doctor identified multiple photographs of the defensive wounds on Mr.
DeBerry’s hands and arms. He opined that Mr. DeBerry’s wounds were caused by a single-edged
knife that was three to four inches long by one inch wide. The doctor noted that Mr. DeBerry did
not sustain any injuries to the inside of his hands, but there were injuries to the back of his hands.
The doctor said that it was possible that Mr. DeBerry was holding the spear gun. He said that some
of the wounds would have impeded Mr. DeBerry’s ability to hold the spear gun because he would
have been losing consciousness. Dr. Levy said that he determined from Mr. DeBerry’s clothing that
Mr. DeBerry was standing upright when he was bleeding.

        Dr. Levy said Mrs. DeBerry’s neck wounds were superficial, meaning that they did not
penetrate beyond a certain depth, but they still required treatment. Dr. Levy compared Mr.
DeBerry’s wounds to Mrs. DeBerry’s wounds, and he concluded that they were similar. Dr. Levy
did not see any “hesitation” marks near Mrs. DeBerry’s neck wounds, which he would expect if she
had inflicted the wounds on herself. Dr. Levy examined pictures of Mrs. DeBerry’s hands, and he
saw what appeared to be defensive wounds on the front and back her hands. The doctor testified that
he was affiliated with the Learning Channel, and he performed part of Mr. DeBerry’s autopsy during


                                                 -13-
a show. He said that, during that program, he was trying to determine if some of Mr. DeBerry’s
wounds were created by a spear gun, and he could not rule out that the spear gun caused some of the
wounds. Additionally, another speculation he had was whether these wounds went completely
through Mr. DeBerry’s body, however, the autopsy showed that this speculation was not accurate.
The doctor said that, on the show, he also discussed theories of who may have committed this crime,
and he discussed whether this may have been an altercation between husband and wife.

        On cross-examination, Dr. Levy testified that he discussed on the show that perhaps this was
a fight between Mr. and Mrs. DeBerry and that an unknown third party did not exist. The
Defendant’s Counsel then showed a videotape of the television show to the jury. In the videotape,
the doctor discussed the possibility that Mr. DeBerry had his right arm around Mrs. DeBerry’s neck
during a physical altercation between the two. The doctor conceded that it was unusual in an
altercation involving a knife to see defensive wounds only on the back of the hands, as was the case
with Mr. DeBerry. Dr. Levy said that Mr. DeBerry was five feet and nine and one half inches tall,
and he said that a woman could have made the wounds that he saw on Mr. DeBerry’s body. Dr.
Levy said that Mr. and Mrs. DeBerry’s wounds were not consistent in number.

        Jose J. Diaz, M.D., testified, as an expert in trauma surgery employed as a surgeon at
Vanderbilt University Medical Center, and he treated Mrs. DeBerry on November 15, 2002, for
several stab wounds. Dr. Diaz testified that Mrs. DeBerry had several minimal facial injuries and
one laceration on the left side of her neck. He described Mrs. DeBerry as covered in blood and
suffering from “marked” emotional distress. Upon further evaluation, it was clear to him that Mrs.
DeBerry required operative intervention for her abdominal injuries because she was bleeding
internally. Dr. Diaz performed surgery on Mrs. DeBerry and found a moderate amount of blood in
her abdomen, and while her organs were largely without injury they required some direct suturing.
He also repaired the defects inside and outside of the abdominal wall caused by stab wounds that
were approximately two to three centimeters in length. He examined Mrs. DeBerry’s neck wound,
determined it was not critical, and repaired the wound. Dr. Diaz noted that pictures of Mr. DeBerry’s
stab wounds showed that they were two to three centimeters in width, which was the same width as
Mrs. DeBerry’s stab wounds.

        On cross-examination, Dr. Diaz testified that Vanderbilt’s medical records indicated that
Mrs. DeBerry’s neck wound was superficial and that she had a history of depression but stopped
taking her medication two months prior to this incident. The records also indicated that Mrs.
DeBerry reported that she was tearful, easily startled and believed she was guilty concerning her
husband’s death. On redirect examination, the doctor said that the knife penetrated three and a half
to four inches into Mrs. DeBerry’s abdomen. The doctor said that Mrs. DeBerry would have bled
to death if her injuries to her abdominal cavity were left unattended.

       Sandra Poltorak, an agent with the TBI, testified that she is a composite artist, and she went
to Vanderbilt Hospital and interviewed Mrs. DeBerry to attempt to create a composite drawing of
the man who committed the stabbing. Agent Poltorak said that she talked with Mrs. DeBerry while
Danielle DeBerry was present at around 2:00 p.m. on November 18, 2002. The agent said that she


                                                -14-
was initially concerned because Mrs. DeBerry was on some medication and was in pain when she
interviewed her. Agent Poltorak met with Mrs. DeBerry a second time, on Nobember 25, 2002,
because Mrs. DeBerry was in considerable pain and had taken painkillers during the first interview.
Mrs. DeBerry provided information again and made some changes to the original composite picture.
The agent agreed that Mrs. DeBerry was more comfortable with the second composite drawing than
the first. The agent said that she was contacted by an agent who asked her to redraw the picture of
a suspect by changing the suspect’s hairstyle and adding facial hair to him. He told her that the
difference between the subject and the composite drawing given by Mrs. DeBerry included hairstyle
and facial hair. She said that she was given a picture of the subject, and she eliminated the beard,
the moustache, and the stubble from the picture.

        Kimberly Noles testified that she saw a news report on television about a suspect, who
stabbed another man, and the report described how the suspect played pool and that he was a drifter
with a big belly, and then the news report showed a composite sketch of the suspect. Noles testified
that she called the TBI and told the person with whom she spoke that she recognized the verbal
description of the suspect and the sketch “kind of sort of” looked like him. She identified a
photograph of the Defendant, who she knew as “Thomas.” Noles met the Defendant at the end of
August 2002 when he assisted her after her car broke down outside of Oklahoma City. She drove
the Defendant’s “bluish-purple” Geo to Amarillo, Texas, and began an intimate romantic
relationship with the Defendant, who indicated that he was single. The Defendant bought her a van,
which she drove back to Tennessee while he followed her in his blue Geo. When they got back to
Tennessee, the Defendant stayed with her for about a week, and, during that time, he told her that
his occupation was to clean up chemical oil spills. Noles remembered seeing the Defendant’s
driver’s license, which showed that he was in his mid-thirties, but she did not remember the last
name on the license. She testified that after the Defendant stayed with her intermittently, he asked
her to come and get him in Seattle, Washington, but she refused. Thereafter, the Defendant came
back to stay with her, and they continued their romantic relationship during which she saw him shoot
pool using only one hand. Noles recalled that the Defendant would change his hair color and length
and he spoke English and Spanish. One night in late October or early November, the Defendant said
he wanted to go to a nearby bar, but Noles was tired and refused so the Defendant left.

         On cross-examination, Noles agreed that the Defendant looked healthier in court than he had
in 2002. She said that he told her he was from Maine, and he traveled to clean up chemical spills.
Noles recalled that the Defendant did not smoke, but he did cough a lot. Noles recalled that the
Defendant got mad at her before he left because he did not want her using drugs, and she told him
that, if she wanted to, she could smoke a joint. She also remembered that he was good enough at
pool to hustle people.

       Amanda Collum testified that her mother is a truck driver, and in 2002 she traveled with her
mother. On November 17, 2002, they stopped at a Petro truckstop in Fort Smith, Arkansas, where
she met the Defendant, who said his name was “Will Qverbey.” Collum said that the Defendant
looked different in court because when she met him he had no hair and a goatee. Collum said that,
when she met the Defendant, he was wearing jeans, a checkered flannel shirt, a baseball cap, and


                                               -15-
white tennis shoes. Collum recalled that the restaurant at the truck stop was full, and the Defendant
asked if he could come and sit with her and her mother. They agreed, and the Defendant ate with
them and told them that he was driving a diesel truck. She remembered that the Defendant received
“quite a few phone calls” on his cell phone. Collum also testified that the Defendant told her that
he was thirty-two, and she did not believe him so he showed her his driver’s license. She
remembered that the Defendant spoke both English and Spanish, and he told her that he also spoke
French and Italian. Further, he said that he had houses in Mexico, Maine, and Canada and that he
was not married. She said that, after she left the truckstop, the Defendant called her numerous times
each day for a couple of weeks.

         Karen Rose testified that she is employed by Auto Zone Limited, which is a business that
sells older used vehicles in Seattle, Washington. On December 13, 2002, a man purporting to be
“William Qverbey” came in driving a 1997 Geo that he wanted to trade for another car with fewer
miles. He said that he liked to travel and that he needed to get back to Colorado because that is
where he worked, and he did not want to take a chance driving the Geo because it had 197,000 miles
on it already. She also remembered that, while there was some trash inside the car, the car was clean
inside. Rose found it unusual that the car was clean because most cars that came into her business
required professional cleaning. Rose testified that her business traded Qverbey a red 1993 Escort
for the blue Geo as a straight deal, meaning no money was exchanged. Rose described Qverbey as
“kind of a big guy, dark hair, very loud . . . You just got the sense that he wasn’t leaving until he got
what he wanted.”

         Rose recalled that Qverbey had a title to the Geo that was in the name of and signed by
Thomas Pearson, and Qverbey said that Pearson was his uncle. Although the title was in Pearson’s
name, Auto Zone Limited was able to make the trade because the title was already signed. As part
of the trade, she copied his driver’s license. Rose identified the Defendant’s driver’s license, which
listed his name as William Qverbey, as being the same driver’s license that Qverbey showed her the
day that he traded his car. She did not, however, recognize the Defendant in court as the man who
purported to be Qverbey, and she said that she did not see Qverbey in the courtroom.

        Rose explained that in a cash deal such as this her business would transfer the title, and then
send the title directly to the person who purchased the vehicle. Rose recalled that, in February of
2003, Qverbey called her, and she recognized his voice. She said that he told her that he needed his
registration, and she told him that the registration was sent to his Belen, New Mexico address, which
was the address listed on his license. Qverbey told Rose that he was working in Colorado and that
he never got the title, but his tags were going to expire so he needed some proof of ownership. He
asked Rose to send a new registration to him in Colorado, which Rose did. She recalled that she sent
the registration to 4611 Kipling Street, Apartment #15, Wheat Ridge, Colorado. Rose said that
Qverbey called her again in June of 2003 and said that he was defending himself in a legal action
involving his Geo, and he needed pictures of his Geo to show that it had been vandalized. Rose
informed Qverbey that the Geo was sold, but she would make an effort to get some photographs of
the car. When Rose could not find the phone number of the buyer she did not pursue the matter
further because it did not seem to be of great importance.


                                                  -16-
       The parties stipulated that:

       [T]he Chevrolet Geo Metro automobile, greenish-blue in color, previously in the
       possession of the Defendant, Albert Saavedra, and registered under the name of
       Thomas Daniel Pearson, was seized by the Pierce County Sheriff’s Department,
       acting in conjunction with the Lakewood Police Department, within the state of
       Washington; that the seizure of the vehicle occurred on April 8, 2004; that at the
       request of [Special Agent] Derrick Jones with the Tennessee Bureau of Investigation,
       the vehicle was processed by the Pierce County Sheriff’s Department, in an effort
       to determine if there was present within said vehicle anything of evidentiary value
       in the matter of the State of Tennessee versus Albert Saavedra; that no such evidence
       was found on this date within the Chevrolet Geo Metro automobile.

        William G. Brady, III, testified that he was an agent with the Colorado Bureau of
Investigations (“CBI”), and, in January of 2003, the TBI contacted him, informed him of the
homicide investigation, and requested that he investigate some phone calls that were made from the
Defendant’s cell phone to phone numbers in Colorado. The agent found that one of the phone
numbers called by the Defendant’s cell phone was listed to a woman named Tedjosunarto. The agent
said that Tedjosunarto’s address was listed as 4611 Kipling Street, Wheat Ridge, Colorado. Agent
Brady contacted the apartment manager to ensure that Tedjosunarto lived in the apartment and
showed the manager the Defendant’s picture. The manager identified the Defendant’s picture as
belonging to a man named Thomas D. Pearson and said that Pearson lived in apartment number
fifteen with Tedjosunarto. The agent then obtained the rental application for Sianawati Tedjosunarto
and Thomas Daniel Pearson, after which he received two warrants for Thomas Daniel Pearson from
the State of Tennessee. The agent went to the apartment with Agent Lawrence Gavell to interview
Tedjosunarto about the phone calls that had been traced to her phone from the Defendant’s phone
and about her relationship with the Defendant. When he arrived at the apartment, he asked
Tedjosunarto if he could speak with her about her relationship with Pearson, and Tedjosunarto said
that she was late for work and did not want to conduct the interview. The agent said that
Tedjosunarto’s body language indicated to him that the Defendant may be in the apartment, and he
asked Tedjosunarto if the Defendant was in the apartment. Tedjosunarto immediately dropped her
head, which indicated to the agent that the Defendant may be in the apartment. The agent entered
the apartment and found the Defendant wearing shorts and a t-shirt hiding in the bathroom with the
lights turned off. Agent Brady said that the Defendant was in the bathtub with the shower curtain
closed, but there was no water running, and the bathtub was not wet.

        Agent Brady testified that he restrained and interviewed the Defendant, and he determined
that the Defendant was the man depicted in the photograph sent to him by the TBI. Further, the TBI
described tattoos that the Defendant may have, and the agent saw those tattoos on the Defendant.
Agent Brady called the Defendant by the name Thomas Pearson, the name listed on the apartment
rental agreement, and the Defendant told him that his name was William Qverbey. The Defendant
then presented an identification card from the State of New Mexico that showed his photograph and
listed the name William Qverbey and a New Mexico address. The agent also obtained a New


                                               -17-
Mexico driver’s license that showed the Defendant’s picture, the name William Qverbey, and listed
the same New Mexico address. The agent noted that both of these documents were issued on the
same day. The agent recovered several documents from the Defendant’s apartment, one of which
was a “defaced” Social Security card under the name William Verbey. The defacement appeared
in the area in front of the “V” in the body of the document and also in front of the “V” on the
signature line of the document. The agent also retrieved a certified copy of an original birth
certificate from North Carolina that showed the name William Verbey and noted that it appeared that
the “V” had been defaced on this document as well.

        The agent said that, after verifying the Defendant’s identity, he placed the Defendant under
arrest and gave the Defendant Miranda warnings. Agent Brady asked the Defendant if he owned a
vehicle, and the Defendant told him that he owned a red Ford Escort parked outside the apartment
and that his cell phone was located in the Escort. Agent Brady asked the Defendant if he owned a
blue Geo car, and the Defendant said he did not. The Defendant then gave Agent Brady and Agent
Gavell verbal consent to search the Escort. The agent found the Defendant’s cell phone, which the
TBI had told the agent had been used to make several calls to Colorado phone numbers.

        Agent Brady said that he and Agent Gavell took the Defendant to the Jefferson County Jail
to be booked, and, right before booking, the Defendant said that his real name was Albert Saavedra.
The agent said that, at that time, the Defendant also told him that he was in “big trouble” and that
“[i]t [would] be a long time before [he] g[o]t to see [his] kid.” Further, he said that “if [the agent]
would have let [him] hug [his] kid, [he] would have told [the agent] everything.”

         On cross-examination, the agent conceded that the date that both of the New Mexico
identifications were issued was September 24, 2002, which was two months before the alleged
crimes in Tennessee. Agent Brady was aware that the Defendant may have used the name William
while in Tennessee, and the Defendant could have disposed of the identification cards that showed
his name as William. The agent said that the Defendant traded in a blue Geo and purchased the Ford
Escort using the name William Qverbey. The agent said that, in addition to the fugitive warrant from
Tennessee, the Defendant had a misdemeanor warrant for failure to appear on a reckless driving
ticket in Colorado. The warrant for the failure to appear was listed under the name Thomas Daniel
Pearson.

        Lawrence Gavell testified that, in January of 2003, he was working as an agent for the CBI
when he assisted Agent Brady in this Tennessee homicide investigation. Agent Brady told him that
the TBI had obtained phone records from the Defendant’s phone that indicated that the Defendant
was making a number of calls to a Colorado address and asked Agent Gavell to go with him to
interview a woman who was living at the Colorado address. Agent Gavell understood that there
were two warrants for the Defendant’s arrest, one for first degree murder and one for attempted first
degree murder. Agent Gavell recalled that, when they arrived at the apartment, Tedjosunarto
answered the door, and the agents identified themselves as agents with the CBI by showing their
badges and agent identifications. Agent Brady attempted to interview Tedjosunarto, but
Tedjosunarto said that she was late for work and declined to be interviewed. Agent Gavell said that


                                                 -18-
they asked Tedjosunarto if the Defendant was at the apartment, and Tedjosunarto said that he was
not and gave them permission to search the apartment. The agents found the Defendant in the
bathroom shower wearing grey shorts and a grey t-shirt, and they handcuffed him and gave him
Miranda warnings. The Defendant said that his name was William Qverbey and that his
identification was on the kitchen table in his wallet.

          The agent recalled that the Defendant said he had a red Ford Escort that was parked in the
parking lot of the apartment complex. The agent asked if the Defendant had a cell phone, and the
Defendant said he did have a cell phone, but it was inactive and located in his car. At some point,
when Agent Gavell was alone with the Defendant, the Defendant told the agent that the blue car that
he owned was in Albuquerque, New Mexico. Later, when the agent was transporting the Defendant
to jail, the Defendant recanted and said that this was a lie. The Defendant also told the agent that
he had another car parked in Denver, but the agent went to the address the Defendant provided and
could not find the car that the Defendant described. On cross-examination, the agent said that the
other car that he was never able to locate was not a blue Geo. He said that the Defendant told him
that he owned more than one car and that he owned the red Ford Escort parked in the apartment
parking lot. Agent Brady found the purchase agreement for the car and the Defendant’s cell phone
inside the car.

         Diane Freas, a fugitive specialist with the Jefferson County Sheriff’s Office in Golden,
Colorado, testified that she was given paperwork to process “Mr. Pearson” for extradition and was
told that “Mr. Pearson” was upset about being called by that name because it was not his name.
Freas said that, upon receiving that information, she spoke with the Defendant, he advised her that
his name was not Thomas Pearson but was Albert Saavedra, and he offered her his mother’s phone
number for verification. Upon her questioning, the Defendant said that the last time he was in
Tennessee was when the stabbings in this case occurred. Freas told the Defendant that she worked
for a law enforcement agency and was not his attorney, and he would have access to a public
defender. The Defendant then told her about the circumstances surrounding this killing. He told her
that he had been out the night of the killing, and he bought a round of beers for several people and
later left the bar with a man and a woman and went to their house. When they got to the house, the
man made some comment to him about the Defendant liking the woman and wanting to be with her,
and he told the man that he did not want any problems and just wanted to leave, and the man left and
came back with “something that you shoot -- that you pull back and shoot -- the long thing that you
pull back and shoot and that they began to wrestle.” At this point, Freas again advised the Defendant
that he should not be speaking with her, and he agreed to waive extradition because he said that “he
wanted to go back and just get it all taken care of.” The following day, the Defendant decided not
to waive extradition, and Freas told the Defendant that he was innocent until proven guilty, and the
Defendant responded “oh, no. I did it.” At that point, Freas stopped the Defendant by stating that
he should not tell her that information. On cross-examination, Freas said that she did not know
whether the Defendant told the CBI agents the same story that he told her.

        Mike Felsoci testified that, in January of 2003, he was an officer with the Jefferson County
Sheriff’s Office in Colorado assigned to the homicide unit. He said that his sergeant informed him


                                                -19-
that Diane Freas contacted the sheriff’s department to tell them that a man named “Thomas Pearson,”
who was in the jail, may want to speak with them. Officer Felsoci, assisted by Investigator Dan
Dunnebecke, interviewed the Defendant for almost three hours, and he created a videotape, a
redacted version of which was played for the jury. The officer described the Defendant’s demeanor
when the officer walked into the interview room as “[f]ine,” but later the Defendant seemed “a little
nervous” and “[s]ometimes . . . a little emotional . . . [but] [n]ever angry.” During the interview,
Officer Felsoci asked the Defendant to draw a picture of a spear gun that the Defendant said that Mr.
DeBerry pointed at him and the room where the murder occurred, and those pictures were shown to
the jury. The Defendant indicated that the struggle occurred in the middle of the garage. The officer
recalled that the Defendant said that he was at “the TA” and later clarified that he meant a truckstop.
Early in the interview, the Defendant said that his wife gave him money, but later he said that his
wife did not give him money. The officer also understood the Defendant to say that he went to a bar
on the evening of this incident with someone named “Red” and only started buying drinks for
everyone after he had been at the bar for a while. The Defendant said that he was injured in this
incident, but the only injury the officer noticed was a small, healing cut on the Defendant’s left index
finger. The officer thought it was clear from the Defendant’s statement that the Defendant only went
into the garage and not into any other part of the house.

       Officer Felsoci said that the Defendant told him that the Deberrys’ two daughters were
present at the house when the Defendant was there. The Defendant told him that the Defendant
could not recall “little things” and indicated that he had suffered from seizures in the past, the last
of which was “a couple of months ago.” Further, he said that he had been taking 300 milligrams of
Dilantin for the seizures, but the last time he had taken his medication was approximately one month
before the interview. Officer Felsoci also recalled that the Defendant mentioned that he had
previously suffered a stroke.

         Officer Felsoci described how the Defendant used his hands when he spoke and said that the
Defendant told him at first that, on the night of this incident, Mrs. DeBerry called her husband’s
name. He then said that Mrs. DeBerry said, “Will, stop,” and finally changed his story again to say
that Mrs. DeBerry called to her husband. The officer said that the Defendant demonstrated how, at
one point during the struggle between him and Mr. DeBerry, Mr. DeBerry’s back was pressed against
the Defendant’s chest. The Defendant also said that the shirt he was wearing that night had blood
on it, and he disposed of the shirt in a shower at a TA truckstop.

       On cross-examination, the Officer Felsocisaid they interviewed the Defendant for an
extensive period of time and went over the same subject matter to help him remember what occurred.
Officer Felsoci agreed that he was unaware that Mr. DeBerry had been diagnosed with manic
depression but was not taking his medication. The officer said that the Defendant acted as if he did
not know that the victim had died, and his partner said to the Defendant “well . . . maybe something
happened after you left?” The officer agreed that it is possible that something had happened to Mr.
DeBerry after the Defendant left.

       Investigator Daniel Dunnebecke, an investigator with the Jefferson County Sheriff’s Office


                                                 -20-
in Golden, Colorado, testified that he interviewed the Defendant with his partner, Officer Felsoci.
Investigator Dunnebecke described the interview room as being six feet by eight feet and said that
he sat between two and five feet from the Defendant. The investigator recalled that the Defendant
became emotional at one point in the interview, but he noticed that there was never any moisture
coming from the Defendant’s eyes. The investigator remembered that the Defendant said that, when
he left Humphreys County, he picked up a hitchhiker at a TA truckstop who drove him from
Tennessee to Denver, Colorado, which would be a sixteen to eighteen hour drive. Investigator
Dunnebecke testified that the Defendant said during the interview that he suffered a cut to his finger
during his struggle with Mr. DeBerry. The investigator saw the cut and described it as being
approximately one quarter to one half inch in length and said it was healed over. Investigator
Dunnebecke said that, the day after he interviewed the Defendant, he attempted to take a photograph
of the Defendant’s cut, but the Defendant refused this request.

        On cross-examination, the Investigator Dunnebecke testified that, when Officer Felsoci asked
the Defendant where he got the cut on his finger, the Defendant responded, “I don’t know, to be
honest.” The Defendant showed him a scar on the Defendant’s right wrist. The investigator
identified the right shirt sleeve of the Defendant’s shirt, which was found at the crime scene, and he
said that the rips or cuts in the shirt could be consistent with a wound to the right wrist of the person
wearing the shirt.

         J.C. Damesworth testified that he is the chief deputy in Humphreys County, and he assisted
in this investigation by searching for the murder weapon at the DeBerrys’ house and by preparing
and showing multiple photographic line-ups to witnesses. As part of this investigation, Chief Deputy
Damesworth received information that, on the night of the murder, the Defendant started his evening
at a TA Truckstop. The chief deputy determined that the two closest TA Truckstops are on I-40, the
first close to Jackson, Tennessee, and the second close to Nashville, Tennessee. He said that the TA
Truckstop near Nashville was approximately 70 miles from New Johnsonville, where the crime
occurred, and the TA Truckstop near Jackson was approximately fifty miles from New Johnsonville.
On cross-examination, the chief deputy testified that the closest truck stop to New Johnsonville was
a Pilot. He said that he never searched Mrs. DeBerry’s Volvo, and he did not search for the murder
weapon in a fenced-in area in the DeBerrys’ backyard where a dog was kept. Chief Deputy
Damesworth also did not search the trash area that was located on the grounds, and he did not search
the residences or cars of Rhonda Miller, Craig Upchurch or Greta Flowers. He agreed that he did
not try to ascertain whether any of those three people owned a dark colored, maroon colored, red,
or brown vehicle.

        Charles Hammond testified that he resided at the Humphreys County Jail and began serving
his sentence on March 1, 2004, for violating his probation for sentences from theft offenses that
occurred twelve years ago. Hammond testified that the Defendant told him that he met a girl in a
bar, and she performed oral sex on him, after which a guy came in and grabbed the woman by the
hair and started beating her. Hammond said that the Defendant told him that he grabbed a paring
knife and stabbed the guy several times but that he did not know how many times until he read it in
the newspaper. The Defendant said that he stabbed the woman because he wanted her to testify that


                                                  -21-
she killed the man in self-defense, but she did not do what they had discussed and double-crossed
him. The Defendant told him that the man was not moving when the Defendant left the house. On
cross-examination, Hammond said that his previous theft convictions were felonies, and he denied
that he was testifying because he had a hearing on his violation of probation charge that was
scheduled soon. Hammond agreed that the Defendant’s counsel had previously asked him if he had
made statements about trying to kill someone and rip their throat out, and denied that he made these
statements. Then, when a tape of him making such statements was played, he admitted that he had
said those things and admitted lying under oath when first asked about these statements. Hammond
denied that his testimony was based upon conversations that he overheard between the Defendant
and the Defendant’s attorney.

        Ronnie E. Toungette, the Sheriff for Humphreys County testified that part of his job was
being the chief jailer. He said that the Defendant was brought to the jail in March of 2003 and had
been located there for a little over one year, and he confirmed that Hammond’s cell was close to the
Defendant’s cell. He said that, according to procedure, when an inmate’s attorney comes to visit,
they take the inmate and the attorney to an interview room, where they can observe them through a
window. He said that, although this was currently the procedure, on February 26, 2004, when the
Sheriff was unable to be at the jail, the Defendant’s attorney went back to visit the Defendant
through the bars of his jail cell. He said that the jail records indicated that the Defendant’s counsel
entered the cell area around 1:45 p.m. and left around 4:00 p.m. The Sheriff said that it was not
unusual for attorneys to visit clients in their cells, but he did not like that practice.

        The sheriff testified that Hammond was brought to the Humphreys County jail on March 1,
2004, and Hammond was being held in Mississippi prior to that. Sheriff Toungette said that he
heard the Defendant’s counsel cross-examining Hammond, during which he heard Hammond deny
that his testimony was based upon conversations that he overheard between the Defendant and the
Defendant’s counsel. The sheriff said that he searched his journal entries and was unable to find any
time, other than February 26, 2004, when the Defendant’s counsel visited the Defendant at his jail
cell. Sheriff Toungette recalled that Hammond told him that he wanted to talk with someone on
March 16, 2004, and Agent Jones happened to be in the jail, so the sheriff called Agent Jones to
come and speak with Hammond.

         On cross-examination, the sheriff said that, if the Defendant’s counsel said that they had been
to see the Defendant at his cell more times than indicated by the record, he would assume that the
jailer failed to make a note regarding the visit because he did not think that either of the Defendant’s
counsel would lie. Sheriff Toungette agreed that it was also an important requirement that the jailers
make a notation of items given to an inmate. He said he did not know whether his records indicated
that the Defendant’s counsel brought him cheeseburgers or a light fixture. Further, he agreed that
it was possible that the Defendant’s counsel visited the Defendant and a record of the visit was not
made in the books.

       Gary E. Dill testified on the Defendant’s behalf that he was in Tennessee on November 14,
2002, and witnessed an altercation at a drinking establishment between a blonde-haired woman, who


                                                 -22-
was about five feet and six or seven inches tall, and a man, who wore a pair of blue jeans and a black
sweater. He said that the woman was wearing white tennis shoes, a pair of stonewashed jeans, and
a white long-sleeved shirt with something on the front of the shirt. He said that the woman came
into the bar, went straight towards the bathroom, and, when the man walked out of the bathroom,
she hit him. The man grabbed the woman’s hands, and they got into an argument. Dill recalled that
“no sooner than [the argument] started, it was pretty much over. And, then, [they] went back to
having a good time.” Dill estimated that the woman struck the man twice and shoved him away
from her. Dill agreed that he has since learned that the man was Mr. DeBerry. He also said that he
saw the Defendant there that evening and that the Defendant was “real friendly with everybody. . .
. There were no problems.” He said that, when they got ready to leave, the Defendant calmed Mr.
DeBerry down because Mr. DeBerry wanted to go to Jackson because they serve liquor by the drink,
and he asked the Defendant to go with him. On cross-examination, Dill agreed that he did not know
the Defendant’s name, but the Defendant was buying drinks for everybody. Dill recalled that the
Defendant came into the bar with Mr. DeBerry.

       Lindsey Rennee Netterville testified that she lived directly across the street from the
DeBerrys, and, on November 15, 2002, she woke up and there were ambulances and police officers
outside her house. Netterville recalled that, at 1:30 a.m., she saw two cars at the DeBerrys’ house.
One of the cars was the DeBerrys’ white Volvo and the other car was parked at an angle towards the
back yard on the left side of the driveway. She recalled that the car parked at an angle was not a
hatchback and had a trunk, and it had its headlights and taillights on. Netterville stated that there
was no car parked on the right side of the DeBerrys’ driveway.

        Based upon this evidence, the jury found the Defendant guilty of voluntary manslaughter and
attempted first degree murder. The Defendant filed a motion pursuant to Tennessee Rule of
Criminal Procedure 33(f) to set aside the verdict. In its order ruling on the motion, the trial court
noted that it had neglected to rule on the Defendant’s motion for judgment of acquittal, pursuant to
Tennessee Rule of Criminal Procedure 29(a), at the close of the State’s proof and that this neglect
was error. The trial court, therefore, belatedly ruled on the motion and granted the motion as to the
charge of attempted first degree murder. The court entered a judgment of guilty to the lesser-
included offense of attempted second degree murder, finding that the evidence presented supported
that offense.

                                             II. Analysis

       On appeal the Defendant contends that: (1) the evidence is insufficient to sustain his
conviction for attempted second degree murder; (2) the trial court erred by not instructing the jury
on aggravated assault as a lesser-included offense of attempted first degree murder; (3) the trial court
erred when it took his motion for judgment of acquittal under advisement and when it denied this
motion with respect to attempted second degree murder; and (4) the trial court erred when it denied
his Rule 33(f) motion.




                                                 -23-
                                  A. Sufficiency of the Evidence

         The Defendant first contends that the evidence is insufficient to sustain his conviction for
attempted second degree murder. He first notes that attempted voluntary manslaughter is a lesser-
included offense of attempted first degree murder and that the jury convicted him of the voluntary
manslaughter of Mr. DeBerry, thereby finding that he acted under passion, in self defense or while
committing an assault. Accordingly, the Defendant states that the evidence proves that this was still
his state of mind when he attacked Mrs. DeBerry. Further, the Defendant asserts that had he wanted
to kill Mrs. DeBerry he clearly could have done so. The Defendant concludes that there is
insufficient proof to rule out that the Defendant had a chance for his passion to subside or that he
interpreted Mrs. DeBerry’s grabbing of the spear gun as a threat and, having no intent to kill her, just
slashed wildly at anything in close proximity to his drunken brawl with Mr. DeBerry. The State
counters that intent can seldom be proven by direct evidence and may be deduced or inferred from
the character of the assault, the nature of the act, and from all the circumstances of the case and that
the circumstances in this case support the conclusion that the Defendant knowingly attempted to kill
Mrs. DeBerry.

         When the sufficiency of the evidence is challenged, the standard of review is whether,
considering the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Leach, 148 S.W.3d 42, 53 (Tenn. 2004);
State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002). The State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn from that evidence. State
v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Questions regarding the credibility of witnesses,
the weight and value of the evidence, and any factual issues raised by the evidence are resolved by
the trier of fact. Id. When a defendant challenges the sufficiency of the evidence, this Court does
not reweigh or reevaluate the evidence. State v. Vaughn, 29 S.W.3d 33, 39 (Tenn. Crim. App.
1998). 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. See State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000).

       Second degree murder is the knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1)
(2003). A person acts knowingly with respect to a result of the person’s conduct when the person
is aware that the conduct is reasonably certain to cause the result. Tenn. Code Ann. § 39-11-
106(a)(20) (2003). Criminal attempt requires that one act “with the kind of culpability otherwise
required for the offense . . . [and] with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person’s part.” Tenn. Code
Ann. § 39-12-101(a)(2) (2003). Therefore, criminal attempt requires two material elements: (1) the
culpability required for the attempted crime; and (2) an act in furtherance of the attempted crime.
Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000). Therefore, a defendant is guilty of attempted
second degree murder if he knowingly attempted to kill another without adequate provocation and
with the belief that his conduct would result in death without further conduct on his part. Whether


                                                  -24-
a defendant “knowingly” attempted to kill his victim is a question of fact for the jury. State v. Inlow,
52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000). “Intent, which can seldom be proven by direct
evidence, may be deduced or inferred by the trier of fact from the character of the assault, the nature
of the act and from all the circumstances of the case in evidence.” Id. at 105.

         In the case under submission, the evidence, viewed in the light most favorable to the State,
proves that the Defendant went to a bar on the evening of November 14, 2002, where he met Mr. and
Mrs. DeBerry. He drove Mr. DeBerry back to the DeBerry residence while Mrs. DeBerry followed
them in her car. When they arrived at the house, Mrs. DeBerry went in to go to bed, and the
Defendant and Mr. DeBerry stayed outside the house and in the garage. Shortly thereafter, a fight
involving both a spear gun and a knife ensued, and the Defendant killed Mr. DeBerry in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner. See Tenn. Code Ann. § 39-13-211 (2003). During the fight, Mr. DeBerry called
to Mrs. DeBerry for help, and, hearing those cries, she came into the garage to find the Defendant
and Mr. DeBerry wrestling with the spear gun. She stepped between the two men and grabbed the
spear gun, and Mr. DeBerry fell backwards after letting go of the spear gun. The Defendant, who
was much taller and bigger than Mrs. DeBerry, then jabbed and lunged at Mrs. DeBerry. The
Defendant stabbed Mrs. DeBerry three times, twice in the abdomen and once in the neck. Mrs.
DeBerry asked the Defendant why he was doing this and then her daughter, Danielle, who had heard
the noise, opened the garage door. The Defendant told Danielle to shut the door, and then he fled,
only returning to Tennessee when he was arrested in, and extradited by, Colorado. After he was in
jail in Tennessee, the Defendant admitted to another inmate that he killed a man, stabbed the man’s
wife, and disposed of the weapon.

         Based upon this evidence, and viewing it in the light most favorable to the State, a rational
juror could have concluded from Mrs. DeBerry’s multiple stab wounds, the Defendant’s relative size,
his subsequent flight from the scene, and his own statements, that he acted knowingly and intended
to kill Mrs. DeBerry without the passion that would justify attempted manslaughter. The Defendant
is not entitled to relief on this issue.

                                B. Aggravated Assault Instruction

        The Defendant next contends that the trial court erred by not instructing the jury on
aggravated assault as a lesser-included offense of attempted murder. The State counters first that this
issue is waived and second that aggravated assault is not a lesser-included offense of first degree
murder. The trial court has a duty to instruct the jury on any lesser-included offenses of the charged
offense when such instruction is supported by the evidence, regardless of whether the Defendant has
requested such an instruction. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 464 (Tenn. 1999). The standard for an appellate court’s review of the trial court’s
charge to the jury regarding lesser-included offenses is de novo with no presumption of correctness.
State v. Moore, 77 S.W.3d 132, 134 (Tenn. 2002).

       If an offense is found to be a lesser-included offense, the court must next ascertain whether


                                                 -25-
the evidence justifies a jury instruction on the lesser-included offense. Bowles, 52 S.W.3d at 75. To
do so, the court must first determine whether there is evidence that “reasonable minds” could accept
to establish the lesser-included offense. Burns, 6 S.W.3d at 469. The court must view the evidence
liberally in a light most favorable to the existence of the lesser-included offense without judging its
credibility. State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001); Burns, 6 S.W.3d at 469. Finally, the
court must determine if the evidence is “legally sufficient” to support a conviction for the lesser-
included offense. Burns, 6 S.W.3d at 469. The evidence, not the theories of the parties, determines
whether an instruction on a lesser-included offense should be given. State v. Allen, 69 S.W.3d 181,
188 (Tenn. 2002). Furthermore, the decision to convict on a lesser-included offense should not be
taken from the jury simply because the element distinguishing the greater offense from the lesser
offense is “uncontroverted.” Id. at 189. If the evidence justifies an instruction, the failure to charge
the offense is error even though the evidence was also sufficient to support the greater offense.
Burns, 6 S.W.3d at 472.

        The State correctly points out that the Defendant has risked waiver by not requesting at trial
a jury instruction about aggravated assault. See Tenn. Code Ann. § 40-18-110(c) (2003). Further,
he also risks waiver by failing to provide adequate citation to authorities and appropriate references
to the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (b). Our Supreme Court
has recently held that “[t]he current version of [Tennessee Code Annotated] section 48-18-110(c)
subjects the right to lesser-included offense instructions to the general rule that issues concerning
incomplete instructions are deemed waived in the absence of an objection or special request.” State
v. Page, – S.W.3d –, 2006 WL 300980, at *5 (Tenn. 2006). Further, “While section 40-18-110(c)
precludes a defendant who fails to request a lesser-included offense instruction in writing from
seeking plenary appellate review of the issue, an appellate court is not precluded from sua sponte
reviewing the lesser-included offense issue under the plain error doctrine. State v. Rice, – S.W.3d
__, 2006 WL 397524, at *26 (Tenn. 2006) (citing Page, 2006 WL 300980, at *5).

        In the case presently before us, the Defendant failed to request in writing an instruction on
the offense of aggravated assault and is therefore precluded under section 40-18-110 from seeking
plenary appellate review of the issue. We will look, however, to whether the trial court’s failure to
instruct on the lesser-included offense of aggravated assault was plain error.

        When determining whether plain error review is appropriate, the following five factors must
be established:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused [must not have waived] the issue for tactical reasons; and
       (e) consideration of the error [must be] “necessary to do substantial justice.

State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003). An error would have to be especially egregious
in nature, striking at the very heart of the fairness of the judicial proceeding to rise to the level of


                                                 -26-
plain error. Page, – S.W.3d at –, 2006 WL 300980, at *6.

         We first consider whether a clear an unequivocal rule of law has been breached. The law is
settled that aggravated assault is not a lesser-included offense of attempted first degree murder. State
v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999); State v. Christopher Todd Brown, No. M1999-00691-
CCA-R3-CD, 2000 WL 262936, at *2 (Tenn. Crim. App., at Nashville, Mar. 9, 2000), Tenn. R. App.
P. 11 application denied (Tenn. Sept. 10, 2001). In this case, however, the trial court found that the
evidence presented at trial could not sustain the Defendant’s conviction for attempted first degree
murder, and it reduced that conviction to attempted second degree murder. We must, therefore,
determine whether aggravated assault is a lesser included offense of attempted second degree
murder.

       In State v. Rush, 50 S.W.3d 424 (Tenn. 2001), the Tennessee Supreme Court held that
reckless aggravated assault was not a lesser-included offense of attempted second degree murder
under the Burns test. Rush, 50 S.W.3d at 429-30. The Court stated that “the offense of attempted
second degree murder requires proof of the following elements: (1) a knowing (2) attempt, (3) to kill
another. See Tenn. Code Ann. §§ 39-13-210(a)(1) (1999) (defining second degree murder); 39-12-
101 (1999) (defining criminal attempt).” Rush, 50 S.W.3d at 430. The Rush court explained:

       [U]nder part (a) of the Burns test, reckless aggravated assault cannot be a lesser-
       included offense of second degree murder because reckless aggravated assault
       requires proof of either (a) serious bodily injury or (b) bodily injury and display of
       a deadly weapon, neither of which is required to prove attempted second degree
       murder.

Id. at 430. Furthermore, the Tennessee Supreme Court concluded that part (b) of the Burns test was
not satisfied. The Rush court explained:

       [T]he harm contemplated by the bodily injury element of reckless aggravated assault
       is not less serious than the harm contemplated by the attempted killing element of
       attempted second degree murder because many attempted murders do not involve any
       injury at all to the victim, whereas a reckless aggravated assault always involves
       bodily injury.

Id. at 431. Likewise, this Court has held that neither aggravated assault nor assault is a lesser-
included offense of attempted second degree murder under the Burns test. State v. Bobby J. Hughes,
No. W1999-00360-CCA-R3-CD, 2001 WL 91736, at *14 (Tenn. Crim. App., at Jackson, Jan. 26,
2001), no perm. app. filed. In Hughes, this Court noted that, pursuant to the statutory elements
analysis mandated in Burns, “descriptive language in a charging instrument will not create a lesser-
included offense if the statutory elements of the greater offense do not include all of the elements
of the lesser offense or otherwise indicate inclusion via parts (b) or (c) of Burns.” Id. at *14; see
Brown, 2000 WL 262936, at *2 (holding that assault and aggravated assault are not lesser included
offenses of attempted first degree murder under the Burns analysis because the statutory elements


                                                 -27-
of assault and aggravated assault are not included in the statutory elements of attempted first degree
murder); see also State v. Renne Efren Arellano, No. M2002-00380-CCA-R3-CD, 2003 WL 535927,
*2 (Tenn. Crim. App., at Nashville, Feb. 26, 2003) (holding that plain error required reversal of the
defendant’s conviction upon his guilty plea to aggravated assault because the defendant was
originally charged with attempted first degree murder, and, under Brown, 2000 WL 262936,
aggravated assault is not a lesser included offense of attempted first degree murder), rev’d on other
grounds State v. Yorecku, 133 S.W.3d 606, 610 (Tenn. 2004).

        A person commits aggravated assault who “[i]ntentionally or knowingly commits an assault
as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays
a deadly weapon.” Tenn. Code Ann. § 39-13-102(a) (1997). Tennessee Code Annotated section 39-
13-101(a) (1997) states that a person commits assault who: “(1) Intentionally, knowingly or
recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to
reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact
with another and a reasonable person would regard the contact as extremely offensive or
provocative.” In light of Rush and Hughes, we conclude that aggravated assault is not a lesser-
included offense of attempted second degree murder because it requires proof of (a) serious bodily
injury or (b) use or display of a deadly weapon in connection with the assault, neither of which is
required to prove attempted second degree murder, and the harm contemplated by the bodily injury
element of aggravated assault is not less serious than the harm contemplated by the attempted killing
element of attempted second degree murder. See Rush, 50 S.W.3d at 430-31; Hughes, 2001 WL
91736, at *14. Accordingly, we conclude that aggravated assault is not a lesser included offense of
attempted second degree murder. Therefore, no clear and unequivocal rule of law has been breached,
and the trial court’s failure to instruct on aggravated assault is not plain error. The Defendant is not
entitled to relief on this issue.

                                    C. Motion for Judgment of Acquittal

                               1. Taking Rule 29 Motion Under Advisement

        The Defendant contends that the trial court erred with regard to the attempted first degree
murder charge when it took his motion, filed pursuant to Tennessee Rule of Criminal Procedure 29,
under advisement. The Defendant argues that, had the motion been decided at the end of the State’s
proof, the Defendant could have made the decision of whether to testify knowing that he did not face
this Class A felony.3 The State counters that Rule 29 was amended in 1988, and, in its current
incarnation, it contemplates a trial court taking a motion for judgment of acquittal under advisement
following the State’s evidence. The State asserts that the Defendant waived this issue by not
renewing his motion at the close of his case. Further, the State asserts that any error is harmless
beyond a reasonable doubt.


         3
           W e note that the Defendant argues that he may have testified knowing that he did not face “a possible class
 A felony.” The Defendant would have, however, still been facing the first degree murder charge for Mr. DeBerry’s
killing, but he asserts he was confident at trial that the jury would not convict him of a charge greater than manslaughter.

                                                           -28-
      The record shows that, at the close of the State’s proof, the Defendant orally moved for a
judgment of acquittal, and the trial court stated:

               In this case, there were two (2) people who were present at the beginning of
       the incident or altercation . . . . One is the [D]efendant and the other is deceased.

               We have no indication of how this situation began.

                With regard to assuming premeditation based on . . . the subsequent acts, I
       think it’s been pretty roundly condemned by our appellate courts. And not only that,
       in this case, it’s particularly inappropriate, because other than disposing of some
       evidence and so forth, the [D]efendant, basically, continued to do what he had been
       doing before, changing aliases and moving around.

                The legal sufficiency of . . . premeditation in this is case extremely weak.
       And the Court will reserve ruling on this case, pending some research on this issue.
       Because . . . it’s going to be a close call. I, very likely, may let the jury decide it and,
       then, if the . . . jury comes back with first degree murder, I may have to look back and
       see if I have to drop that down to second [degree murder].

The trial court never entered an order on the motion for judgment of acquittal. The Defendant did
not again request a ruling on this motion, and he did not renew his motion at the close of trial.

      After the trial, and at the hearing on the motion for new trial pursuant to Rule 33(f) of the
Tennessee Rules of Criminal Procedure, the trial court stated:

       [T]he Motion for a judgment of acquittal made at the end of the State’s proof was
       taken under advisement during the lunch hour. It was my intention to rule after
       lunch.

               I just simply forgot to rule.

               Faced with this situation . . . I can either abandon the ruling on the issue or
       I can rule on it at this time, late.

               So . . . the Court chooses to rule on the Motion at this time.

               The Court grants the Motion made at the close of the State’s proof for
       judgment of acquittal as to attempted first degree murder. There is just simply not
       time to premeditate in that situation. . . . there is just no evidence in the Court, in the
       record, before this Court that would allow a verdict of attempt to commit first degree
       murder to stand.



                                                  -29-
                The evidence is, however, sufficient to convict the Defendant of attempt to
         commit murder in the second degree. The conviction is now of the lesser offense of
         attempted second degree murder.

The trial court went on to state that, because it determined that the evidence was legally insufficient
to support attempt to commit first degree murder, that conviction was no longer before the court on
the Rule 33(f) motion for new trial. The trial court found that attempted second degree murder and
voluntary manslaughter were the two convictions that were properly considered pursuant to the Rule
33(f) motion. It then ruled, as a thirteenth juror, that the motion for new trial should be denied.

         Tennessee Rule of Criminal Procedure 29(a) provides:

         The court on motion of a defendant . . . shall order the entry of judgment of acquittal
         of one or more offenses charged in the indictment or information after the evidence
         on either side is closed if the evidence is insufficient to sustain a conviction of such
         offense or offenses. If a defendant’s motion for judgment of acquittal at the close of
         the evidence offered by the [S]tate is not granted, the defendant may offer evidence
         without having reserved the right.

The Rule goes on to state that, if the motion is made at the close of all of the evidence, the trial court
may reserve ruling on the motion, submit the case to the jury, and decide the motion either before
or after the jury returns a verdict. There is, however, no authority in practice or procedure for the
trial judge to take under advisement a motion for judgment of acquittal made at the close of the
State’s proof, and, when the trial court does so, it constitutes error. Mathis v. State, 590 S.W.2d 449,
453 (Tenn. 1979).4 The Defendant, however, can waive this error under certain circumstances. Id.
When the trial court “overrules, or does not act, upon a motion for acquittal made at the conclusion
of the State’s proof,” the Defendant’s counsel, if convinced of the validity of the motion, must “take

         4
          W e recognize that in State v. Johnson, 762 S.W .2d 110 (Tenn. 1988), the Tennessee Supreme Court
addresses State v. Mathis, stating:

         Tenn. R. Crim. P. 29(a) clearly and explicitly provides that if a defendant’s motion for judgment of
         acquittal at the close of the evidence offered by the State is not granted, the defendant may offer
         evidence without having reserved the right. Criminal Procedure Rule 1 specifically provides that
         “These rules govern the procedure in all criminal proceedings conducted in all courts of record in
         Tennessee.” Any case law to the contrary has been specifically preempted by the rules.

Id. at 115. W hen addressing a petition to rehear by the State, the Court stated:

         W e do not mean [by this statement] to imply that a defendant does not waive a motion for acquittal
         made at the end of the State’s proof by not standing on his motion and proceeding to offer evidence.
         See State v. Thompson, 549 S.W .2d 943, 945 (Tenn. 1977). W e do not think our original opinion
         raises that connotation.

Johnson, 762 S.W .2d at 121.



                                                          -30-
affirmative action to confine the controversy to the proof already presented.” Id. The defendant’s
counsel should, among other things, announce that the defendant stands on his motion and will
present no proof. Id. If the defendant does not do so, his actions waive the trial court’s error. This
Court was asked, but declined, to overrule Mathis and its progeny. See State v. Walker, 713 S.W.2d
332, 333 (Tenn. Crim. App. 1986).

         In the case under submission, applying the aforementioned law, we conclude that the
Defendant waived the trial court’s error by presenting evidence on his own behalf. Therefore, the
trial court could not properly rule on the Defendant’s motion for judgment of acquittal at the motion
for new trial hearing. Our inquiry, however, does not end there.

         Tennessee Rule of Criminal Procedure 29(a) empowers a trial court sua sponte to order the
entry of a judgment of acquittal after the close of the evidence on either side “if the evidence is
insufficient to sustain a conviction of [the charged] offense.” Tenn. R. Crim. P. 29(a). The Rule
goes on to allow a trial judge to reserve decision on a motion for judgment of acquittal made at the
close of all the evidence until after the jury returns a verdict. Tenn. R. Crim. P. 29(b). The issue
before us becomes what is the effect of the trial court’s decision, made after the jury’s verdict of
guilt, to grant a motion of acquittal that was made by the Defendant at the close of the State’s case
but “mistakenly” not ruled upon. As previously stated, to take under advisement a motion for
judgment of acquittal made by the Defendant at the close of the State’s evidence is error. However,
we find nothing in Rule 29 that prohibits the trial court from sua sponte ordering the entry of
judgment of acquittal after all the evidence has been presented from both sides and the jury returns
a verdict. It is the duty of the trial court to do so if the evidence is insufficient to sustain a
conviction. We therefore choose to view the trial court’s judgment of acquittal as to the charge of
attempted first degree murder as a sua sponte order that is within the authority of the trial court
pursuant to Rule 29.

        The distinction between a Rule 29 motion and Rule 33(f) motion becomes important to our
inquiry. In State v. Dankworth, 919 S.W.2d 52, 55 (Tenn. Crim. App. 1995), this Court explained,
“There are important distinctions between the setting aside of a verdict under Rule 33(f) and a
judgment of acquittal under Rule 29 of the Tennessee Rules of Criminal Procedure.” Id. at 56. This
Court said:

       To resolve a motion for a judgment of acquittal under Rule 29, the trial court must
       examine the sufficiency of the evidence. . . . If the trial judge determines that the
       evidence is insufficient to support a jury’s guilty verdict beyond a reasonable doubt,
       a judgment of acquittal is granted. The state may not retry the defendant but has the
       right of appeal.

Id. at 56 (citations omitted). A motion for judgment of acquittal presents a question of law. State
v. Gillon, 15 S.W.3d 492, 496 (Tenn. Crim. App. 1997). The trial judge is concerned only with the
legal sufficiency of the evidence and not the weight of the evidence. Id.



                                                -31-
        Conversely, Rule 33(f) requires the trial judge to independently weigh the evidence and
assess the witness’ credibility. The trial judge must be personally satisfied with the verdict.
Dankworth, 919 S.W.2d at 56. This rule imposes upon the judge the mandatory duty to serve as the
thirteenth juror in every criminal case, and approval by the trial judge of the jury’s verdict is a
necessary prerequisite to the imposition of a valid judgment. State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995). If the trial court disagrees with the jury about the weight of the evidence, the proper
remedy is for the trial court to order a new trial. Gillon, 15 S.W.3d at 500. Accordingly, the State
may retry the defendant for the charge.

        In the case under submission, we conclude that the trial court did not err when it sua sponte
determined that a judgment of acquittal was appropriate as to attempted first degree murder because
the evidence was insufficient to support the jury’s finding of premeditation. By so doing, the trial
court precluded the State from retrying the Defendant on the charge of attempted first degree murder.
We disagree that the trial court had no ability to grant a sua sponte motion for judgment of acquittal.
Further, we agree with the trial court that the evidence was insufficient to support a finding of
premeditation. The Defendant is, therefore, not entitled to relief on this issue.

                   2. Rule 29 Motion for Attempted Second Degree Murder

         The Defendant asserts that the trial court erred when it denied his motion for judgment of
acquittal for the charge of attempted second degree murder. The Defendant implies that because the
trial court granted the judgment of acquittal as to the conviction of attempted first degree murder the
trial court had no option but to grant an acquittal of all the lesser-included offenses.

        Our review of this issue is the same as our review of the issue of whether the evidence is
sufficient to sustain the Defendant’s conviction for attempted second degree murder. See State v.
Price, 46 S.W.3d 785, 818 (Tenn. Crim. App. 2000). As we previously concluded, the evidence
presented at trial, viewed in the light most favorable to the State, is sufficient to support the
Defendant’s conviction of attempted second degree murder. He is, therefore, not entitled to releif
on this issue.
                                       D. Rule 33(f) Motion

        The Defendant next asserts that the trial court erred when it denied his motion filed pursuant
to Tennessee Rule of Criminal Procedure 33(f). The Defendant contends that, if he waived his
motion for judgment of acquittal by not standing on it or objecting to it being taken under
advisement, then, in the face of evidence insufficient to support the jury’s finding of attempted first
degree murder, the trial court’s only recourse was to order a new trial as the thirteenth juror. The
Defendant goes one step further and contends that the evidence is also insufficient to support the
jury’s finding that he acted “knowingly,” and, therefore, the trial court should have granted his
motion for new trial on a charge no greater than attempted manslaughter. Because we previously
concluded that the Rule 29 motion for judgment of acquittal was properly before the trial court based
upon its own motion, we now review whether the trial court erred when it denied the Defendant’s
motion for new trial.


                                                 -32-
        The trial court granted a motion for judgment of acquittal as to the conviction of attempted
first degree murder, and it allowed a conviction of attempted second degree murder to stand.
Therefore, the issue properly before the court was whether a motion for new trial should have been
granted as to the Defendant’s conviction for attempted second degree murder. With respect to this
issue, the trial court found:

        [T]he court considers the guilt of the Defendant on the attempt to commit murder in
        the second degree. And after considering the proof, this Court is of the opinion that
        the Defendant is guilty of attempted second degree murder and is in agreement with
        the jury in that regard. That verdict will stand.

Appellate courts are ill-suited to assess whether the verdict is supported by the weight and credibility
of the evidence. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995). For that reason, in Tennessee,
the accuracy of a trial court’s thirteenth juror determination is not a subject of appellate review. Id.;
State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, once the trial court
approves the verdict as the thirteenth juror, appellate review is limited to determining the sufficiency
of the evidence. Burlison, 868 S.W.2d at 719. In the case presently before us, we have determined
that the evidence is sufficient to sustain the Defendant’s conviction. He is not entitled to relief on
this issue.

                                         E. Pro Se Motions

        The Defendant, while represented by counsel on appeal, has submitted several pro se letters
of correspondence to this Court attempting to supplement the record on appeal and to amend his
appellate brief to add additional claims. However, the Defendant is represented by counsel, and it
has long been our rule that a Defendant has no right to be represented by counsel in this Court and
simultaneously proceed pro se. See State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); State v.
Cole, 629 S.W.2d 915, 917-18 (Tenn. Crim. App. 1981). Furthermore, the subjects of these motions
are more properly addressed by a post-conviction petition filed in the trial court. Accordingly, the
Defendant’s pro se motions are denied, and all improperly submitted evidence and testimony has not
been considered by this Court in its adjudication of this case.

                                           III. Conclusion

        In accordance with the foregoing authorities and reasoning, we affirm the judgments of the
trial court.


                                                         ___________________________________
                                                             ROBERT W. WEDEMEYER, JUDGE




                                                  -33-
