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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
May 9, 2000 Session STATE OF TENNESSEE v. BOBBY J. HUGHES
Direct Appeal from the Criminal Court for Shelby County No. 97-12787 Joseph Dailey, Judge

No. W1999-00360-CCA-R3-CD - Filed January 26, 2001

The Defendant, Bobby J. Hughes, was indicted by the Shelby County Grand Jury for the offense of attempted second degree murder. He was subsequently tried by jury and found guilty of attempted second degree murder. In this appeal as of right, the Defendant argues (1) that the evidence was insufficient to support his conviction; (2) that the trial court erred by allowing into evidence four photographs of the victim's wounds; (3) that the trial court erred by allowing the victim to identify the Defendant from a photograph during trial; (4) that the trial court erred by allowing the State to question the Defendant about prior convictions after defense counsel concluded redirect examination; and (5) that the trial court erred by not instructing the jury on attempted voluntary manslaughter. We conclude that the trial court's failure to instruct the jury on the crime of attempted voluntary manslaughter as a lesser-included offense was plain error and was not harmless beyond a reasonable doubt. Accordingly, we reverse the Defendant's conviction and remand the case to the trial court for a new trial. Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded. ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES CURWOOD WITT, JR., JJ., joined. Randall B. Tolley, Memphis, Tennessee, and John P. Pritchard, Memphis, Tennessee, for the appellant, Bobby J. Hughes. Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General, William L. Gibbons, District Attorney General, and Jennifer Smith Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION In November 1997, the Shelby County Grand Jury indicted the Defendant, Bobby Joe Hughes, for one count of attempted second degree murder. The Defendant was tried by jury on October 7, 1998 and found guilty of attempted second degree murder. On December 4, 1998, the

trial court sentenced the Defendant as a Range III persistent offender to twenty-one years in the Tennessee Department of Correction. The Defendant now appeals, presenting the following issues for our review: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred by allowing into evidence four photographs of the victim's wounds; (3) whether the trial court erred by allowing the victim to identify the Defendant from a photograph after he did not recognize the Defendant in court; (4) whether the trial court erred by allowing the State to question the Defendant about prior convictions after defense counsel concluded redirect examination; and (5) whether the trial court erred by not instructing the jury on attempted voluntary manslaughter. We conclude that the trial court's failure to instruct the jury on the crime of attempted voluntary manslaughter as a lesser-included offense was plain error and was not harmless beyond a reasonable doubt. We therefore reverse the judgment of the trial court and remand for a new trial. The events that gave rise to the Defendant's present conviction occurred on the evening of January 19, 1997. On that evening, the victim in this case, Michael Louis Greer, went to a bar in Memphis called the Filling Station. While there, he encountered Don Petty, a friend whom he had met at the Filling Station and whom he had known for approximately six months. At the end of the evening, Petty asked the victim for a ride "around the corner" to the Defendant's house. The victim testified that he knew the house where Petty wished to go because it was owned by one of his friends, who was renting the house to the Defendant. The victim also testified that he had previously met the Defendant when he stopped by the house with his friend, the owner, to retrieve a fireplace insert from a fireplace inside the home. The victim transported Petty to the Defendant's house, and when they arrived, the three men sat down in the living room. They each drank a shot of whiskey, and the Defendant and the victim began to play a game of chess. After a brief game, the Defendant won the match, prompting the victim to ask Petty, "[D]o you believe I sat here and got beat by a four-eyed, pot bellied . . . needle dicked[,] goat f__ker?" The victim maintained that he was "just teasing," that the statement was "a joke," and that Petty laughed. What happened next is in dispute. The victim testified that the Defendant became irate and went into the kitchen. According to the victim, he apologized to Petty for angering the Defendant and stated that he planned to leave. However, while he was talking to Petty in the living room, the Defendant grabbed him from behind and "ran [a] butcher knife across [his] neck about three times." The victim claimed that the Defendant "never said a word" to him, but "just came up behind [him] and started whacking on [him]." The victim emphasized that he never made any aggressive movements toward the Defendant prior to the attack. According to the victim, Petty intervened and "essentially kept [the Defendant] from cutting [the victim's] head off." The victim's memory of the events which followed was hazy. He explained that his memory had been affected by the traumatic nature of the attack and admitted that he drank a "twelve pack of beer" and one shot of whisky during the eleven hours prior to the incident at issue. However, he remembered fainting in the living room and then taking several steps toward the kitchen before fainting a second time. He proceeded in this manner until he reached the carport, where he fainted -2-

a final time and where he was later found by police. After law enforcement and medical personnel arrived at the scene, the victim was transported to the Regional Medical Center at Memphis for treatment. The Defendant presented a different version of the events of the night. He reported that Petty and the victim arrived at his home with a bottle of champagne and a bottle of Wild Turkey. He claimed that the victim was "pretty drunk" when he arrived at the Defendant's home. He denied having consumed any alcohol before Petty and the victim arrived at his house and maintained that he began to drink only when Petty and the victim arrived. The Defendant claimed that when he won the chess game, the victim "went off like a rocket." According to the Defendant, the victim stood up and told the Defendant, "you mother f__ker, you might have beat me at this chess game, but you can't beat me . . . fighting . . . . ," to which the Defendant responded, "you don't talk to me like that in my house . . . ." Petty then attempted to calm the two men, and the victim picked up the champagne bottle and "smack[ed Petty] up against the head." Petty fell onto the couch with "blood pouring down his face." The Defendant testified that he did not know at that time if Petty was dead. The Defendant testified that the victim then swung the champagne bottle at him, hitting him with the bottle. In response, he jumped across the coffee table and knocked the victim down. The victim got up, and the Defendant began to push him toward the back door. The Defendant testified that because of a serious heart condition, the skirmish exhausted him and caused him to lose his breath. However, he persisted, and the two struggled toward the door. According to the Defendant, he told the victim, "Get your ass out because I'm calling the law on you." The Defendant testified that when they reached the door, the victim turned around, hit him with his fist, and "knocked [him] up against the sink." The Defendant grabbed a knife from the sink. The Defendant again told the victim to "get the hell out of here" and threatened to cut his head off, but the victim "kept reaching back . . . and grabbing [the Defendant's] crotch." The Defendant stated that he cut the victim while struggling to force the victim outside and then "pushed [the victim] right out the door." The Defendant explained that he cut the victim because the victim was acting "crazy" like "a wild maniac," and he was afraid. He also explained that he cut the victim's neck more than once because the victim continued to struggle with him. After the victim was outside the house, the Defendant called 911 and reported, "[A] guy's throat [is] cut in the front of the house [and t]here's a man hurt inside." The Defendant testified that he then went back into the living room to check on Petty while waiting for an ambulance to arrive. When officers arrived at the scene, they found the victim lying across the back of a car parked in the Defendant's driveway. He was bleeding profusely from his neck. Inside the home, officers found the Defendant and Petty sitting in the living room. Officer Thomas Edwin Avery of the Memphis Police Department testified that Petty had an injury to his head and that he had cuts and blood on his hands. Avery stated that when he arrived at the scene, Petty was extremely intoxicated, belligerent, and uncooperative. He testified that the Defendant was also intoxicated and uncooperative. Upon further investigation, officers discovered a bloody butcher knife on the washing machine. Avery testified that he saw blood in the kitchen sink, on the washing machine, in the kitchen, and outside where the victim was found. The State entered into evidence a -3-

photograph showing a path of blood droplets extending across the Defendant's kitchen floor to a doorway. The officers did not find any blood in the living room or any broken glass in the home. Due to Petty's injuries, Officer Avery initially believed that Petty may have been involved in the incident and therefore arrested him; Petty was later released from custody. The State introduced into evidence a statement made by the Defendant to police on January 20, 1997. In his statement, the Defendant summarized the events of January 19, 1997 as follows: From what I recall, [the victim] hit [Petty] and blood started splattering. And I went to the kitchen, and he hit me, and there was a knife, either in the sink or on the counter. And I grabbed it and started at him to keep him off me. And then he went outside and I called the police. . . . [Petty] said we had a little argument over the chess game, but I don't remember what we argued about, because we had all been drinking. When asked what the victim used to hit him, he replied, "I don't know. He hit me hard. It may have been with his fist." The State also introduced into evidence photographs of the Defendant's neck wounds made after he had been treated at the hospital. The Defendant testified that he underwent two and a half hours of surgery to repair the wounds inflicted by the Defendant and that he received almost three hundred stitches to his neck. He stated that he spent three days in the hospital following the assault, that he still bore scars from the assault, and that the injuries to his neck still caused him pain. To offer support for the Defendant's version of the events on the night of the crime, the defense called Don Petty to testify. Petty testified that he had known the Defendant for approximately twenty-five years. He stated that he had known the victim for approximately six months at the time of the crime and reported that he did not know the victim well. With regard to the events on the night of the crime, Petty recalled that on their way to the Defendant's home, he and the victim stopped at a liquor store and purchased "a fifth of 101 and a bottle of champagne." He stated that after they arrived at the Defendant's house, the victim and the Defendant entered into a chess match, which the Defendant won. After the match, the two began to argue. Petty reported that the victim "called [the Defendant] some names" and then challenged the Defendant to fight. Contrary to the victim's testimony that he had no knowledge of how Petty was injured on the night at issue, Petty testified that when he stood up to attempt to quell the dispute, the victim hit him in the head with the champagne bottle, knocking him unconscious. Petty stated that he did not think the bottle broke when it hit him. Petty recalled that when he returned to consciousness, the Defendant told him he thought he had hurt or killed the victim. The police arrived shortly afterwards. Petty admitted that he consumed quite a bit of alcohol on the January 19, 1997. He recalled that while at the Defendant's house, he, the Defendant, and the victim consumed an entire bottle of whisky, estimating that they had each drunk about four shots each. Petty also testified that he did not remember having any cuts on his hands on the night of the crime, but admitted that he probably told police officers that his hand was cut. He stated that he may have received a cut to his hand -4-

while working and testified that he remembered having blood on his hands from holding his injured head. I. SUFFICIENCY OF THE EVIDENCE The Defendant first challenges the sufficiency of the evidence used to convict him. In his brief, the Defendant states that [he] acted in self defense in this matter as supported by the great weight of both the testimony and the forensic evidence in this cause. However, even if the jury did not believe the theory of self defense, there is no evidence in the record that [he] intentionally attempted to knowingly kill [the victim]. He further argues that the State failed to show that the Defendant acted without provocation. The Defendant insists that "the victim's version [of events on the night of the crime] has no corroboration and only contradiction in the record." In support of this contention, he points out that no blood was found in the living room of the Defendant's home, where the victim alleged that the attack took place. He also emphasizes that the victim could not identify the Defendant as his assailant in the courtroom.1 Furthermore, he stresses inconsistencies between the victim's testimony at the preliminary hearing and his testimony at trial.2 Finally, he argues that the victim's claim that he did not strike or threaten anyone on the night of the crime is refuted by the injury to Petty's head and testimony by both Petty and the Defendant that the victim struck Petty on the head with a champagne bottle. When an accused challenges the sufficiency of the evidence, an appellate court's standard of review is whether, after 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. Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990). In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. On the contrary, this Court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record, as well as all reasonable inferences which may be drawn from the
1 2

See discussion infra concernin g the victim's iden tification of the D efendant fro m a photo graph du ring trial.

On cross-examination, the victim admitted that although he testified at the preliminary hearing that he had drunk only six beers on January 19, 1997, he had actually drunk twelve beers. He also conceded that he was intoxicated on the night of the crime.

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evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). 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. Id. Our criminal code defines criminal attempt as follows: (a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: (1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be; (2) Acts 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; or (3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense. (b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person's entire course of action is corroborative of the intent to commit the offense. Tenn. Code Ann.

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