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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

FILED

STATE OF TENNESSEE, Appellee, VS. CORY LAMONT GENTRY, Appellant.

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September 14, 1998 C.C.A. # 02C01-9708-CC-00304 Cecil Crowson, Jr. Appellate C ourt Clerk OBION COUNTY Honorable W illiam B. Acree, Jr., Judge (Reckless Endangerment; Possession of a Weapon)

For Appellant: C. Michael Robbins 3074 East Street Memphis, TN 38128 (on appeal only) Joseph P. Atnip District Public Offender P.O. Box 734 Dresden, TN 38225

For Appellee: John Knox Walkup Attorney General & Reporter Marvin E. Clements, Jr. Assistant Attorney General 425 Fifth Avenue North Cordell Hull Building, 2nd Floor Nashville, TN 37243-0493 Allen Strawbridge Assistant District Attorney General P.O. Box 218 Union City, TN 38261

OPINION FILED: _____________________

AFFIRMED AS MODIFIED

GARY R. WADE, JUDGE

OPINION The defendant, Cory Lamont Gentry, was convicted of Class E felony reckless endangerment and unlawful possession of a weapon. The trial judge imposed concurrent Range II, four-year sentences for each conviction, to be served consecutively to prior unserved sentences.

In this appeal of right, the defendant presents the following issues for review: (I) whether the trial court erred by refusing to allow the defendant to offer his alibi proof; (II) whether the trial court erred by denying the defendant a new trial on the basis of newly discovered evidence; and (III) whether the trial court erred by imposing an excessive sentence. We modify the defendant's sentences for each offense to Range I, two-year terms, which are to be served concurrently with each other but consecutively to his prior unserved sentences. Otherwise, the judgment of the trial court is affirmed.

On August 1, 1996, at approximately 1:40 P.M., Teresa Matheny, a pest-control technician, was sitting in her work truck at the intersection of Greenwood and College Street in Union City. She then saw the defendant, who was wearing a red, white and blue shirt, draw a gun and fire a shot down Greenwood toward Main Street. The defendant fired a second shot toward the pavement and then looked straight at Ms. Matheny as he handed a friend the weapon. Ms. Matheny went into a nearby school, telephoned the police, and reported the incident.

Near the time of the shooting, Officer Stephanie Marshall, who lived

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nearby, was traveling through the Greenwood and College intersection on her way to work when she saw the defendant, who was wearing a red, white and blue shirt, and Carale Shields standing near the street. Officer Marshall knew that the defendant lived in close proximity to the intersection. Seconds after her arrival at the police station, she received the report that shots had been fired at the intersection by an individual wearing a red, white and blue shirt.

Jermaine Fuller was a witness for the defense. He claimed that he was at the intersection with Carale Shields and Mike Shields near the time of the shooting. After talking with the two men for approximately ten minutes, Fuller left on his bicycle to get a soda. The others soon dispersed. Upon his return, Fuller saw someone fire a gun and then leave the area. Although he could not identify the shooter, Fuller testified it was not the defendant.

The defendant, who testified in his own behalf, admitted that he was in the area when the shooting occurred. He claimed that he had been visiting the residence of his son, who lives on that corner, when he heard gunshots. The defendant, who acknowledged two prior convictions for sale of a controlled substance, contended that he merely went outside to investigate and had nothing to do with the gunfire.

(I) Initially, the defendant claims that the trial court erred by refusing to allow his alibi witnesses to testify. Rule 12.1, Tenn. R. Crim. P., provides, in pertinent part, as follows: Notice of Alibi.--(a) Notice by Defendant.--Upon written demand of the district attorney general stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or 3

at such different time as the court may direct, upon the district attorney general a written notice of an intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. *** (d) Failure to Comply.--Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his or her own behalf. (e) Exceptions.--For good cause shown, the court may grant an exception to any of the requirements of this rule. Tenn. R. Crim. P. 12.1 (emphasis added).

The state filed a demand for notice of alibi on December 9, 1996. The defendant never filed a written response. On December 31, only two days prior to trial, defense counsel faxed a document to the state indicating that he intended to call Emma Treadwell as an alibi witness. The document contained only the witness' name and phone number. On January 2, 1997, the day of the trial, the defendant gave the state the name of another potential alibi witness, Tracy Boucher.

Claiming that it had not received the opportunity to verify or investigate the alibi, the state asked the trial court to exclude the witnesses. While the defendant conceded that he had violated Rule 12.1, he asked for relief under subsection(e), which provides that sanctions need not be imposed if the defendant has "good cause" for not complying.

Defense counsel explained that he had learned about the witnesses

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only two days before trial. When the trial judge asked why the defendant had not told his counsel about the possible alibi sooner, defense counsel responded that his client "didn't have a way to Dresden," the location of his law office. The expected testimony of the two alibi witnesses was summarized by defense counsel as follows: Miss Treadwell, is going to testify that Cory Gentry was in [her] house when she heard the gunfire. The other witness is going to say that she did not hear the gunfire, but she does know that Mr. Gentry was in the house.

The trial court ruled the witnesses could not testify: The defendant has failed to show good cause for failure to comply. He has offered no satisfactory reason for failing to inform his attorney of the names of these witnesses. The Court further notes that the defendant has been in court at least on two previous occasions with his attorney, that being October 14, 1996 and October 28, 1996 for arraignment and also for setting the case for trial, and there was certainly ample opportunity at that time to inform his attorney of the names of these witnesses, and he did not do so. The reasons given for later failing to inform his attorney of these witnesses are not accepted by the State. The Court does not believe those statements made by the defendant. ...The witnesses ... will not be permitted to testify in this case. The defendant asserts that the ruling effectively denied him the basic right to present a defense.

"For good cause shown, the court may grant an exception to any of the requirements of this rule." Tenn. R. Crim. P. 12.1(e) (emphasis added). This court reviews the trial judge's ruling under an abuse of discretion standard. See, e.g., State v. Andrew W. Keeley, No. 01C01-9403-CR-00095, slip op. at 12 (Tenn. Crim. App., at Nashville, Aug. 25, 1995); State v. Terry Lewis Barr, No. 89-267-III, slip op. at 8 (Tenn. Crim. App., at Nashville, June 8, 1990). When there is technical violation of the rule, the trial judge may exclude the evidence without abusing his discretion. Id.

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In State v. Shannon Blaylock, No. 03C01-9412-CR-00435 (Tenn. Crim. App., at Knoxville, Dec. 13, 1995), however, two of the three panelists, one concurring and the other dissenting, observed that when disallowance of an alibi witness does in fact strip the accused of his defense, the trial court's discretion should be subjected to careful scrutiny. Judge Hayes, in the separate concurrence to the lead opinion upholding the conviction, wrote that the "trial court should weigh the 'due process' rights of the defendant to present witnesses ... against the interest of the State in avoiding surprise or 'trial by ambush.'" Special Judge Turnbull, writing in dissent, argued that the Tennessee courts should adopt the guidelines used in federal courts when applying Rule 12.1, Tenn. R. Crim. P.; it was his view that the "harsh" exclusion of the testimony for failure to provide timely notice "denuded the defense of its most important witness" and violated due process.

This court has acknowledged that the Tennessee Rule on disclosure of an alibi defense "conforms to the federal rule" and, accordingly, is given the same interpretation. State v. Sammie Lee Taylor, No 02C01-9501-CR-00029, slip op. at 18, n.17 (Tenn. Crim. App., at Jackson, Oct. 10, 1996) (internal quotations omitted). The federal courts have found the following factors relevant: (1) the prejudice that resulted to the government from the failure to disclose; (2) the prejudice suffered by the defendant if the sanction of exclusion is employed; (3) the reasons for nondisclosure; (4) the extent that harm from nondisclosure is mitigated by subsequent events; (5) the weight of evidence supporting the defendant's guilt; and (6) any other factors arising out of the circumstances of the case.

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United States v. Wood, 780 F.2d 555, 560-61 (6th Cir. 1986); United States v. White, 583 F.2d 899, 901-02 (6th Cir. 1978); United States v. Baron, 575 F.2d 752, 757 (9th Cir. 1978).

While we believe that the rule of witness exclusion should be utilized only in more extreme circumstances, we cannot conclude, by the use of the factors, that the trial court erred on this occasion. By learning about the alibi witnesses on the eve of trial, the state was unable to investigate the alibi. Unlike the facts in Blaylock, where the witness was "not unknown to the state," the state in this instance was familiar with neither of the excluded witnesses. Blaylock, Sp. J. Turnbull, dissenting opinion, slip op. at 2. Considering the ease with which an alibi can be fabricated, the State has both an 'obvious and legitimate interest in protecting itself against an eleventh hour defense.'" Taylor, slip op. at 18 (quoting Williams v. Florida, 399 U.S. 78, 81 (1970)).

The second factor, prejudice suffered by the defendant, also weighs favorably for the state. The defendant has failed to demonstrate any prejudice. Although both witnesses were present, neither was called to make a record of what their testimony would have been. See Tenn. R. Evid. 103(2). "In order for an appellate court to review a record of excluded evidence, it is fundamental that such be placed in the record in some manner." State v. Goad, 707 S.W.2d 846, 854 (Tenn. 1986). Statements of counsel are not evidence. Trotter v. State, 508 S.W.2d 808, 809 (Tenn. Crim. App. 1974). Without the witness's testimony, we cannot conclude the defendant was prejudiced.

There are other factors favorable to the state. Defense counsel submitted that the defendant was unable to "get to Dresden" to inform him of the

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alibi witnesses. Union City and Dresden are not all that far apart, especially when liberty interests are at stake. A telephone message would have been enough. That the defendant had made two court appearances without any hint of possible alibi witnesses reflects upon his credibility. The flimsiness of the excuse provided renders suspect the legitimacy of the witnesses. The most obvious question is why the defendant, despite several prior opportunities, waited several months before telling his counsel about the witnesses. The record provides no answer. Implicit in the observations made by the trial judge is a lack of confidence in the truthfulness of the defendant. While matters of credibility are generally best left to the jury, the record supports the skepticism of the trial court about the motives of the defendant.

The remaining factors are neutral, neither helpful to the state nor the defense. Obviously, each case must be resolved on its own particular circumstances. Exclusion is a harsh rule. The ultimate test is one of fundamental fairness. Here the record does not warrant a conclusion that the trial judge abused his discretion or that the defendant was denied his fundamental right to a fair trial.

(II) The defendant next argues the trial court erred by denying his motion for a new trial on the basis of newly discovered evidence, i.e., that someone else confessed to the crime. At the hearing on the motion for new trial, seventeen-yearold Carale Shields testified that on the afternoon of August 1, 1996, he and "Shack" were at the intersection "playing with ... a pellet gun." Shields admitted shooting the gun in the air and claimed he was wearing a blue, red, and white striped shirt at the time. On cross-examination, Shields explained his absence at the trial by asserting that he was in Dyersburg, "twenty miles down the road," when the trial took place. Shields acknowledged, however, that "anybody that wanted to find [him] could

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have." Cory Bardwell, who was on work release from jail at the time of the offense, attempted to corroborate Shields' testimony. He claimed to have seen Shields fire the gun in the air. The trial court denied the motion for new trial, stating "I do not believe a word they said."

To warrant a new trial on grounds of newly discovered evidence, the defendant must have exercised reasonable diligence in searching for the evidence prior to trial; the evidence must be material; and the evidence, if produced at trial, would have likely changed the results of the trial if accepted by the jury. State v. Goswick, 656 S.W.2d 355, 358-59 (Tenn. 1983); State v. Burns, 777 S.W.2d 355 (Tenn. Crim. App. 1989). When the newly discovered evidence only tends to contradict or impeach the trial evidence, however, a new trial is not usually warranted. State v. Lequire, 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981). When the trial court overrules a motion for a new trial based on newly discovered evidence, that ruling will not be reversed on appeal absent a clear abuse of discretion. State v. O'Guin, 641 S.W.2d 894, 898 (Tenn. Crim. App. 1982). It is proper for a trial court to deny a motion for a new trial based upon newly discovered evidence when the defendant fails to show that he exercised reasonable diligence in the procurement of a witness at the original trial. Hawkins v. State, 417 S.W.2d 774 (Tenn. 1967).

There is no proof that the defendant exercised reasonable diligence in locating these witnesses. During direct examination at trial, the defendant unexpectedly claimed that he had "heard" that Carale Shields had committed the crime. While the trial court granted the state's motion to strike the testimony, it is apparent from his statement that the defendant knew about Shields before the trial. Jermaine Fuller, a defense witness, testified at trial that he, the defendant and

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Shields were together at the intersection for approximately ten minutes before the incident, implying that the defendant is at least acquainted with Shields. Officer Marshall also testified at trial that she saw the defendant and Shields together at the intersection. The record establishes that the defendant knew about Shields in advance of trial.

In his motion for new trial, the defendant filed an affidavit claiming that, after making bail, he tried and failed to locate Shields. The affidavit fails to include what, if any, specific efforts the defendant made. The grant of a new trial solely on the basis of an affidavit by the defense would deny the state the opportunity to test the accuracy or truthfulness of the information contained in the affidavit. Hicks v. State, 571 S.W.2d 849, 852 (Tenn. 1978). Testimony should have been offered at the hearing on the motion for new trial. Id. Because there is no competent proof that the defendant exercised reasonable diligence in searching for the evidence prior to trial, the trial court did not abuse its discretion by denying the motion.

(III) The defendant complains that his sentence is excessive. He raises the following specific challenges to his sentence: (a) the trial court erred by finding him to be a multiple offender; (b) the trial court erred by using the enhancement factor that the defendant has shown an unwillingness to comply with the terms of an alternative sentence; and (c) the trial court erred by ordering the sentences to be served consecutively to his prior unserved sentences. Convicted of two Class E felonies, the defendant received Range II, four-year terms for each offense. A Range II sentence for a Class E felony is two to four years. For reasons explained below, we must modify both sentences to Range I, two-year

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terms, the maximum available for a Range I Class E felony. The terms must be served consecutively to his prior sentences.

The presentence report shows that the defendant, who has a high school diploma and a limited work history, has prior convictions for disorderly conduct, criminal trespassing, and the sale of cocaine. He was on probation for two drug convictions when the weapons and endangerment offenses occurred.

When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann.

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