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State v. Davis8/17/1999
he did take photographs. The trial court denied defense counsel's request to recall Officer Harris, stating that he had had his opportunity to cross-examine him. The record shows that defense counsel had the accident report in his possession when he cross-examined Officer Harris and in fact had attempted to impeach his trial testimony on other grounds by using the accident report.
The decision to allow the recall of a witness rests within the trial court's discretion. See State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993). Here, the only reason defense counsel wished to recall Officer Harris was to attempt to impeach his previous testimony by using the accident report. As the defendant admits, however, the defense had a copy of the accident report during Officer Harris' testimony and defense counsel even attempted to impeach his testimony in other regards using the accident report. Thus, because defense counsel had ample opportunity to attempt to impeach Officer Harris during cross-examination, the trial court did not abuse its discretion by not allowing the defendant to recall Officer Harris.
Even assuming the trial court abused its discretion, any resulting error is harmless. During the hearing on the defendant's motion for new trial, Officer Harris testified he indicated on the accident report that no photographs were taken because he did not have any photographs "of substantial quality." We must assume that if he had been asked to explain to the jury the seeming discrepancy between his trial testimony and the accident report, Officer Harris would have replied similarly. Moreover, defense counsel cross-examined Officer Harris about other apparent discrepancies between his trial testimony and what he recorded on the accident report. Specifically, Officer Harris testified during trial that the car keys the defendant had given him were bent and that there had been blood on the car windshield, but he did not note either of these details in the accident report because, as he maintained, he had noted only important details on the accident report. Given that Officer Harris had an explanation for indicating on the accident report that no photographs were taken and that defense counsel had attempted to impeach Officer Harris' trial testimony on two other points by using the accident report, we cannot conclude that the jury's verdict was affected by the trial court not allowing defense counsel to recall Officer Harris for the sole purpose of attempting to impeach his credibility further with the accident report. See Tenn. R. Crim. P. 52(a) (error is harmless unless it affirmatively appears to have affected the result of the trial on the merits).
The defendant also suggests that he was deprived of his due process rights when the State failed to produce Officer Harris' photographs despite his motion for discovery requesting, inter alia, photographs of the crime scene. The defendant claims the photographs "could have . . . shown Officer Harris to be untruthful" and "may well have shown" that the driver did not hit the windshield as Officer Harris testified. The defendant fails to cite any authority supporting his position, thus waiving this argument. Rules of the Court of Criminal Appeals of Tennessee 10(b). Moreover, nothing in the record shows that the photographs were exculpatory or otherwise supports the notion that the State violated the rules of discovery. Accordingly, this argument will not afford the defendant relief.
Finding no merit to the defendant's arguments, the trial court's judgment is affirmed.
JOHN H. PEAY, Judge
CONCUR: DAVID G. HAYES, Judge JOHN EVERETT WILLIAMS, Judge
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