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State v. Green9/1/1999
The defendant, O. B. Freeman Green, Jr., appeals his Carroll County Circuit Court conviction of aggravated assault. See Tenn. Code Ann. § 39-13-102(a)(1)(A) (1997). After a trial in which a jury returned a guilty verdict, the trial court imposed a Range II sentence of nine years to be served in the Tennessee Department of Correction. The only issue raised by the defendant in this appeal is whether the trial court erred in allowing the impeachment of the defendant as a witness by the use of past criminal convictions. We affirm the judgment of the trial court.
The conviction is based upon an offense that occurred in the Carroll County jail. On January 2, 1998, the victim, Larry Sherrod, reported to the Carroll County jail to begin serving a DUI sentence. His wife dropped him off at the jail at 6:55 p.m., and the victim was immediately processed into the facility. He was admitted to his assigned enclosure, which held approximately twenty prisoners. He immediately went to a vacant cot and began to make up his bed, when he was approached by the defendant and another prisoner who was not identified. Sherrod testified that the defendant said to him, "I'll make you my bitch." This comment startled the victim, and he stood up. The defendant then hit him twice, once with each fist, in the nose. The victim's nose began to bleed, and he experienced pain and blurred vision. He tried to kick on the door to the enclosure in order to get the jailer's attention, but the defendant came to him again and warned him about summoning the officers into the enclosure. The victim then went to a telephone that was located within the enclosure, called his wife, and asked her to call the jailer to send someone to help him. The victim's wife testified she received the call at 7:15 p.m.
The victim had bled on his shirt and on the floor, and while he was tending to his injury in the bathroom, the defendant began to clean up the blood from the floor. The victim's wife called the jailer, and officers entered the enclosure and took the victim to the hospital. The victim's nose felt crushed, his eyes were puffy and turning black underneath, and he experienced a headache, disorientation, and pain in his face and teeth.
On January 19, 1998, the victim underwent surgery on his nose; however, both the victim and his wife testified that his face remained disfigured because his nose "leans toward the right." As of the time of trial, the victim continued to experience headaches and sinus problems which he had not experienced prior to the injury. A radiologist who x- rayed the victim's nose testified at trial and confirmed that the nose had been broken.
The defendant called two witnesses who were inmates in the victim's enclosure at the time of the offense. Both of these witnesses denied seeing the defendant assault the victim. The defendant testified somewhat erratically that he did not assault the victim and that the victim came into the jail on December 26, 1997, not on January 2, 1998.
The defendant filed a pretrial motion in limine and asked the trial court to disallow the use his prior convictions as impeachment evidence. The defendant was convicted in 1985 of rape and kidnapping and in 1988 of five counts of forgery. Prior to the state resting its case at the trial, the trial court announced on the record its findings and ruling on the motion in limine. The trial court acknowledged that the prior convictions were "somewhat remote in time," but it found that the date of release from incarceration was within the ten-year period set forth in Tennessee Evidence Rule 609. The trial court then considered whether the danger of unfair prejudice from the use of the convictions for impeachme
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