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State v. Willis6/30/2003
y analysis. We are bound by Ely and conclude that second degree murder is a lesser included offense of felony murder. Having concluded this, we additionally conclude the trial court did not err in failing to dismiss.
III. Recall of William Alley
The State originally called William Alley, who testified in general terms that on Saturday, September 8, 1990, he did not see any tire tracks at the Port Royal murder scene, but on Sunday, September 9, 1990, he did see tracks. Subsequently, Michael Greenfield testified that he went to his job site at Port Royal on Sunday to check on things and that he drove his truck near the scene. James Violette testified he met Greenfield that Sunday, around 2:00 to 3:30 in the afternoon. Afterwards, William Alley was recalled by the State in order to give more specific times. He then testified that he saw no tracks around 5:00 in the afternoon on Saturday but saw tracks around 10:00 the next morning.
The defendant contends the trial court erred in allowing this recall, that essentially the State was given a "second bit at the apple," in reference to Alley's testimony concerning the times the tire tracks may have been made. We disagree. The trial court did not err in allowing Alley to be more specific and clarify his prior general testimony.
In State v. Caughron, our supreme court stated, "Allowing the recall of a witness is left to the sound discretion of the trial judge, whose decision will only be disturbed upon a showing of abuse of discretion." 855 S.W.2d 526, 539 (Tenn. 1993). We conclude there is no abuse of discretion in allowing a witness to clarify and make his own prior general testimony more specific. Accordingly, we conclude there was no error by the trial court.
IV. Allowance of Testimony by Agent Breedlove That the Defendant Threatened Him
The defendant contends the trial court erred in allowing Detective Breedlove to testify that the defendant threatened him. His primary contention is that such evidence was unfairly prejudicial to him. The State argues that this issue was already decided on the first direct appeal, is therefore the "law of the case," and that, additionally, the defendant's actions were relevant as evidence of actions that are probative of one's guilt.
We agree with the State that this issue was raised and decided on the first appeal. In the first appeal, the defendant raised the following issue: "Whether the trial court should have excluded testimony of a TBI agent that Willis threatened to snap his neck . . ." State v. Willis, No. 01C01-9802-CC-00068, 1999 Tenn. Crim . App. LEXIS 715, at *1 (Tenn. Crim. App. July 15, 1999, at Nashville) perm. to appeal (denied Oct. 23, 2000). This court concluded that the evidence was circumstantially probative of the defendant's guilt, that the probative value was greater than its prejudicial effect, and that the evidence was properly admitted. Id. at *11.
As such, that decision is the law of the case. As our supreme court recently stated:
The phrase `law of the case' refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case. In other words, under the law of the case doctrine, an appellate court's decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. The doctrine applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication. The doctrine does not apply to dicta.
Memphis Publg. Co. v.
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