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State v. Bush4/14/2004
ist. In addition, he contends that her testimony was irrelevant because Tigg and May may not have known that their trials had been scheduled to start on the same day as the defendant's trial. The state claims that the trial court properly allowed the clerk to testify because Tigg's and May's testimony "left the impression with the jury that no trial date had been set pending the outcome in this case."
Pursuant to T.C.A. § 40-17-106, the district attorney general is to list upon the indictment the names of witnesses expected to be called at trial. However, this duty is directory only. State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim. App. 1984). Accordingly, failure to include a name on the list does not necessarily disqualify that witness from testifying. State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988). However, the statute is intended to prevent surprise to a defendant and to ensure that the defendant will not be handicapped in defense preparation. State v. Morris, 750 S.W.2d 746, 749 (Tenn. Crim. App. 1987). A defendant will be entitled to relief for nondisclosure if he or she can demonstrate prejudice, bad faith, or undue advantage. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v. Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996). The decision to allow a witness to testify is discretionary with the trial court. Id.
The state wanted Ms. Gammon to testify because the defense had questioned Tigg and May about their cases. The trial court ruled that Ms. Gammon could testify because the defense had implied to the jury that May's and Tigg's cases had not been set for trial and in order not "to leave a wrong impression to the jury." Regarding whether May and Tigg knew that their cases had been set for trial, the trial court ruled that the parties could call May's and Tigg's attorneys to testify in order to resolve that question. However, neither party called the attorneys to testify. The defendant has not demonstrated prejudice, bad faith, or undue advantage, and we cannot conclude that the trial court abused its discretion by allowing Ms. Gammon to testify.
VII. DISMISSAL OF ATTEMPTED FIRST DEGREE MURDER CHARGE
Next, the defendant contends that the trial court erred by telling the jury that the state had dropped an attempted first degree murder charge against him. He contends, with no legal argument, that " making this statement, the Trial Judge gave credibility to the State's case." The state argues that although the trial court's statement was incorrect, the misstatement does not constitute reversible error. We agree with the state.
The defendant was indicted for attempted first degree murder, especially aggravated robbery, especially aggravated burglary, and two counts of aggravated assault. However, at some point, the state entered a nolle prosequi on the attempted first degree murder charge. During the jury charge, the trial court stated the following:
The indictment in this case is a formal written accusation charging the defendant with a crime. It is not evidence against the defendant and does not create any inference of guilt. Now, the State has told you that they have determined not to prosecute on attempted first degree murder because they didn't feel like the proof showed that it was attempted first degree murder, that was charged in the first count and that will not be a part of your deliberation.
At the hearing on the motion for new trial, the defendant argued that the state never made any comments to the jury regarding the dismissal of the attempted murder charge and that the trial court erred by making this statement to the j
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