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State v. Bush4/14/2004
ury. The trial court stated that while it "may have misspoke about that," the error did not warrant a new trial. The defendant contends that the trial court's statement deprived him of the right to a fair trial.
The Tennessee Constitution prohibits judges from commenting on the evidence in a case. Tenn. Const. art. VI, § 9. A trial judge is obligated to "be very careful not to give the jury any impression as to his feelings or to make any statement which might reflect upon the weight or credibility of evidence or which might sway the jury." State v. Suttles, 767 S.W.2d 403, 407 (Tenn. 1989). We note that the defendant did not object to the trial court's statement and did not request a jury instruction to negate any impression the trial court's statement might have made on the state's case. Such failures constitute a waiver of this issue on appeal. Kelly v. State, 477 S.W.2d 768, 770 (Tenn. Crim. App. 1972); T.R.A.P 36(a). In this respect, the defendant has failed to show that the trial court's statement constitutes plain error. See Tenn. R. Crim. P. 52(b).
VIII. OFFENSES COMMITTED BEFORE INDICTMENT
The defendant claims that he is entitled to a new trial because the state failed to prove that the offenses were committed before he was indicted for the crimes as required by T.C.A. § 39-11-201(a)(4). In support of his claim, he cites State v. Brown, 53 S.W.3d 264 (Tenn. Crim. App. 2000), app. denied (Tenn. 2001), in which this court reversed a defendant's convictions for first degree murder and abuse of a corpse because the state failed to prove that the defendant committed the crimes before he was formally charged with the offenses. The state claims that sufficient proof exists to show that the crimes were committed before the defendant was indicted. We agree with the state.
T.C.A. § 39-11-201(a)(4) provides that it is the state's burden of proof in criminal cases to prove beyond a reasonable doubt that the "offense was committed prior to the return of the formal charge." In Brown, this court stated the following regarding this requirement:
Granted, this is an easy matter to prove. . . . reading of the indictment to the jury, coupled with evidence of when the offense was committed, would establish that the offense was committed prior to the return of the indictment. Also, the State could merely ask an appropriate witness whether the actions of the defendant constituting the offense occurred before the defendant was charged with that offense. This would satisfy the requirements of the statute as well.
Id. at 279. Despite the fact that it was "obvious" the crimes were committed before the state indicted the defendant, this court reversed his convictions because there was "no evidence that the indictment was ever read to the jury or shown to the jury, and no witness was asked whether the offense occurred prior to the return of the indictment." Id. at 279-280.
Before opening statements began in the present case, the state waived the reading of the indictments. However, during the jury instructions, the trial court informed the jury that the defendant had been indicted by the grand jury during the February 2001 session of the Rutherford County Criminal Court and then read the charges from the indictments to the jury. During the trial, Mr. Lopez and Detective Goodwin testified that the crimes occurred on July 26, 2000. Thus, we conclude that the evidence sufficiently shows that the crimes were committed before the return of the indictments.
IX. INSTRUCTION ON ATTEMPTS
The defendant contends that the trial court erred by refusing to charge attempted especially aggravated robbery and attempted robbery as le
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