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State v. Polston8/19/2004
s available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." The Defendant claims that he might have changed his trial strategy if he had known of the statement prior to trial. In addition, the Defendant also asserts that the statement's admission damaged his credibility. The State contends that the Defendant has not shown prejudice in this case. We agree with the Defendant. If the Defendant had known about the recorded summary of his telephone conversation with the detective, the Defendant may have changed his trial strategy by not testifying and relying upon other witnesses' testimony during the trial. Additionally, the Defendant testified that he acted in self-defense when he struck the victim, and the Defendant's credibility to the jury was a crucial aspect of his claim of self-defense. The Defendant was notified moments before Detective Wright testified that the Defendant had made a prior statement to the detective. The statement was used by the State in rebuttal to attack the Defendant's credibility. Moreover, as the Defendant noted in his objections at trial and in his appellate brief, he may have altered his voir-dire strategy if he had known about the statement prior to trial. While we have held that the evidence was legally sufficient to support the Defendant's conviction, the State's proof of the Defendant's guilt was not overwhelming. We conclude that the error more probably than not affected the judgment below. Tenn. R. App. P. 36(b); see Hicks, 618 S.W.2d at 515 (holding that a Rule 16(a)(1)(A) violation was not harmless when the defendant's statement was used to impeach the defendant during cross-examination); State v. Terry Lynn Carter, No. W2001-02329-CCA-R3-CD, 2003 WL 402786, at *8 (Tenn. Crim. App., at Jackson, Feb. 20, 2003), no perm. app. filed (holding that a Rule 16(a)(1)(A) violation was not harmless when the State used the Defendant's written statement to impeach him on cross-examination and the State's proof of the Defendant's guilt was not overwhelming). Therefore, we reverse the Defendant's conviction and remand his case for a new trial.
C. Flight Instruction
The Defendant contends that the trial court erred in charging the jury with flight. The trial court instructed the jury that:
The flight of a person accused of a crime is a circumstance which, when considered with all the facts of the case, may justify an inference of guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution for the crime charged. Whether the evidence presented proves beyond a reasonable doubt that the defendant fled is a question for your determination. The law makes no precise distinction as to the manner or method of flight. It may be open or it may be a hurried or concealed departure or it may be a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and a subsequent hiding out, evasion or concealment in the community or a leaving of the community for parts unknown to constitute flight. If flight is proved, the fact of flight alone does not allow you to find that the defendant is guilty of the crime alleged. However, since flight by a defendant may be caused by a consciousness of guilt, you may consider the fact of flight if flight is so proven together with all of the other evidence when you decide the guilt or innocence of the defendant. On the other hand, an entirely innocent person may take flight and such flight may be explained by proof offered or by the facts and circumstances of the case. Whether there was flight by
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