State v. Smith, 1991 Tenn. Crim. App. LEXIS 184 (TN Ct. App. 1991)

STATE OF TENNESSEE, Appellee v. BOBBY H. SMITH, Appellant

C.C.A. No. 01-C-01-9009-CR-00235

Court of Criminal Appeals of Tennessee, at Nashville

1991 Tenn. Crim. App. LEXIS 184

March 14, 1991, Filed

COUNSEL:
For the Appellant: Wendy Lynne Longmire, Nashville, Tennessee, Thomas H. Bilbrey, Lafayette, Tennessee.
For the Appellee: Charles W. Burson, Attorney General of Tennessee and Bettye Springfield-Carter, Assistant Attorney General of Tennessee, Nashville, Tennessee, Lawrence Ray Whitley, District Attorney General, Gallatin, Tennessee.

JUDGES:
Adolpho A. Birch, Jr., Judge. Robert K. Dwyer, Judge, Paul G. Summers, Judge, concur.

OPINION BY: BIRCH

OPINION

The Criminal Court for Macon County entered judgment upon a jury verdict convicting the defendant, Bobby H. Smith, of murder in the second-degree 1 and use of a firearm in committing a felony. 2 The trial judge sentenced him to consecutive terms of thirty-five years and five years, respectively, in the Department of Correction. The defendant’s effective sentence is forty years.

Smith brings this appeal as a matter of right. In addition to asserting that the evidence is, as a matter of law, insufficient to support the jury’s verdict, Smith contends that the trial judge erred reversibly in the following particulars:

(1) In refusing to grant defendant’s motion for change of venue;
(2) In refusing to grant defendant’s motion for individual voir dire;
(3) In refusing to grant two of defendant’s challenges for cause;
(4) In allowing potential jurors to separate;
(5) In admitting defendant’s extra-judicial statement;
(6) In admitting certain photographs of the victim taken at the scene; and
(7) In instructing the jury.

Additionally, the defendant says that the sentence imposed by the trial judge is excessive.

We have thoroughly examined the record and carefully considered the issues raised. We find that the judgment must be affirmed.

The proof of record established that David Green, the victim, began working for the defendant, Bobby Smith, as a young lad of twelve. Their relationship grew and prospered over the years, and ultimately, the Smith family treated Green as one of theirs. Green accepted this closeness with the Smiths, and he often took meals with them and regularly joined them in social activities. This close relationship continued after Green married, and the Smiths welcomed his bride, Sara, into their family circle. Green and his wife reciprocated by entertaining the Smiths. Also, Smith employed the Greens to help him with his crops.

The relationship between the two families all but dissolved in the fall of 1984, and the reason for this turnabout was that Green believed his wife and Smith were amorously involved. Because of this belief, Green abruptly terminated his wife’s employment with Smith; Smith, in turn, fired Green. Nothing in the proof, however, suggested a factual basis for this belief; furthermore, the existence of such an involvement was negated in the state’s proof as well as in the proof adduced by the defendant.

Between 1984 and the date of the killing, Green confronted Smith at least two more times. On one such occasion, Green went to Smith’s house and threatened to assault Smith. When Smith asked Green “what amount of money it would take to pay him [Green] off and just forget all of this,” Green replied, “$ 15,000.” That evening, Green enlisted a friend to deliver a note to Smith directing him to appear at a local bank at 8 o’clock the following morning. Green then telephoned the Smith’s residence and told Smith’s wife to tell Smith to be at a certain bank at 8 a.m. with $ 15,000.

Smith was concerned for his safety, and he discussed Green’s conduct toward him with the Sheriff and District Attorney General. Meanwhile, Smith’s two daughters and Green’s sister sought advice from the General Sessions Judge and later, from the Sheriff. The Sheriff paid Green a visit. Their meeting was congenial; Green was apparently becalmed.

The second confrontation occurred in June 1987. This time, Green challenged Smith to fight. Smith refused the challenge, and nothing else happened on this occasion. From all indications, Green persisted in his conviction that Smith was illicitly consorting with his wife. His rage smoldered without reported incident until the morning of October 5, 1988.

After having been advised of his Miranda rights at the hospital shortly after the homicide, Smith related to James Mercer, Sheriff of Macon County, his version of the events. Five days later, he gave Mercer a six-page written statement.

In this statement, Smith related that at 7:30 a.m. on October 5, 1988, he received a telephone call from Green announcing that he was “coming after my damn deer head 3 and I’m going to kill you if I can.” Smith told Green to arrive at 8 a.m.; he called his wife at her place of employment and summoned her home. He made certain that his weapons, a single-shot .12 gauge shotgun and a .22 caliber automatic rifle, were loaded and accessible. Upon Green’s arrival in Smith’s driveway, Smith positioned himself bedroom and watched Green through the partially-closed bedroom door. Green left his truck running and its door open. He got to the kitchen door of Smith’s house and shouted, “Bobby, open the door, I want in.” Thereupon, he broke the glass storm door, cut the screen, broke through the wood entry door, and entered Smith’s kitchen. Smith thought that Green was unarmed; when he came into full view, Smith aimed and shot Green. The .12 gauge deer slug hit Green in the stomach. As Green was falling, he fired at Smith with a .357 Magnum. Two rounds struck Smith — one entered his leg and the other clipped his ear. Smith tended to his wounds as best he could. Since he could not see Green, he picked up the rifle and waited.

Smith’s wife arrived shortly thereafter. Smith asked her where Green was, and she told him Green was lying beside his truck. As Mrs. Smith headed for the telephone to get help, Smith headed for Green. He found Green sitting beside his truck, wounded. Green begged, “Bobby, don’t shoot me anymore.” As Smith related, “I think I unloaded my .22 on him. I wanted to make sure he was dead.” Most of the bullets entered Green’s back. He then used the rifle to strike Green’s head with blows so forceful that he broke he rifle stock into three pieces and nearly decapitated Green. Green’s condition notwithstanding, Smith retrieved his shotgun from the house and struck Green with it, intending, as he described it, to break it, too, over Green’s head. Failing this, he threw it down. He went inside, called one of his daughters to tell her about the events, and then called the Sheriff to clarify the excitedly-muddled directions to his house his wife had given. Green did not survive.

Charles W. Harlan, M.D., Chief Medical Examiner for the State of Tennessee, performed the autopsy. He determined that death occurred as a result of a shotgun wound, eleven gunshot wounds, and blows to the head struck with a blunt object causing lacerations, multiple skull fractures, and “disruption” of the brain. More importantly, Dr. Harlan testified that Green was probably alive when Smith crushed his skull.

Although the defendant declined to testify, as was his privilege, he did present several witnesses. Significant among them was George Copple, Ph.D., a clinical psychologist.

Prior to trial, Dr. Copple gave Smith one psychological test and reviewed the results of an additional psychological test administered by another psychologist. On this basis, he testified by deposition. At the outset, he testified that Smith was neither delusional nor insane at the time of the occurrence. He described Smith’s mental state as one of “justifiable outrage.” He testified that Smith’s conduct after Green had been rendered helpless was merely the culmination of his rage and the final component of his reaction to Green’s unprovoked attack. He opined further that Smith felt justified that his conduct was the appropriate response in defense of himself and his property. In the opinion of Dr. Copple, Smith’s conduct toward Green inside and outside the house was but a single, rather than indivisible episode.

II

The defendant insists that the evidence arrayed against him was insufficient, as a matter of law, to support the jury’s verdict convicting him of second-degree murder. In support of this insistence, he poses two theories: (1) that the proof of malice is insufficient to support murder in the second-degree, and (2) that the killing was justifiable either by statute 4 or by self-defense.

When a defendant challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced at trial is sufficient “to support the finding by the trier of fact of guilty beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct as well as circumstantial evidence. State v. Brown, 551 S.W.2d 329 (Tenn. 1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895 (1961); State v. McAfee, 737 S.W.2d 304 (Tenn. Crim. App. 1987); State v. Hailey, 658 S.W.2d 547 (Tenn. Crim. App. 1983).

In determining the sufficiency of the evidence we do not reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978); State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978); State v. Grace, 493 S.W.2d 474 (Tenn. 1973). Nor may we substitute our inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856 (1956). To the contrary, we are required to afford the state the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Teel, 793 S.W.2d 236 (Tenn. 1990); Cabbage, 571 S.W.2d at 835; State v. Davis, 798 S.W.2d 268 (Tenn. Crim. App. 1990).

Questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this court. State v. Tuggle, 639 S.W.2d 913 (Tenn. 1982); Cabbage, 571 S.W.2d at 835; Grace, 493 S.W.2d at 476. In Grace, our supreme court stated, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State.” Grace, 493 S.W.2d at 476.

Since a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, 5 the accused has the burden of proving to this court that the evidence is insufficient to support the verdict returned by the trier of fact. Tuggle, 639 S.W.2d at 914. This court will not disturb a verdict of guilt on the facts unless the evidence contained in the record is insufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. 639 S.W.2d at 914.

With regard to the defendant’s first contention, malice us an essential ingredient of second-degree murder, and it may be either express or implied. Express malice is actual malice against the party slain and exists where a person actually contemplates the injury he inflicts. Fox v. State, 441 S.W.2d 491 (Tenn. Crim. App. 1968). Malice may be inferred from proof of certain circumstances: namely, the brutality of the attack, the number of shots or blows delivered, or the fact that the victim was not armed. State v. Garland, 617 S.W.2d 176 (Tenn. Crim. App. 1981). In any event, it is the duty and prerogative of the jury to determine the existence of malice from all the facts and circumstances. Braziel v. State, 529 S.W.2d 501 (Tenn. Crim. App. 1975).

The defendant’s second contention is that the killing was justifiable by application of Tenn. Code Ann. § 39-2-235 (Supp. 1988), which provides:

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

Clearly, this statute establishes a presumption that one who uses deadly force within his residence under certain circumstances holds a reasonable fear of imminent peril of death or great bodily injury. The statute further provides that any homicide committed under the circumstances prescribed is justifiable as a matter of law. But this statute is not tantamount to permission to kill. Beyond its self-defined limits, the application of the statute is subject to the obvious requirement that the jury, and it alone, may determine from all of the proof presented whether to accord the protection of the statute to an accused. In the present case, the jury by its verdict decided that the defendant’s actions were not accomplished within the statute and denied him its protection.

Similarly, neither is the law of self-defense absolute. Restrictions often apply: for example, all authorities agree that the person assailed may not, even in the most extreme cases, pursue and kill his adversary after he knows or has reasonable grounds for believing that the danger has ceased to be immediate and impending, as where the adversary, in good faith, retreats or endeavors to withdraw from the combat. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962); State v. Keels, 753 S.W.2d 140 (Tenn. Crim. App. 1988); State v. Leaphart, 673 S.W.2d 870 [*13] (Tenn. Crim. App. 1983). See generally 40 C.J.S. Homicide § 109 (1944).

Again, whether the killing was justified in defense of self is a question of fact for the jury. State v. Williams, 784 S.W.2d 660 (Tenn. Crim. App. 1989).

From our painstaking examination of this record, there is sufficient evidence contained in it from which a rational trier of fact could find the defendant guilty of second-degree murder beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307 (1979).

III

The first four of Smith’s remaining issues: (1) change of venue, (2) individual voir dire, (3) refusal of two challenges for cause, and (4) jury separation, relate to matters which are largely within the trial judge’s broad discretion. The exercise of discretion in this regard will be overturned by the appellate court only if the defendant can clearly demonstrate its abuse. We will address these issues seriatim.

As to change of venue, the record contains several affidavits the defendant filed in support of his motion for a different venue. We have examined these affidavits; they show the affiants, and indeed others, had been exposed to information in one form or another concerning this case. Some of the potential jurors had read or heard about the case prior to trial, and those with firm beliefs were excused for that reason. Others were, of course, excused for reasons unrelated to the trial. Even so, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair, and mere exposure to information concerning the case to be tried does not establish constitutional error. State v. Melson, 638 S.W.2d 342 (Tenn. 1982); Lackey v. State, 578 S.W.2d 101 (Tenn. Crim. App. 1978). An accused is not entitled to a reversal of his conviction on the ground that the trial judge refused to change venue unless he can demonstrate to the appellate court that those jurors who actually served in his case were biased, prejudiced, or both. State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985), State v. Burton, 751 S.W.2d 440 (Tenn. Crim. App. 1988).

Other than the previously-mentioned affidavits, no evidence was introduced on the issue of whether Smith could get a fair trial in Macon County. The trial judge resolved this question of fact, and nothing in the record persuades [*15] us that his resolution was a clear abuse of discretion. Zagorski, 701 S.W.2d at 815; Melson, 638 S.W.2d at 360; Burton, 751 S.W.2d at 451.

The second of these four jury issues concerns the trial judge’s refusal to permit prospective jurors to be questioned individually, that is, out of the presence of all other prospective jurors.

Although Tennessee Rule of Criminal Procedure 24(a) provides for individual voir dire, it nevertheless remains a discretionary matter for the trial judge. This court has consistently held that the defendant in such circumstances must demonstrate that he has been prejudiced by the trial judge’s ruling. In the instant case, the defendant has shown only that his preference was individual voir dire; accordingly, the trial judge’s ruling stands. State v. Poe, 755 S.W.2d 41 (Tenn. 1988); Burton, 751 S.W.2d at 452; State v. Plummer, 658 S.W.2d 141 (Tenn. Crim. App. 1983).

Next, the defendant challenges the trial judge’s refusal to disqualify two prospective jurors for cause. The first, Jimmy Draper, acknowledged on voir dire that he had “heard about the case and talked about it some. Ultimately he stated unequivocally that he could be fair to both sides. Nevertheless, he was challenged peremptorily and did not serve.

The second prospective juror, Jacky Yokely, indicated that he knew the defendant when he saw him. After further examination, he asserted an ability to base his verdict on the proof heard from the witness stand. He, too, was peremptorily excused from the panel.

No abuse of discretion has been shown as to the trial judge’s refusal to excuse prospective jurors Draper or Yokely for cause. State v. Kilburn, 782 S.W.2d 199 (Tenn. Crim. App. 1989); Burns v. State, 591 S.W.2d 780 (Tenn. Crim. App. 1979).

As his last jury selection issue, the defendant urges that the trial judge erred in permitting tentatively-selected jurors to separate before the oath was administered to them. Since the defendant objected to this procedure, he argues that § 40-18-1166 of Tennessee Code Annotated prohibits the separation as allowed by the trial judge.

Tennessee Code Annotated § 40-18-116 applies only to sworn jurors. The trial judge retains discretion in the determination of when unsworn jurors may separate. State v. Poe, 755 S.W.2d 41 (Tenn. 1988); State v. McKay, 680 S.W.2d 447 (Tenn. 1984).

Moreover, before separating, the trial judge strongly admonished the jurors-to-be regarding their duties. Besides that, the trial judge satisfied himself that these admonitions had been obeyed before he administered to them the oath required of jurors.

The record contains no showing of impropriety or misconduct on the part of any person selected to serve as a juror in the case under review.

Thus, we conclude that the trial judge did not abuse his discretion in allowing the tentatively-selected jury to separate.

IV

For his next issue, the defendant says that the trial court erred in admitting a statement of the defendant into evidence. The defendant states in his brief that the statement was made to Deputy Sheriff Tuck. The defendant has not, however, appropriately directed us to that place in the record where this statement appears. See Tenn. A. App. P. 27(a).

Nevertheless, we have examined Tuck’s testimony relating approximately ten days before trial the defendant spoke to him. Smith told Tuck he was glad Green called him before coming to his house that morning because he was ready for him. He stated further: “Any man that comes to my house causing trouble, I’ll bust their guts out.”

In our view, the statement was relevant. It was not elicited in violation of the Miranda rule as the defendant urges, and it was clearly admissible. But most important of all, the fact that the jury acquitted Smith of premeditated murder clearly prevents him from arguing that the statement prejudiced his defense.

V

The defendant objected to the introduction of several photographs of the victim taken at the scene. The pictures are, indeed, on the gruesome side. Their admissibility, however, rests in the sound discretion of the trial judge. State v. Johnson, 762 S.W.2d 110 (Tenn. 1988); State v. Banks, 564 S.W.2d 947 (Tenn. 1978). The trial judge sifted though the sixty or so photographs tendered and rejected approximately fifty-two as being more prejudicial than probative. Conversely, the trial judge found that the probative value of eight photographs outweighed their prejudicial effect. He admitted these eight photographs into evidence. Their grisliness notwithstanding, these photographs do shed light on the fierceness of the attack; they were, in our opinion, of inestimable assistance to the jury as they considered the law of self-defense and defense of home in conjunction with the circumstances of the present case. Finding no abuse of discretion in the admission of these photographs, we overrule this issue.

VI

In another issue, the defendant contends that the jury instructions were erroneous insofar as they included two instructions specifically requested by the state.

The entire jury instructions are in the record, and we have easily identified the questioned portions of the instructions given the jury:

Deliberation, premeditation, and malice may be inferred from the brutality of the attack upon the victim, or from the circumstances of repeated shots or blows.

If proven to the jury’s satisfaction, the defendant’s calmness after the killing is a factor from which the jury may infer premeditation.

Except for the element of malice, which is adequately defined in other portions of the jury instructions, the challenged instructions pertain to first-degree murder. Since Smith was convicted of second-degree murder, any error in the instructions relating to first-degree murder is harmless and will not require reversal. Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1911). See also Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

Moreover, from a reading of the entire charge, we are satisfied with its fairness. See State v. Elendt, 654 S.W.2d 411 (Tenn. Crim. App. 1983).

VII

For his final issue, Smith contends that his sentence is excessive. To reiterate, Smith was sentenced under the old law 7 as a Range I standard offender to forty years in the Department of Correction.

We have examined Smith’s sentence de novo, without a presumption of correctness, and we have considered all of the statutory mitigating factors Smith suggests in his appellate brief. We have also considered the statutory enhancement factors suggested by the evidence, the principles of sentencing, and applicable law.
We conclude that the sentence is, considering all of the circumstances, fair and appropriate, and we adopt it as our own.

It results, therefore, that the judgment of conviction is affirmed, and the sentence of forty years is reimposed.

Footnotes:

1 Tenn. Code Ann. § 39-2-211 (1982).

2 Tenn. Code Ann. § 39-6-1710 (1982).

3 Green had given Smith the head of a deer he had killed; Smith mounted it and displayed it in his home.

4 Tenn. Code Ann. § 39-2-235 (Supp. 1988).

5 Grace, 493 S.W.2d at 476.

6 Tenn. Code Ann. § 40-18-116 (1982). In all criminal prosecutions except those in which a death sentence may be rendered, the judge of the criminal court may, in his discretion, with the consent of the defendant, and with the consent of the district attorney general, permit the jurors to separate at times when they are not engaged upon the actual trial or deliberation of the case.

7 Tenn. Code Ann. § 39-2-212 (1982).