State v. Boles

• Citation: 598 S.W.2d 821
• Parties: STATE of Tennessee, Appellee, v. Lester BOLES, Appellant-Defendant.
• Decision Date: 21 January 1980
• Court: Tennessee Court of Criminal Appeals

Page 821

598 S.W.2d 821

STATE of Tennessee, Appellee, v. Lester BOLES, Appellant-Defendant.

Court of Criminal Appeals of Tennessee, at Knoxville.

Jan. 21, 1980 Permission to Appeal Denied by Supreme Court April 21, 1980.

James Reneau, Celina, for appellant-defendant.

William M. Leech, Jr., Atty. Gen. of Tenn., Gordon W. Smith, Asst. Atty. Gen. of Tenn., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, Jeffrey Hall, Asst. Dist. Atty. Gen., Jacksboro, J. Frank Qualls, Harriman, for appellee.

OPINION

DUNCAN, Judge.

The defendant, Lester Boles, was convicted in the Morgan County Criminal Court of murder in the second degree and received a penitentiary sentence of 10 years.

The issues presented for review are (1) whether the evidence is sufficient to support the verdict, and (2) whether a reversal is required because several jurors, during the deliberation of the jury, discussed certain facts not in evidence.

We find the evidence to be sufficient to support the jury's verdict finding the defendant guilty of second degree murder. However, we find reversible error regarding the defendant's jury complaint.

Around 7:00 p. m. on November 9, 1976, the defendant, a deputy sheriff, was at the Morgan County jail when he heard tires "squalling" outside. Quinton Henry, a game warden, who was at the jail with the defendant, offered the use of his Scout vehicle to pursue the offending automobile. As the two men went outside, Boles observed a red, 1967 Chevelle in front of the jail. The driver was racing the engine and moving the vehicle forward and backward. The driver of the Chevelle then drove away and was pursued by Boles and Henry. They lost sight of the Chevelle during the pursuit, but later found it at a Spur service station. They attempted to block the Chevelle, but the driver drove away. Boles fired two shots in the direction of the Chevelle, and the Chevelle ran off the road into a field. The victim, Paul Richard Morgan, was found behind the steering wheel of the car. He had a gunshot wound in his head from which wound he later died.

The defendant testified that he approached the victim's automobile at the service station, opened the car door, and smelled a strong odor of alcohol. When he advised the victim that he was under arrest, the victim replied, "I'm not going any place." The victim then "gunned the car in reverse," knocking the defendant away from the open door. As the victim sped away, the defendant fired two shots in the direction of the car. The defendant insisted that he was shooting at the vehicle's tires and had no intention of hitting the victim. However, the State had offered evidence that the victim's car pulled out from the service station before the defendant ever got to the car, and that the defendant was not hit by the victim's car nor was any assault otherwise made upon the defendant. Other evidence showed that the defendant held the gun with both hands at arm's length and deliberately aimed his pistol in the direction of the victim's vehicle.

The defendant contends that he was acting properly in initially attempting to arrest the victim for driving while intoxicated, and that after the victim feloniously assaulted him with the automobile, he was entitled to use all necessary means to effect the arrest of the victim for this alleged felony. Thus, he argues that this homicide was justifiable and excusable.

The State contends that the evidence presented a question of fact as to whether the arrest attempted was for a felony or a misdemeanor, and that because the evidence was in dispute, it was a matter for the jury to determine.

The law sharply distinguishes between the amount of force that an officer may use in effecting an arrest for a misdemeanor as contrasted to a felony.

An officer may not kill a fleeing misdemeanant, even though he cannot be taken otherwise. Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938); Human v. Goodman, 159 Tenn. 241, 18 S.W.2d 381 (1929); Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1922); State v. Dunn, 39 Tenn.App. 190, 282 S.W.2d 203 (1943).

In Human v. Goodman, supra, the Supreme Court, in pointing out the limitations of an officer in making an arrest for a misdemeanor, said:

Except in self-defense, an officer cannot resort to the extremity of killing, or shedding blood, in arresting or in preventing the escape of one charged with an offense less than felony, even though the offender cannot be taken otherwise. 159 Tenn. at 243-44, 18 S.W.2d at 381.

Even when making a felony arrest, the law does not clothe an officer with authority to arbitrarily judge the necessity of killing, and such a course must be the last resort. He does not have the absolute right to kill, either to take the prisoner or prevent his escape, unless reasonably necessary. Whether there is reasonable necessity for an officer to shoot a felon in flight, and the reasonableness of the grounds on which the officer acted, are questions for the jury. Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106 (1934); Human v. Goodman, supra; Love v. Bass, supra.

Thus, it is clear that the defendant had no right to shoot into the victim's automobile solely for the purpose of trying to arrest him for an alleged offense of driving while intoxicated. Further, the facts as to whether the victim had assaulted the defendant with his automobile were in dispute. Thus, it was the jury's function to decide whether the victim had committed a felony, or even if he had, whether the defendant's actions were necessary or reasonable under the circumstances. The jury, by its verdict, resolved all of these issues adverse to the defendant's contentions. Obviously, the jury found either that the victim was not fleeing from a felony arrest, or if he was, that the officer's actions in shooting him were not reasonable or necessary under the circumstances.

There is ample evidence here to show that the defendant willfully and maliciously killed the victim without justifiable cause. Thus, the elements of second degree murder have been established. The evidence is sufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt. Tenn.R.App.P. 13(e). The defendant's evidentiary complaint is overruled.

Next, we find merit to the defendant's contention that he was prejudiced because the jurors, in their deliberations, discussed and considered facts not in evidence.

The defendant, prior to the hearing on his motion for a new trial, filed with the court affidavits by jurors Henry and Erickson in which they stated that during the deliberations of the jury, one or more of the jurors mentioned and discussed that the defendant had previously shot an individual, and that he was "trigger happy" like a state trooper, named Bilbrey, who was previously stationed in Morgan County. As a result of these affidavits, all of the jurors were questioned at the hearing on the motion for a new trial.

Juror Erickson testified that during their deliberations, someone said that the defendant "had shot somebody somewhere or another before this." The juror also stated that some member of the jury made a comparison between the defendant and a person who had formerly been in Morgan County. He could not identify the juror who made these comments.

Juror Henry testified that in the course of their deliberations, "they just mentioned the fact that the man had two, . . . I believe they said two prior cases, and that he was similar to one of our Highway Patrolmen." She stated that when this statement was made, some of the others said "that's right." When asked exactly what had been said that formed the basis of her affidavit, she replied: ". . . it was to this effect that the man was trigger happy just like the Highway Patrolman." She also testified that a statement was made in the jury room that the defendant had shot another individual at an earlier time. Juror Henry could not identify the juror who made these statements.

Juror Helton testified that during their deliberations one of the jurors said something pertaining to a different shooting that the defendant "had shot another man."

Juror Hall testified that during their deliberations he heard it mentioned that "Mr....