Armes v. State

• Decision Date: 26 May 1976
• Citation: 540 S.W.2d 279
• Parties: Aaron ARMES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 279

540 S.W.2d 279

Aaron ARMES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

May 26, 1976 Certiorari Denied by Supreme Court July 26, 1976.

George H. Buxton, III, Oak Ridge, for plaintiff-in-error.

R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, Robert T. Beaty, Asst. Dist. Atty. Gen., Oneida, for defendant-in-error.

DUNCAN, Judge.

OPINION

The defendant, Aaron Armes, brings this appeal contesting his conviction for murder in the second degree, for which offense he received a penitentiary sentence of 30 years.

In his first complaint, the defendant argues that the court erred in allowing certain statements made by him to a deputy sheriff to be admitted into evidence.

Officer John Seiber testified that while he was transporting the defendant from the scene of the shooting to the jail, the defendant volunteered a statement to him, the officer's testimony in this regard being as follows:

'Yes, sir, he made the statement that he killed her over something that he had nothing to do with, and then in a moment or two, he made another, or asked the question, rather, asked if, in my opinion, that he could get off on the grounds of temporary insanity.'

The defendant objected to the introduction of this testimony on the grounds that the statement constituted a form of 'pled bargaining.' The trial court denied his motion to suppress this testimony and held it to be admissible. We are of the opinion that the trial court was correct in its ruling.

Without discussing the technical aspects of 'plea bargaining' and the proper persons who can engage in such activity, we categorically state that a mere inquiry from a defendant to a deputy sheriff about the feasibility of a possible defense to a homicide does not rise to the level of 'plea bargaining.'

In his brief, the defendant cites Moulder v. State, 289 N.E.2d 522, 525--27 (Ind.App.1972), where the Court said:

'The majority of our courts now follow the rule that communications relating to plea bargaining in criminal prosecutions are privileged and are not admissible in evidence.'

However, the Moulder opinion further states:

'The character of the communication is the test to be applied. The communication must have as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant.'

In the present case, the defendant's statement to the deputy sheriff contained no offer to plead guilty, nor did he seek any favorable consideration from the deputy sheriff. Clearly, the defendant's statements did not have as their ultimate purpose the reduction of punishment or other favorable treatment from the State. We find no merit to the complaint made an overrule the assignment.

Next, the defendant complains of the following portion of the trial judge's charge to the jury:

'The use of a deadly weapon by the party killing, when shown, raises a presumption of malice sufficient to sustain a charge of second degree murder unless it is rebutted by other facts and circumstances.'

The defendant insists that this language in the jury charge denied him constitutional due process, and he relies upon the authority of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In our opinion, the quoted instruction, when considered in the context of other pertinent instructions given by the court, or even considered by itself, does not run afoul of the United States Supreme Court's holdings in these cases.

After charging the jury on the offense of murder in the first degree, the trial judge then instructed the jury regarding the offenses of murder in the second degree, voluntary manslaughter, and involuntary manslaughter, meticulously setting forth the elements of each of these offenses. The charge clearly instructed the jury that before they could convict the defendant of any one of these offenses, the State had the burden of proving beyond a reasonable doubt all of the elements of such offense.

In re Winship, supra, held that the 'Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' Criminal prosecutions in Tennessee have always been conducted in accordance with this rule. We find nothing in the court's charge in the present case that is contrary to this basic proposition.

In Mullaney v. Wilbur, supra, the United States Supreme Court considered the effect of presumptions in murder cases as they related to the ultimate burden of proof. Mullaney involved a state of Maine rule that required a defendant charged with murder to prove that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter.

In Mullaney, the trial court instructed the jury that Maine law recognized only two kinds of homicide, murder and manslaughter; that malice aforethought was an essential element of the crime of murder, without which the homicide would be manslaughter; that if the prosecution established that the homicide was intentional and unlawful, malice aforethought would be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation; and that malice aforethought and heat of passion on sudden provocation were inconsistent things and that by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter.

The United States Supreme Court held that this Maine rule did not comport with the requirement of the due process clause of the fourteenth amendment that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged, citing In re Winship, supra. The Court concluded by specifically saying:

'We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.'

A close reading of Mullaney and the footnotes to it indicate that legal presumptions in favor of the State are forbidden only in very limited situations. As we interpret Mullaney, it only addresses the issue of the erroneous use of presumptions where the effect is to shift the burden of proof from the State to the defendant. Mullaney sanctions the use of presumptions so long as they satisfy certain due process requirements and do not remove the State's burden to prove each element of the offense beyond a reasonable doubt. Mullaney further approves the legal principle that a defendant may be required to produce 'some evidence' contesting the otherwise presumed or inferred fact; that is, that he satisfy the production burden but not the ultimate burden of persuasion. Mullaney v. Wilbur, supra, 95 S.Ct. nn. 20, 28, 31, at 1888, 1891--92.

In Mullaney, the Court recognized that many states require a defendant to show some evidence indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving beyond a reasonable doubt the absence of any passion. The Court found no fault with this proposition, stating, 'Nothing in this opinion is intended to affect that requirement.' Mullaney, supra, 95 S.Ct. n. 28, at 1891.

Even though Mullaney would sanction it, the instructions in the present case did not require the defendant to negate malice, nor did they place on him the burden of going forward with 'some evidence.'

The 'presumption' used in the present case is similar to the constitutionally permissible 'presumptions' which have been approved by the United States Supreme Court. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

In United States v. Gainey, supra, the Court held constitutionally permissible an inference of guilty knowledge from the defendant's presence at an illegal still, stating that there was a rational connection between the facts proved and the ultimate fact presumed. In Barnes v. United States, supra, the trial judge instructed the jury that the unexplained possession of recently stolen property would justify an inference that the defendant possessed it with the knowledge that it was stolen. In holding this inference was constitutionally permissible, the Court said, 93 S.Ct. at 2362--63:

'The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen. Cf. Turner v. United States, 396 U.S. (398), at 417, 90 S.Ct. (642), at 652 (24 L.Ed.2d 610); Leary v. United States, 395 U.S. (6), at 46, 89 S.Ct. (1532), at 1553 (23 L.Ed.2d 57). Such evidence was clearly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process.'

As explained by the United States Supreme Court in Mullaney, such inferences or presumptions, as were involved in Gainey and Barnes, do nothing more than shift the production of proof burden to the defendant. This is constitutionally permissible where the presumed or inferred fact satisfies due process requirements. Mullaney, supra, 95 S.Ct. n. 31, at 1891--92. Also, see generally, McCormick, on Evidence, § 346 (2d ed., 1972).

In the Barnes case, 93...