Braziel v. State

• Decision Date: 13 May 1975
• Citation: 529 S.W.2d 501
• Parties: James Lester BRAZIEL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 501

529 S.W.2d 501

James Lester BRAZIEL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

May 13, 1975 Certiorari Denied by Supreme Court Sept. 2, 1975.

Howard G. Swafford, Jasper, for plaintiff-in-error.

R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, for defendant-in-error.

OPINION

OLIVER, Judge.

Represented in his trial by retained counsel who was thereafter appointed by the court to represent him in his appeal, James L. Braziel was convicted of second degree murder upon an indictment charging him with the first degree murder of Steve Brewer in May of 1973, and was sentenced to the minimum statutory punishment of imprisonment in the penitentiary for 10 years. (TCA § 39--2408). He is now before this Court upon his appeal in the nature of a writ of error.

It appears that at the time of the homicide this defendant was a juvenile, under 18 years of age, and that in a proceeding in the juvenile court of the county the juvenile judge ordered him held for prosecution as an adult in the Circuit Court. Assignments complaining of that proceeding and the juvenile judge's action are reserved for later consideration herein.

By one Assignment of Error the defendant challenges the sufficiency of the evidence to sustain a conviction of second degree murder, insisting that the proof, viewed in its most favorable light to the State, established no greater offense than voluntary manslaughter.

We summarize the material evidence. When a Marion County deputy sheriff, responding to a call, went to the home of John Grimes in that county, he found 17-year-old Steve Brewer dead, a gunshot wound in his chest, his head on the passenger's side of the front seat of a car and his body on the ground. Blood was all around the area where he was, and from the car all the way into the kitchen of the house. The defendant and his brother Sidney were standing on the porch and the defendant was crying. When the officer asked them which one shot the deceased the defendant replied that he did. The officer then advised the defendant concerning his constitutional rights in keeping with the Miranda mandate. The defendant, who said he was living at the Grimes home, stated he would get the gun and led the way inside and unlocked a chifforobe door and removed an unloaded .12 gauge double-barreled shotgun and gave it to the officer. One cartridge and one empty shell were found in the living room. In a statement to the deputy, which the trial judge held in a hearing apart from the jury was voluntarily and understandingly made, the defendant said that he and the deceased had been arguing and the deceased slapped him and carried him into the bedroom and threw him onto the bed; that he got up and went to the chifforobe and got the shotgun and stood in the doorway between the bedroom and the living room, with the gun cocked and his finger on the trigger, and told the deceased to stand up and take his hand out of his pocket and if he had a gun to drop it on the floor; that he shot the deceased when he stood up and he fell back onto the sofa; that the defendant's brother Sidney then helped the deceased to the car; and that he (the defendant) broke the shotgun down and locked it in the chifforobe and ran down the road. The officers found no pistol in the house or at the car. While they were still there, Grimes returned home from work, left the house for some 10 minutes and then came back in carrying a .38 pistol which he claimed he found in the house. The officers did not take that gun from him. The defendant's father was found drunk in a car in the yard.

At the jail about 2:30 the same morning, upon learning the defendant was a juvenile and after permission was obtained from the juvenile judge to hold and interrogate him, he was again advised concerning his constitutional rights by TBI Agent Walker (who died prior to the trial) and, in the presence of the deputy and the coroner, the defendant substantially repeated the same statement above indicated. But he added that when his younger brother Sidney and the deceased came to the house they had been drinking beer and he and they had some discussion about either a car or a pickup truck (the witness did not remember which), and they then all went together to 'Tojo's' and got another six-pack of beer and drove around and drank it, drinking only one or two beers himself, and then returned to the house and he and the deceased got into an argument when the latter wanted to watch television and the defendant turned it off and the deceased then slapped him and carried him and threw him on the bed and went back into the living room; that he (the defendant) got the shotgun out of the closet and cocked it and put his finger on the trigger and told the deceased, who had his hand in his pocket, 'if you've got a gun slide it on the floor,' and when they were 10 or 12 feet apart the shotgun went off unintentionally--he said he did not intend to pull the trigger.

The defendant, who said he was 18 years old and was 17 at the time of the homicide and could not read or write, testified that he had lived in the Grimes home for about 16 years and had known the deceased about a year; that he was working on a car in the yard when his father, his brother and the deceased drove up about 5:00 or 5:30 p.m.; that after some bargaining, the deceased sold a truck to the defendant's father; that after the truck sale transaction, his brother Sidney and the deceased went out and got a six-pack of beer, and when they returned his father and he joined them and they drove to Whiteside to pay one of the father's debts; that on the way back they stopped at Tojo's where he and his brother played pool and the deceased and their father drank beer until about 11:30 p.m. (this was May 3, 1973) and then they all returned to the Grimes home about midnight; that when they got to the house, while his brother Sidney was looking for a jack to fix a flat tire and their father was passed out in the car, he and the deceased went inside and the deceased picked him up and threw him on the bed, 'he didn't mean nothing by it he was just playing around . . . we played like that all the time,' and it didn't make him mad; that while on the bed he noticed his watch crystal was broken and went over to the chifforobe and opened the drawer to put his watch in there and noticed that Grimes' mother's .38 pistol which was kept in that drawer was gone; that at this time the deceased was sitting on the couch in the living room drinking a beer; that, because Grimes didn't like for anybody to play with the guns and might get mad and whip him and he wanted to put the gun up before Grimes came in, he asked the deceased if he had the gun; that when the deceased made no reply 'I asked him, I told him again, I said if you've got the gun put it up before Johnny (Grimes) comes in, and he still didn't say nothing, so I got the shotgun, an old shotgun . . .' and Sidney walked in about that time; 'And I walked in there and I said Steve if you've got the gun give it to me I want to take it down to Johnny's sister's and put it up till Johnny comes in. He didn't say nothing he just smiled at me, and I said give it to me before Johnny comes in if you don't I'll get a whipping, and he pulled it out and pointed it at me, and I said, are you going to shoot me? And he didn't say nothing, and I said, and I said, if, I said Steve lay the gun down and push it to me, and he laid the gun down and pushed it to me and when he did I bent over to pick up the '38, and the 12 guage (sic) shotgun went off'; that he had never fired that shotgun before; that he was scared and nervous and did not mean to hurt the deceased; that after the gun went off he broke it down and unloaded it and placed it and the pistol back where they belonged and ran down the road the short distance to Grimes' sister's house and called an ambulance and came back about 10 minutes later and the ambulance and the deputy sheriff were there; that he was crying and the deputy 'walked up to me and asked me what happened, and I told him, and he said, well, take me in the house and give me the gun, and I took him in there and give, I got the gun and he asked me what happened and I told him'; and that he was scared when he talked to the officer and the TBI man and didn't remember much about what he told them.

Upon cross-examination the defendant said that during the truck discussions between his father and the deceased, the deceased wanted a drink of water and he took him inside and gave him one and then made himself a sandwich and they went back outside together, and that he did not know whether the deceased got the .38 pistol but he never saw a gun or the imprint of one in the deceased's pocket during their rounds the rest of the night; that up until they all returned to the house about midnight there had been no arguments or words passed between him and the deceased; that when he stood with the shotgun in the doorway between the kitchen and the bedroom, his thumb was on the right hammer and his finger on both triggers and he did not know how the gun went off; that the hammer must have pulled half-way back and slipped off when he bent over, but he agreed that to fire the gun a hammer would have to be pulled all the way back and that trigger would have to be pulled; that the only reason he got the shotgun at that hour of the night was to take it to Grimes' sister's house, 'he told me if anybody ever started playing with them guns to take it down at his sister's and put all the guns up, give them to her' and was going to take the pistol along also.

The defendant's brother Sidney, 16 years old, corroborated the defendant's story about the shooting almost exactly, testifying that he entered the house and saw the defendant lying on the bed and the deceased sitting on the couch in the...