Collins v. State

• Decision Date: 28 September 1973
• Citation: 506 S.W.2d 179
• Parties: James Edward COLLINS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 179

506 S.W.2d 179

James Edward COLLINS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Sept. 28, 1973 Certiorari Denied by Supreme Court Jan. 21, 1974.

W. Collins Bonds and Currie Drake, Milan, for plaintiff in error.

David M. Pack, Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for defendant in error.

OPINION

OLIVER, Judge.

Represented by two appointed attorneys in his trial and here, defendant James Edward Collins has duly perfected an appeal in the nature of a writ of error to this Court contesting his Gibson County Circuit Court second degree murder conviction, for which he was sentenced to not less than 10 nor more than 20 years the penitentiary.

The first three Assignments of Error challenge the sufficiency of the evidence to warrant and support the verdict of the jury.

Around 6:30 a.m. December 7, 1971 the defendant drove into Fay Farris' service station in Dyer, Tennessee, and started toward the office with a can of beer in his hand. When Farris told him that he could not bring the beer inside, the defendant said he wanted to drink it in the restroom. When Farris told him he could not do that either, the defendant went between the tire room and the service station. While Farris was waiting on a customer, the defendant came back and began using vulgar language. When Farris told him that he would have to stop talking in that manner or leave, the defendant departed without argument.

Shortly after 8:00 o'clock that morning, a man she could not recognize bought two rolls of adhesive tape from Mrs. Robert Carrigan in a five and ten cent store. She identified the tape introduced in evidence as that which she sold on that occasion. She testified that she noticed nothing unusual about the man's speech or walk.

About 8:30 the defendant returned to the service station and had his car tank filled with gasoline. Farris testified the defendant drove, walked and talked normally. The defendant then went inside the station to pay for the gasoline and began conversing with Eldon Grimes. He asked Grimes what time City Hall opened and what time the police would arrive, saying that he wanted to report some illegal duck shooting. During that conversation he warmed his feet by a small heater, raising one foot and then the other. Grimes testified that the defendant appeared steady on his feet.

Leaving the service station, the defendant went to City Hall. After parking his car with the motor running, he went inside, walked over to where the deceased, George Ivey, a city employee, was working, grabbed him by the collar and said, 'I told you I was going to do it.' The deceased replied, 'You did?' Talking loudly and cursing, the defendant started backing the deceased toward the door. The commotion attracted the attention of Mayor David Robinson, grocer Rachel Barron, policeman W. A. Taylor and Howard Baker, who were in or near the city recorder's office. Mayor Robinson and Policeman Taylor approached the defendant and Ivey, while Baker phoned for police assistance. Robinson asked the defendant what he wanted, what the trouble was and why he was doing that to Ivey. The defendant replied, 'You know me don't you? I'm old crazy James Collins.' Robinson answered, 'Well I know you, but I don't know about your being crazy.' The defendant said, 'Yes, you do.' The defendant also said 'I'm James Edward Collins. I'm a mean son of a bitch. I mean business . . . I mean business. This gun is loaded, and my finger is on the trigger . . . This is the mafia.' He repeatedly remarked about how powerful his rifle was and what it was capable of doing.

The defendant instructed Robinson to get adhesive tape out of a paper sack he had and tape the gun barrel to Ivey's neck. When Robinson hesitated, the defendant said, 'I mean business. Get that tape out and tape it.' Robinson taped Ivey's shirt, tearing the tape at one point so that he could later get the gun loose. After one roll of tape was used, the defendant said, 'Get the rest of that tape out of there and put it on.' Robinson replied, 'Let me lay my raincoat down,' since he had dropped it before while trying to apply the tape. As Robinson laid his raincoat down, dropping the tape, the defendant shot Ivey in the back of the head killing him instantly. Policeman Taylor grappled with the defendant and in the ensuing scuffle was assisted by an interior decorator there to start painting the city hall, and the city recorder, the latter striking the defendant on the head with something like a police night stick--which rendered him unconscious.

The defendant was placed in jail. In his car were found numerous rounds of ammunition for his rifle and a hunting dog was on the back seat. The next day, in the county sheriff's office, Criminal Investigator Pybas advised the defendant concerning his constitutional rights and undertook to interrogate him. Talking logically, coherently, and politely, the defendant replied, 'I don't want you to think I'm trying to be smart, but I don't care to talk to you. I haven't talked to my attorney.'

Kinton Ray testified that he saw the defendant put the gun to the deceased's head and heard their statements, and that the defendant did not act like a rational man. Rachel Barron testified that 'To me, he seemed like he always did except, you know, he had that gun up there'; and that in the past the defendant had come to his grocery store drinking and he would have to quieten him. Mayor Robinson testified that a few years before this incident the defendant's mother called him and asked him what procedures were required to have the defendant committed to a mental institution, and that he referred her to Judge Hunt (the county judge).

Dr. James Larry Williams, the county medical examiner, testified that after seeing the defendant unconscious at the jail he saw him again in the hospital emergency room where he was drunk, wild and had to be restrained; that in his opinion the defendant was sane but had a mild anxiety neurosis, a condition which, according to Dr. Williams, is not uncommon.

As a witness in his own behalf, the defendant testified that he had been drinking since he was 12 years old; that about four years before this homicide his mother said something to Dr. Robinson (the mayor) about getting him admitted to Western State Hospital, and that he talked to County Judge Hunt about it himself, and told him he needed to go somewhere because there was 'a feeling inside' causing him to want to scream and climb the walls; that alcohol would kill this feeling; that the only thing he remembered before December 7th was that he was drinking and talking with a woman at the Van Hook Drive-In in Milan, Tennessee; that someone told him he had to leave and he started toward the door carrying two sacks, and the next thing he remembered was awakening in the jail; that he did not remember talking with the criminal investigator there, but remembers being brought out to talk to somebody who had a tape recorder; that he had known the deceased since childhood; that the deceased had never hurt him and he did not want to harm the deceased, and didn't kill him and would not have killed him or anyone else 'for anything in the world,' and that he did not know when he took the rifle out of the closet where he kept it; that he does not claim he does not know right from wrong or that he is insance; that he drank a six-pack (tall cans) of beer before going to Van Hook's Drive-In; and that he knows nothing when he has a blackout. After denying that he killed the deceased, he also said he didn't know whether he did it or not, and that 'it's hard to believe' what the witnesses said about it.

It was stipulated and shown by a toxicology laboratory report introduced by the defendant that when he was taken to the emergency room of the hospital on December 7, 1971 his blood-alcohol content was .19 per cent.

Dr. J. N. Fidelholtz, an Assistant Forensic Psychiatry Superintendent at Central State Psychiatric Hospital, testifying as a defense witness, said that the defendant was in that hospital approximately a month beginning January 18, 1972; that after physical exaninations, psychiatric examinations, psychological tests, examinations and interviews by various members of the staff, and an interview by the entire staff, it was concluded that the defendant had a mild type of brain damage due to alcoholism, mild anxiety neurosis and alcoholic blackouts; that in his opinion the defendant had an alcoholic blackout and could not recall the shooting, but this did not necessarily mean that he did not know what he was doing at that time; that the defendant's behavior before the shooting, stated to the witness hypothetically, would indicate that he did not act impulsively and that he was not so intoxicated as to be unable to distinguish right from wrong, although it is possible for a person to be intoxicated and still appear rational; and that 'In the opinion of our staff, this man is not now nor has he been at any time in the past incompetent.'

Another defense witness, Dr. T. K. Campbell, testified that he examined the defendant before the shooting; that the defendant had told him that he had been convicted twice of driving while drunk, but could not recall the incidents; that the defendant suffered permanent brain damage; that he later examined the defendant before the trial; that the defendant told him that he was in a bar drinking, picked up a sack in each arm and started towards the door, and that he could remember nothing else; that it was possible the defendant did not recall the shooting; that in his opinion, based on speculation, the defendant did not know right from wrong at the time; and that it would take a small amount of alcohol to render a person suffering from brain damage incapable of discerning right and wrong, as compared with a normal person.

Dr. A. L....