Davis v. State

• Decision Date: 31 July 1969
• Citation: 1 Tenn.Crim.App. 479,445 S.W.2d 933
• Parties: Harvey D. DAVIS and Clarence Fisher, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 933

445 S.W.2d 933

1 Tenn.Crim.App. 479

Harvey D. DAVIS and Clarence Fisher, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 31, 1969 Certiorari Denied by Supreme Court Sept. 15, 1969.

Hugh W. Stanton, Jr., Memphis, for plaintiffs in error.

George F. McCanless, Atty. Gen., Albert D. Noe, IV, Asst. Atty. Gen., Nashville, William D. Haynes, Phillip Kuhn, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

OPINION

OLIVER, Judge.

Jointly tried in the Criminal Court of Shelby County under an indictment charging Harry Lee, Herbert E. Moore, Harvey D. Davis and Clarence Fisher with the first degree murder of one Willie Pigram, Lee and Moore were acquitted and Davis and Fisher were convicted of second degree murder and sentenced to imprisonment for not more than fifteen years in the State Penitentiary. Their motion for a new trial being overruled, the defendants Davis and Fisher prayed and were granted and have perfected an appeal in the nature of a writ of error to this Court.

At the outset it should be noted that the defendants do not here challenge the sufficiency of the evidence to sustain the verdict of the jury, notwithstanding they specifically raised that contention in their motions for a new trial, except insofar as they insist by the thrid Assignment of Error that there is no competent evidence of the Causa mortis or that the death of the deceased was due to any act by either of them or by any co-defendant. This is the only Assignment of Error in which both Davis and Fisher can be said to have joined, because both of them asserted the same proposition in their respective and separate motions for a new trial. All the other Assignments of Error are Davis'. Fisher did not testify.

In the evening of November 4, 1966, answering a call to South Fourth Street in Memphis, policemen found the deceased, a 60--year--old Negro man, lying unconscious in a driveway near the edge of the street. He appeared to be in a very drunken condition. He was removed to the hospital where he died in the early morning hours of November 6th. The County Medical Examiner performed an autopsy. He testified that death resulted from a blow on the head with a blunt instrument; that the bruise to the top of the brain was about six inches long running from the right rear across the head to the left front and about two inches wide; that it could not have resulted from a blow to the deceased's jaw, nor by falling on concrete. There is no evidence that the deceased fell or was otherwise injured while in the hospital. He received adequate medical treatment and care there. There is no evidence to the contrary. He was in good health prior to the fatal injury, although disabled and receiving some kind of disability compensation.

In a homicide case it must be fully and satisfactorily proved that the death was neither occasioned by natural causes, by accident, nor by the deceased himself. Persons v. State, 90 Tenn. 291, 16 S.W. 726. It is well settled that the opinions of physicians as to the cause of death of any particular person are admissible in evidence, whether founded upon personal knowledge of the facts or upon the statement of the symptoms as detailed by others. If such opinions were not received, in many cases it would be impossible to know or ascertain the cause of death. Knights of Pythias v. Steele, 108 Tenn. 624, 69 S.W. 336; Interstate Life and Accident Company v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80.

Jacqueline Greer, seventeen, her fifteen-year-old brother Anthony, and Eldridge (Mickey) Cannon, also fifteen, witnessed the incident from almost directly across the street. Jacqueline testified that she saw three boys, whom she did not then recognize, around the deceased; that one boy had a fence stick or a plank and she saw it 'come down' in a short stroke but didn't see the blow land; that the deceased didn't fall but the boys helped him down on the ground; and that after the deceased was down one of the boys went into his pockets. Anthony testified he did not see the deceased struck but heard the blow, a 'loud smacking sound,' and saw him fall; that he saw what looked to him like a fence board or plank about 1 4 3 or 1 6 2 , but didn't see how it was used; that the one that patted the deceased's pockets had the stick; and that as deceased started to fall one of the boys caught him and laid him down on the ground. Both of these witnesses said there is a wood fence nearby. From this evidence the jury could justifiably find that one of these defendants struck the deceased a lethal blow on the head with a fence paling or board.

In his first Assignment of Error, defendant Davis contends that he was prejudiced by the trial court's refusal to grant his petition for a severance, and in requiring him to stand trial with the other three co-defendants. It is axiomatic that this is a matter that must be left to the sound discretion of the trial court, and he will not be put in error for failure to grant a severance unless it can be shown that the defendant was clearly prejudiced thereby. Monts v. State, 218 Tenn. 31, 400 S.W.2d 722; Ellis v. State, 218 Tenn. 297, 403 S.W.2d 293; Tomlin v. State, 207 Tenn. 281, 339 S.W.2d 10; Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385.

Davis' fifth Assignment of Error is also predicated principally upon the trial court's refusal to grant him a severance and a separate trial. We shall make further reference to other aspects of that Assignment later.

In the defendants' motion or petition for a severance they stated, as the basis therefor, (1) that three of the defendants had given statements involving other defendants 'to a more or less degree of incrimination,' (2) that Davis denied any participation in the homicide, (3) that evidence incompetent as to one defendant would be admissible as to other defendants, 'and thereby prejudicial to the defendant to whom it would not apply,' (4) that evidence incompetent as to one will react and prejudice the jury against other defendants, (5) that there 'well may be evidence denied a defendant under a joint trial that would be available under a separate trial,' and (6) that 'it is impossible for the jury to delineate, and distinguish the many facets of proof applicable to each of the several defendants, and apply the pertinent evidence to the particular defendant, when tried jointly.'

In other words, the real basis of the severance petition or motion was the knowledge that three of the defendants had made extra-judicial statements and all of them them feared that if those statements were admitted the jury would be unable to separate the chaff from the wheat and thus would be prejudicially influenced against them.

In a hearing apart from the jury upon the preliminary question of the admissibility of oral and written statements made during custodial police interrogation by Davis, Lee and Moore, the court properly found and correctly ruled that those statements were made voluntarily after those defendants were properly apprised of their constitutional rights, and intelligently waived them, in accordance with the precepts of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. They were all present when their statements were reduced to writing and signed.

The investigating officer who conducted the custodial interrogation of these three defendants identified their signed written statements and they were then admitted in evidence and read to the jury. In each of the three statements, the name of Fisher had been blanked out under instructions of the court because he was not present during the interrogation of the other three defendants, and when the witness read those statements the word 'blank' was used in lieu of Fisher's name wherever it appeared. However, during the course of presenting these statements the identity of 'blank' was made abundantly clear to the jury by the court's precautionary instructions regarding permissible consideration and use of the statements.

In Lee's statement he said that he saw Davis hit the deceased one time with his hand and the deceased fell; that Fisher searched the deceased, and that Davis also turned him over and went through his pockets; that he did not see a billfold, money or anything else removed from the deceased's pockets; and that later that night he borrowed a dollar from Davis. Lee testified as a witness in his own defense, and generally reaffirmed his written pre-trial statement. He said that he heard nothing said by anyone about money being taken from the deceased; that he did not see the deceased give anyone a drink from his bottle and does not know what became of it; that he and Moore were approaching the scene as these events occurred; and that he did not hear the deceased curse Davis or say anything to him.

In Moore's pre-trial written statement he said that as he and Lee approached the scene the deceased offered him a drink from his vodka or gin bottle and he thinks he took one; that the deceased was staggering drunk; that he saw Davis hit the deceased one time with his fist and 'he fell hard'; that Fisher then went through the deceased's pockets; that Davis asked Fisher how much money the deceased had, and Fisher replied that the man had $10, and that he saw Fisher with a billfold. Moore's testimony substantially paralleled his written pre-trial statement.

In Davis' pre-trial statement he said that he did not strike the deceased; that he and Fisher were together, came upon the deceased who asked him 'where Lauderdale is' and he gave him that information; that the deceased had a bottle of gin and asked him if he wanted a drink; that he took the deceased's bottle and took a drink, and was intending to run away with the gin; that Fisher asked the deceased if he had change for $5 and received a negative reply; that Lee and Moore approached about this time; that Fisher struck the deceased a...