Evans v. State

• Citation: 557 S.W.2d 927
• Parties: Emmit EVANS and Marion Smith, Appellants, v. STATE of Tennessee, Appellee.
• Decision Date: 26 August 1977
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 927

557 S.W.2d 927

Emmit EVANS and Marion Smith, Appellants, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Aug. 26, 1977 Certiorari Denied by Supreme Court Nov. 7, 1977.

Jack W. Bowers, Rufus W. Beamer, Jr., Knoxville, for Evans.

Charles C. Burks, Jr., Knoxville, J. Anthony Brown, Knoxville, for Smith.

R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, John W. Gill, Jr., Memphis, and William L. Waters, Knoxville, Asst. Dist. Attys. Gen., for appellee.

O'BRIEN, Judge.

OPINION

This is an appeal from a judgment in the Criminal Court of Knox County finding defendants guilty of murder in the first degree during perpetration of an armed robbery, and fixing their punishment at death by electrocution.

Evans has filed thirty-six assignments of error, Smith thirty-two. Most of the assignments for the separate defendants parallel in form and content. We first consider those filed individually by defendant, Evans, who complains that the trial court erred in denying a motion for severance.

A pre-trial motion for severance was overruled because no valid grounds were shown. The motion was renewed prior to trial, again found to be without merit and overruled.

We find no indication in this record of any prejudice to the defendant by failure to grant severance. Where two or more defendants are charged jointly, with a single crime, it is proper to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the defendant's rights. See Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Cole v. State, 4 Tenn.Cr.App. 645, 475 S.W.2d 196. The assignment is overruled.

Evans says the trial court erred:

(a) In holding that he knowingly and voluntarily waived his Fifth Amendment rights in making a statement to police while he was a suspect for armed robbery.

(b) Holding that he knowingly and voluntarily waived his Sixth Amendment rights prior to a pre-indictment line-up.

There was never any confession or admission of either defendant presented to the jury. The line-up complained of by defendant occurred prior to his indictment. He was not entitled to counsel at the line-up proceedings. See Maxwell v. State, 501 S.W.2d 577, Tenn.Cr.App.1973; State v. Jefferson, 529 S.W.2d 674, Tenn.1975; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. The assignment is overruled.

Evans charges the trial court erred:

(a) By allowing, over objection, testimony of a witness to statements made by the co-defendant, Smith, tending to inculpate Evans in violation of his Sixth and Fourth Amendment rights.

(b) By not giving any precautionary or limiting instructions to the jury regarding Sixth Amendment rights or the hearsay rule.

(c) By holding that the testimony of the witness referring to the statements of Smith were admissible as substantive evidence against Evans.

Defendant's principal objection seems to be that there was a Bruton violation (Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) in the admission of certain statements made by co-defendant Smith, through the testimony of the witness, Valerio. All three of the parties, Evans, Smith, and Valerio, were present during some of the conversations related by Valerio. The statements of Smith admitted in evidence were not in the way of a confession inculpating Evans in the crime. To the contrary, Valerio's testimony was the report of a conversation between the other two and his observation of Evans' reactions to Smith's comments, insofar as Evans was involved. We find no Bruton violation here. Defense counsel argues very ably and with great force that defendant has not only been denied his Sixth Amendment right of confrontation but that the testimony was admitted in clear violation of the hearsay evidence rule. This case falls within several of the recognized exceptions to the hearsay rule. The facts of the case bring the testimony of Valerio within the scope of the exception authorizing admission of evidence of a conspiracy. The testimony was corroborative of other evidence that placed Evans at the scene of a violent, wanton, and grossly executed homicide committed in the course of a robbery. It showed his state of mind and intent immediately preceding, and, subsequent to, the actual occurrence of the crime. Everyone entering into a conspiracy is a party to every act which has before been done by the others, and to every act by the others afterwards, in furtherance of the common design, and all acts and declarations of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy had its origin until its design has been consummated, or until it is abandoned. See Solomon v. State, 168 Tenn. 180, 76 S.W.2d 331, and authorities cited there. Although the issue was not raised it is not improbable that the testimony was admissible under the res gestae exception to the rule. Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53. There is no doubt the testimony was admissible under the tacit admission exception to the rule. See O'Brien v. State, 221 Tenn. 346, 426 S.W.2d 507; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1. The assignment is overruled.

Holding as we do that the testimony was admissible under exceptions other than the tacit admission exception to the hearsay rule, taking the testimony of Valerio in conjunction with other convincing evidence in the record, it affirmatively appearing that the defendant heard and fully understood the remarks made by Smith which were made under circumstances affording him the opportunity to register denial, there having been no request for any precautionary jury instructions, we reject the suggestion that such an instruction was called for. The jury was entitled to consider the testimony, not as evidence of the circumstances detailed in the statements, but for such inference as the admitted evidence might reasonably warrant.

Defendants jointly say that the evidence presented at trial is insufficient to sustain the verdict and preponderates against the guilt and in favor of their innocence. It is their contention that the trial judge should have directed a verdict of acquittal as to the second count of the indictment because the State's proof failed to establish that the criminal agency of the defendants caused the death of the decedent.

The thrust of their argument is that the State failed to present sufficient evidence to provide a jury question on the cause of death of Mr. Boyd Wright. They say the testimony of Dr. Fredrick Fernando Brown, Jr., whose treatment of the victim began within fifteen or twenty minutes after he had been admitted to the emergency room at the hospital, and of Dr. Stephen Glen Wilson, Jr., who performed an autopsy on the victim's body, was insufficient to show the actual cause of death. We disagree. Dr. Brown testified that in his opinion the injuries on Wright's body were the ultimate cause of his death some twenty days after they were inflicted. Dr. Wilson testified that the trauma associated with Wright's injuries resulted in a decrease in oxygen supply to the brain, triggering what he classified as an acceleration in numbers of "small strokes". That some of these strokes involved a vital area of the victim's brain, which regulated body temperature, resulting in a rapid increase in temperature bringing about his death. The testimony of both doctors established the cause of death to be the injuries sustained by the victim. The distinguishing feature between this case and Fine v. State, 193 Tenn. 422, 246 S.W.2d 70, cited on behalf of defendant, is the uncontroverted evidence offered by the State to show that Boyd Wright had been wantonly, maliciously beaten and strangled prior to his hospitalization, and, some twenty-one days later, causing his demise. It is true that a homicide conviction should not be sustained where proof of death rests in the disjunctive, however, our cases hold that one who unlawfully inflicts a dangerous wound upon another is held for the consequences flowing from such injury, whether the sequence be direct or through the operation of intermediate agencies dependent upon and arising out of the original cause. Odeneal v. State, 128 Tenn. 60, 157 S.W. 419; McCord v. State, 198 Tenn. 226, 278 S.W.2d 689.

A number of the assignments relating to the constitutionality of the death penalty, and collateral issues, have been preempted and rendered moot by the decision in Collins v. State, 550 S.W.2d 643 (Tenn.1977), in which our Supreme Court held that the statutes imposing the mandatory death penalty upon conviction of first degree murder are unconstitutional. In the opinion on the Petition to Rehear in Collins, (5/2/77), our Supreme Court concurred in the commutation of the death sentences of Collins and a fellow defendant, Frank Carl Morgan, to life imprisonment by executive action. The sentences of these defendants have also been commuted to life imprisonment by the Governor.

Defendants say they were denied the Sixth Amendment right to trial by jury by virtue of the statutes giving females the option to decline service when summoned to jury duty.

This case had come to trial and counsel was in the process of jury selection when the United States Supreme Court decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, was published, holding that women, as a class, may not be excluded from jury service or given automatic exemptions based solely on sex if the consequence is that criminal juries are almost always male. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790, subsequently held that the Taylor decision was to have prospective application only. Notwithstanding Taylor, supra, defendants have failed to carry the burden imposed upon them to show that women were systematically excluded from either the Grand Jury or the Petit Jury in this case. The...