Gordon v. State

• Decision Date: 22 November 1971
• Citation: 478 S.W.2d 911
• Parties: Sally Mae GORDON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 911

478 S.W.2d 911

Sally Mae GORDON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Nov. 22, 1971.

Certiorari Denied by Supreme Court March 6, 1972.

Robert E. Hoehn, Asst. Public Defender, Nashville, for plaintiff in error.

David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Arnold Peebles, Jr., Asst. Dist. Atty. Gen., Nashville, for defendant in error.

OPINION

OLIVER, Judge.

Represented below and here by the Davidson County Assistant Public Defender, Sally Mae Gordon was convicted of second degree murder in the Criminal Court of Davidson County and was sentenced to imprisonment in the penitentiary for ten years, under an indictment charging her with the first degree murder of William Springer. She has duly perfected an appeal in the nature of a writ of error to this Court.

In one Assignment of Error the defendant advances the usual contention that the evidence is insufficient to warrant and sustain the verdict of the jury, her specific insistence being that no evidence was introduced to establish either express or implied malice on her part. In examining this contention, we are bound by the well-established rule, settled by numerous decisions of the Supreme Court of Tennessee and this Court, that a verdict of guilt, approved by the trial judge, accredits the testimony of the State's witnesses, resolves all conflicts in the testimony in favor of the State and establishes the State's theory of the case; that under such a verdict the presumption of innocence which the law throws around an accused and which stands as a witness for him in his trial disappears, and upon appeal that presumption of innocence is replaced by a presumption of guilt; that this Court is not permitted to reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury and in favor of the innocence of the accused; that we may review the evidence only to determine whether it preponderates against the verdict and in favor of his innocence. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186; Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, Tenn.Cr.App., 425 S.W.2d 799; Brown v. State, Tenn.Cr.App., 441 S.W.2d 485; Palmer v. State, Tenn.Cr.App., 435 S.W.2d 128; Morelock v. State, Tenn.Cr.App., 460 S.W.2d 861.

This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

We summarize the material evidence. Late in the afternoon of May 2, 1970 in her Nashville apartment, the defendant cut William Springer's throat with a butcher knife, inflicting a deep wound about four or four and a half inches long on the right side of his neck which severed the musculature and blood vessels and caused fatal hemorrhage. The officers found Springer, dressed in pants and shirt open at the neck and shoes, lying on his back across a couch which had been extended and converted to a bed--his feet on the floor. From the immense amount of blood on the bed clothing under and around his head and the absence of blood on the front of his shirt, all as shown in a photograph admitted as exhibit one for the State, the official Davidson County Medical Examiner, who examined the body officially and described the nature and fatal character of the wounds and examined the mentioned photograph, testified without objection that in his medical opinion the deceased 'had to be lying down when the wounds were inflicted.'

Immediately after the killing, the defendant went to the next-door apartment, separated from hers only by a partition wall, and stated that somebody had 'jumped on Bill (deceased) about some money he owed them' and asked to use the telephone to call an ambulance. One of those neighbors made the call for her. The defendant was not excited or crying, had no bruises or scratches or other marks on her face, there was no blood on her and her clothing was not disarranged in any way. Any loud talking or noise in one of the apartments was audible in the other. The occupants of the next-door apartment, heard no noise or disturbance in the defendant's apartment that day.

The District Attorney General's criminal investigator arrived at the scene about 6:00 p.m. Upon defense objection to questions directed to him concerning extra-judicial statements by the defendant, the trial judge conducted a lengthy preliminary inquiry apart from the jury, during which the court heard the testimony of the criminal investigator, the defendant, and a social worker who was employed by the Hubbard Hospital of Meharry Medical College and who had interviewed the defendant in early November of 1969. The trial judge then found and held, and we think he was clearly correct, that before each of two separate interrogations at police headquarters the defendant was fully advised concerning her constitutional rights in keeping with the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that she comprehended and understandingly waived her rights. The trial court's determination with reference to compliance with the Miranda mandate by the investigating officers and as to the voluntariness of statements made by the defendant during custodial interrogation, is conclusive on appeal unless the appellate court finds that the evidence touching those questions preponderates against the trial judge's findings. Mitchell v. State, Tenn.Cr.App., 464 S.W.2d 307; Lloyd v. State, 223 Tenn. 1, 440 S.W.2d 797. Upon appeal, the defendant has the burden of showing that the evidence preponderated against such a finding by the trial judge. Mitchell v. State, supra; Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1.

In the presence of the jury the criminal investigator then testified that after looking at the deceased and observing conditions in the room he had a conversation with the defendant; that she related to him that the deceased came to her apartment and asked for Batson (referring to one Henry Batson shown by this record to have lived in the defendant's apartment at various times); that Batson and an unknown man came in shortly thereafter and Batson had a shotgun and forced her to leave the house under threat that he would kill her if she did not do so; that she left and when she returned and looked in the back bedroom she saw the deceased was hurt, and she went next door and asked the occupants of that apartment to call an ambulance. There was no defense objection to that testimony, presumably because of the rule that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process, when the investigation has not progressed beyond general inquiry, is not forbidden and statements made in those circumstances are admissible. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366; State v. Morris, 224 Tenn. 437, 456 S.W.2d 840; Miranda v. Arizona, supra.

Because of the conflict between her statement to the next-door neighbors and what she told the criminal investigator, she was taken to police headquarters later that evening where, after being fully advised of her rights, she related substantially the same story she gave the criminal investigator in his first conversation with her at her apartment, adding that when Springer came in and asked for Henry Batson he said that he had Batson's wine and money, that Batson had been letting him stay there and he was going in where Batson put him, that when Batson came in a few minutes later he said Springer had taken his money and wine and asked where he was and she told him that he was in the room where he (Batson) had put him, that shortly a stranger came in with a shotgun and inquired about Springer and 'I said 'You all are not going to kill that boy," and that Batson and the stranger were gone when she returned to the house about 15 minutes after being forced to leave, and she went into the bedroom and saw that Springer had been cut. After that interview, she was permitted to return home.

Two days later, after talking with Henry Batson, the criminal investigator saw the defendant on the street and picked her up and again advised her fully concerning her constitutional rights, and told her that he doubted the veracity of her earlier statements. She then told this officer that she killed Springer and went with him to her apartment and gave him the butcher knife, which she produced from a kitchen cabinet. The knife was not found when the apartment was searched the night of the killing.

After surrendering the knife, the defendant was taken again to police headquarters and once more was advised concerning her constitutional rights. The substance of her statement at that time was that while she was in the kitchen cooking on the afternoon in question Springer entered her apartment with a tall bottle of wine, asked where Henry Batson was, took a drink of wine from his bottle, and then slapped her across the eyes as 'I was stirring up my pots on the stove'; that he then put his hand in his pocket and stood by the bed 'looking right dead at me,' and told her that he ought to hit her again and 'I told...