Green v. State

• Decision Date: 31 July 1969
• Parties: Thomas GREEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 27

450 S.W.2d 27

1 Tenn.Crim.App. 719

Thomas GREEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 31, 1969.

Certiorari Denied by Supreme Court Jan. 5, 1970.

Stuart E. Duncan, Chattanooga, for plaintiff in error.

George F. McCanless, Atty. Gen., Albert D. Noe, IV, Asst. Atty. Gen., Nashville, Richard R. Ruth, Jr., Asst. Dist. Atty. Gen., Chattanooga, for defendant in error.

OPINION

WALKER, Presiding Judge.

The defendant below, Thomas Green, was found guilty of murder in the first degree, in the Criminal Court of Hamilton County, and sentenced to 25 years in the penitentiary, from which judgment he appeals to this court. He contends that the evidence did not warrant a conviction for murder in the first degree, particularly that no premeditation was shown.

The deceased, Morris Snow, age 21 and three other young men (Sylvester Hill, Tommy Lee Billups, and Larry Code) were at Velma's Tea Room in Chattanooga in the early morning hours of January 19, 1968. There was some disagreement between Snow and the defendant. Billups says that the defendant and two other people came to Snow's table and the defendant argued with him, telling Snow: 'My brother killed a man the other night, and you're going to mess around here and get killed, too.' After this the defendant and Snow shook hands and the defendant said to forget it. He then returned to his table in another part of the room and the deceased, Snow, sat at his table with his three friends and was drinking a bottle of beer.

A short time later, estimated by the witnesses from four to twenty minutes, the defendant returned to the table where Snow was seated and told him to go home, to which Snow replied that he was grown and didn't have to go home. The defendant asked the deceased to repeat himself and he again said he was grown. All of the witnesses agree that the defendant pulled a pistol and shot the deceased while he was seated at the table with his hands on it. The defendant fired several shots, one striking the deceased back of the left ear and another back of the left shoulder. The second shot was fired after Snow had fallen to the floor. The defendant and one of his friends ran out of the building.

The defendant did not testify or present any evidence as to the facts of the case.

Of course, to support a verdict finding a defendant guilty of murder in the first degree, there must be an evidentiary basis for a conclusion that the killing was willful, deliberate, malicious and premeditated, unless effected by poison or lying in wait or in the perpetration of one of the felonies named in the defining statute, in which cases the specified circumstances make it otherwise unnecessary to prove deliberation and premeditation. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707.

Here the defendant had had an argument, during which he threatened to kill the deceased. After some minutes and time to become cool, he returned and shot the deceased. The jury was well warranted in concluding the killing came from deliberation and premeditation. It is not necessary that the design or intention to kill should have been conceived or have pre-existed in the mind any definite time anterior to its execution. It is sufficient if it preceded the assault, however short the interval, and the length of time is not the essence of this constituent of the offense. The design may be conceived and deliberately formed in an instant. Hence it is not material that the interval of premeditation was brief. See Lewis v. State, 40 Tenn. 127; Galvin v. State, 46 Tenn. 283; and Franks v. State, 187 Tenn. 174, 213 S.W.2d 105. This assignment is overruled.

The second assignment of error is:

'The defendant was denied his constitutional right of a full and complete appellate review by reason of the court reporter's failure to fully prepare the transcript of this case.'

The defendant contends that the failure of the court reporter to include the arguments of counsel prevented him from having an adequate review and denied him his constitutional rights.

The only grounds for the motion for a new trial were that the evidence did not support the verdict and preponderated against it. The motion did not question the argument or the instructions. The defendant's counsel approved the bill of exceptions.

Under Rule 2 of the Supreme Court, also the rule of this court, all that is immaterial and no longer controverted should be omitted from the bill of exceptions. Arguments of counsel must not be included unless the same were seasonably objected to. Also Rule 14(5) provides that grounds upon which a new trial is sought will not constitute a ground of reversal unless it affirmatively appears that the same was specifically stated in the motion for a new trial in the lower court and decided adversely to the plaintiff in error, but will be treated as waived.

T.C.A. Sec. 40--2029 to 40--2043 provides for transcripts to be furnished in felony cases. T.C.A. Sec. 40-- 2037 provides that upon the direction of the court in the case of an indigent defendant, or at the request of any party who has agreed to pay the fee, the court reporter shall transcribe from the original records such parts of the proceedings as are requested. There is no claim that the defendant ever requested any part of the proceedings not included in the bill of exceptions before us.

An indigent must be afforded as adequate an appellate review as defendants who have money enough to buy transcripts. This means state-furnished transcripts for indigents. Elliott v. State, Tenn., 435 S.W.2d 812 (1968). Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055. In Elliott, the defendant made affidavit of indigency and moved for a transcript of the voir dire examination of the jury panel. Our Supreme Court held that the trial court's refusal of this transcript was error. In the case before us, the defendant made no request for a transcript of argument or any part of the proceedings not included in the bill of exceptions. The record does not show that this defendant is indigent, but at oral argument his counsel announced that he was appointed by the trial court.

No constitutional right is involved here. The Supreme Court of California discusses this question in People v. Hill, 67 Cal.2d 105, 60 Cal.Rptr. 234, 429 P.2d 586, and holds that there is no denial of equal protection to require that an indigent defendant demonstrate the materiality of the summations of counsel before including transcripts of them on appeal. Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331, held that newly appointed counsel on appeal could not discharge his duty without a transcript of the testimony and the court's charge. This was based on federal statutory grounds rather than the Constitution. Under the federal statute, a court-appointed counsel who represents an indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. See Standards Relating to Criminal Appeals (tentative draft), an American Bar Association Project on Minimum Standards for Criminal Justice (1969). At page 90 it says:

'The Supreme Court has not interpreted this statutory structure to require that the government furnish a full transcript in all appeals by indigents. Such a transcript has been held to be necessary where counsel on appeal is different from counsel in the trial court. Hardy v. United States, 375 U.S. 277 (84 S.Ct. 424, 11 L.Ed.2d 331) (1964). Otherwise, however, the indigent on appeal is entitled to receive, at public expense, only the transcript relevant to the points of error assigned. See Farley v. United States, 354 U.S. 521 (77 S.Ct. 1371, 1 L.Ed.2d 1529) (1957); Ingram v. United States, (114 U.S.App.D.C. 283) 315 F.2d 29, 31 (D.C.Cir.1962).'

Even with newly assigned counsel, Hardy did not require a transcript of the argument under the federal statute.

The defendant here has had a full and complete appellate review, and the judgment of the lower court is affirmed.

OLIVER, Judge (concurring).

I concur in the result reached in the opinion prepared by the presiding judge.

With respect to the element of premeditation, I am in complete agreement that under the evidence in this record the jury was fully warranted in finding that the defendant deliberately and premeditatedly murdered the deceased. As pointed out in the opinion, the Supreme Court of this State has held many times that the elements of premeditation and deliberation may be inferred from the circumstances of the killing. Edwards v. State, 221 Tenn. 60, 424 S.W.2d 783.

Concerning the weight and sufficiency of evidence to establish premeditation, and particularly with reference to the nature of the act causing death, many courts have held that deliberation and premeditation may be inferred from the manner in which the killing was committed; and that repeated shots, blows, and other acts of violence are sufficient evidence of premeditation. 3 Warren on Homicide, § 273a, pp. 167--168. Such matters as the atrocity, cruelty, and malignity appearing in the circumstances under which the killing took place have been passed on frequently by the courts in considering the sufficiency of the evidence to sustain a conviction for first degree murder. 41 C.J.S. Homicide § 328, p. 71.

In this case the defendant deliberately shot the deceased in the head, mortally wounding him, callously shot him again in the back after he fell from his chair to the floor, and then fled the premises.

In State v. McNamara, 116 N.J.L. 497, 184 A. 797, cert. den. 299 U.S. 568, 57 S.Ct. 32, 81 L.Ed. 419, wherein the deceased was killed by multiple close-range revolver shots, the Court held that the repeated firing of a revolver is sufficient to establish premeditation.

In State v. Page, Mo., 130 S.W.2d 520, the deceased was killed by a gunshot wound making a hole the size of a man's fist...