Palmer v. State

• Decision Date: 04 September 1968
• Citation: 435 S.W.2d 128,1 Tenn.Crim.App. 223
• Parties: Floyd PALMER, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 128

435 S.W.2d 128

1 Tenn.Crim.App. 223

Floyd PALMER, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Sept. 4, 1968 Certiorari Denied by Supreme Court Dec. 16, 1968.

Douglas A. Meyer, Chattanooga, for plaintiff in error.

George F. McCanless, Atty. Gen., of Tennessee, Robert F. Hedgepath, Asst. Atty. Gen., Nashville, Gerald Summers, Asst. Dist. Atty. Gen., Chattanooga, for defendant in error.

OPINION

OLIVER, Judge.

Floyd Palmer, Jr., the plaintiff in error and defendant below, was convicted of first degree murder in the Criminal Court of Hamilton County and was sentenced to imprisonment in the State Penitentiary for twenty years and one day. His motion for a new trial being overruled, he prayed and was granted and has perfected an appeal in the nature of a writ of error to this Court.

The defendant's four Assignments of Error in this Court, all of which were raised in his motion for a new trial, question the evidence. By his first three Assignments he challenges the sufficiency of the evidence, contending that it preponderates against the verdict of the jury and in favor of his innocence. In examining this contention, we are bound by the well-established rule, settled by numerous decisions of the Supreme Court of Tennessee, 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 that the defendant has the burden of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Turner v. State, 216 Tenn. 714, 394 S.W.2d 635; Chico v. State, 217 Tenn. 19, 394 S.W.2d 648; Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170; Brenner v. State, 217 Tenn. 427, 398 S.W.2d 252; Owens v. State, 217 Tenn. 544, 399 S.W.2d 507; Harris v. State, 217 Tenn. 582, 399 S.W.2d 749; Pryor v. State, 217 Tenn. 695, 400 S.W.2d 700; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722; Patterson v State, 218 Tenn. 80, 400 S.W.2d 743; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

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.

While the defendant's wife and children were living in Michigan, he and the deceased, Ada Ruth Goins, lived together in a common-law relationship for approximately two years, occupying an apartment on Walnut Street in Chattanooga. Shortly before the date of the killing, his wife and children returned to Chattanooga. Locking the Walnut Street apartment, he went to live with his sister in order to be able to see his children while they and his wife were in town. On the night of May 28, 1967 the deceased, Arnold Wilson, and Johnny Jones were at the Fourth Street apartment of Lucille Southerland. All of them were drinking. That afternoon the deceased had called the defendant and asked him to remove the lock from their apartment or bring her the key so that she could get her clothes. The defendant appeared at the Southerland apartment shortly before midnight, and some words were exchanged between him and the deceased during which she told him that she had found a lock on the apartment door and she wanted him to remove it so she could get her clothes; there was also discussion about a phone call in which she had threatened him that if he didn't come down there she would cause him some trouble, and he told her that she ought not to be calling him up and threatening him and his wife and sister. The defendant went outside and returned within a few seconds with a singleshot shotgun. There was testimony that before he fired he made a statement to the deceased that 'You won't call my wife and me no more,' or words to that effect. The deceased arose from her chair, faced the defendant and said, 'Don't do it, Palmer.' From a distance of only a few feet, the defendant shot the deceased in the chest, killing her instantly. As she fell, she said, 'Lord, have mercy, Palmer.' At autopsy there was no evidence of any powder burns on her body. He removed the spent shell, reloaded the gun, said, 'Call an ambulance' and left the apartment.

The defendant testified that when the deceased called him at his sister's home somewhere near midnight and told him that if he didn't bring the key down there she was going to cause him some trouble, he took the key and went to Lucille Southerland's apartment; that while he and the deceased were talking about the key, Lucille Southerland pulled a pistol on him and told him she would shoot him if he didn't get out; that one Evelyn Cooper, or Hitchcock, was also there and ran outside and told his nephew, Winston Broome, who had remained in his car, about what was going on; that his nephew then brought his shotgun to him; that he pointed the shotgun at Lucille Southerland and told her to give him the pistol, and that the deceased got up and grabbed the shotgun by the barrel and pulled it around toward herself 'and jerked the hammer back just enough to fire,' and that it went off accidentally and killed her; that as she fell she said, 'Lord, have mercy, Palmer'; that he loved her and did not intend to kill her; that he put a lock on the apartment door when he went to his sister's house, and that he didn't know whether the deceased moved out or not; that after the shooting he left because 'I was just nervous; tore me up; shook me up'; and that he got the shotgun at home that evening and had it in his car.

Evelyn Cooper, or Hitchcock, testified that she had been at Lucille Southerland's apartment earlier that evening, had left to go to the washateria nearby, had returned to this apartment and had been there about ten minutes when the defendant came, and that he and the deceased began arguing; that Lucille Southerland pulled a pistol out of the top drawer of a chest; that she left, saw the defendant's nephew outside, told him, 'Don't go inside; they have a gun'; that he went to the car and got the gun, and went in the apartment with it; that the defendant was at the door and didn't come outside; and that both the defendant and his nephew went inside the apartment.

The defendant's nephew, Winston Broome, sixteen years old, testified that about 8:00 or 9:00 o'clock that evening he and the defendant went to the defendant's apartment to get some of his clothes, and also got the shotgun, and then went to see if they could find the deceased to give her the key to the apartment; that they first went to her sister's home, and then to Lucille Southerland's apartment; that the defendant told him to stay in the car and he would give the deceased the key and be right back; that Evelyn Cooper ran out and told him, 'They're going to kill Palmer; they've got a gun and gonna' kill him'; that he got the shotgun and loaded it and took it in the apartment and handed it to the defendant; that Lucille Southerland had a pistol aimed at the defendant; that the deceased jumped up and grabbed the shotgun and pulled it around toward herself and it went off; that he did not hear the deceased say anything before or after the shot was fired, and that he and the defendant went back to the car and left. He said that the defendant was not outside of the apartment and did not come to the door.

Lucille Southerland denied that she had a pistol before the shooting, but said that afterwards she handed a pistol to Johnny Jones. He testified that he did not see her pull a pistol, and that after the shooting he went to make a phone call for an ambulance, and that when he returned to the apartment she had a pistol and that he took it from her.

No one except the defendant and his nephew said that the deceased grabbed the shotgun.

Clearly, the evidence presented an issue of fact for the determination of the jury. By its verdict the jury rejected as completely diaphanous and transparent the defendant's contention that while Lucille Southerland held a pistol on him his nephew brought his shotgun to him and that he aimed it at her, and that the deceased was killed accidentally when she grabbed the gun and caused it to be discharged. Considering the evidence in the light of the law governing appellate review, as we must, the defendant has failed to carry the burden of demonstrating here that the evidence preponderates against the verdict and in favor of his innocence. On the contrary, the verdict was fully warranted by the evidence.

In his fourth Assignment of Error, the defendant contends that the court erred in admitting photographs of the deceased showing her lying where she fell and the large wound in her chest, insisting that this evidence was unnecessary to show the position and condition of the body and the nature and location of the wound inasmuch as those matters were shown by competent testimony, and that the pictures were offered only to arouse the emotions of the jury to the prejudice of the defendant. The photographs were admitted over defense objection.

In Hughes v. State, 126 Tenn. 40, 148 S.W. 543, it was insisted by appropriate Assignment of Error that the court erred in admitting two photographs, taken long after the homicide, and based solely upon the...