State v. Branam
| Decision Date | 24 May 1993 |
| Citation | 855 S.W.2d 563 |
| Parties | STATE of Tennessee, Appellee, v. Danny BRANAM, Appellant. |
| Court | Tennessee Supreme Court |
James H. Varner, Jr., Leslie M. Jeffress, Randall E. Reagan, James J. Montague, Jr., Knoxville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Nashville, Rebecca L. Gundt, Asst Atty. Gen., Robert L. Jolley, Jr., Mike G. Nassios, Asst. Dist. Attys. Gen., Knoxville, for appellee.
In this direct appeal, we are asked to reverse defendant Danny Branam's convictions on charges of conspiracy to commit armed robbery, armed robbery, and first degree murder, and to set aside the death penalty he received for the murder conviction. At this stage, the case presents three principal issues for review: (1) whether a confession obtained surreptitiously from Branam by means of a "jail-plant" should have been suppressed as a violation of either federal or state law; (2) whether the state withheld evidence that was material to the defendant's guilt or innocence, or to his punishment, in violation of Brady v. Maryland; and (3) whether Branam, as a participant in a felony-murder, is subject to imposition of the death penalty.
Because we conclude that Branam was improperly sentenced to death under both state and federal law, we find it necessary to reduce his sentence to life imprisonment. Because the record suggests but does not clearly show that there was a Brady violation, we conclude that the case must be remanded for a hearing on this issue. Although the trial court's resolution of the Brady question may require a retrial, we find no reversible error in connection with the introduction of the defendant's confession and hold that it would be admissible at a second trial, if one becomes necessary.
Our rulings on these three questions make moot many of the other issues raised on appeal, including several alleged improprieties in the voir dire of the jury on matters related to capital punishment and various challenges to the constitutionality of Tennessee's death penalty statute. As to the remaining questions, we find no grounds for reversal of Branam's conviction.
With regard to the trial court's alleged error in severing Branam's trial from those of his two co-defendants, the record on appeal is inadequate for review. Although the motion itself is included in the technical record, there is no transcript of the hearing on the motion, nor any other evidence indicating why the state sought the severance or why the trial court allowed it. Hence, there is no way to substantiate the defendant's claim that the prosecution moved to sever in order to take unfair advantage of him at trial. Moreover, the severance issue was not included in the defendant's motion for a new trial and has therefore been waived as a ground for relief on direct appeal.
On the issue of the trial court's failure to permit appointed counsel to withdraw, we likewise conclude that the record is inadequate for review. It shows that some two weeks before trial, Branam's attorneys filed a motion in the trial court to withdraw as counsel. Two days later, at a hearing on the motion, one of the two trial attorneys appointed to represent the defendant made the following statement to the trial judge:
We have had a situation arise, Judge, in which we have been placed in the position of having a conflict in this cause. The actual nature of that conflict, I am unable to divulge, because of the attorney-client privilege. I can tell the Court that it is one which places me in conflict and Mr. Montague in conflict with the disciplinary rules and our obligations to our client.
Because the problem involved the confidences of his client, counsel was never any more specific about the "conflict." He indicated that other lawyers, lacking "the long and involved contact with this case" that he and his co-counsel had, would not have the same difficulties and urged the court to appoint new counsel. At the end of the hearing, the trial judge suggested that counsel seek an opinion from the disciplinary board "right away" and "presently denied" the motion. There is no further information in the record concerning the motion to withdraw. Attorneys representing Branam on appeal surmise that his trial attorneys were concerned about possible fraud that the defendant might "attempt to foist upon the trial court should he testify at trial." Of course, this sort of problem likely would have continued to exist for successor counsel.
The law provides that a trial judge may, upon good cause shown, permit the withdrawal of an attorney appointed to represent an indigent defendant in a criminal case. See T.C.A. § 40-14-205. But the trial court has wide discretion in matters regarding the appointment and relief of counsel, and its action will not be set aside on appeal unless a plain abuse of that discretion is shown. State v. Rubio, 746 S.W.2d 732, 737 (Tenn.Crim.App.1987). We find nothing in the present record that would require mandatory withdrawal of counsel or even permit the permissive withdrawal of counsel. See Supreme Court Rule 8, DR 2-110; cf. Jones v. State, 548 S.W.2d 329, 333-334 (Tenn.Crim.App.1976). Moreover, the record contains only vague allegations of a conflict and does not show an abuse of discretion by the trial court in refusing to allow counsel to withdraw. Finally, the defendant has not established on appeal that there was an actual conflict of interest that adversely affected counsel's performance. See State v. Street, 768 S.W.2d 703, 708 (Tenn.Crim.App.1988). For these reasons we find no reversible error in connection with the trial court's ruling on counsel's motion to withdraw.
The proof at trial showed that just after midnight on July 23, 1987, residents of a south Knoxville neighborhood were awakened by the sound of gunshots, followed by the intermittent honking of a car horn. Police were summoned, only to find 60-year-old Gladys Houston, badly wounded and bleeding, in the front seat of her automobile in the driveway of her home. Houston was conscious but unable to talk. She was transported to the University of Tennessee Hospital, where she later died from her wounds.
Gladys Houston had sustained multiple gunshot wounds. The coroner's report indicated that she suffered a contact wound to her left hand, a fatal wound to her right neck extending up through the right side of her nose, a wound to her right shoulder, and an incidental wound to her scalp. Bullet fragments and cartridge casings found at the scene, as well as a fragment taken from her body, established that she had been shot with a nine-millimeter gun. Shots had been fired from behind the automobile through the rear window and from outside the driver's side of the car. When the vehicle was found, the driver's door, the front passenger door, the glove compartment, and the trunk were all open. A small automatic weapon containing one round of ammunition was found on the floorboard of the driver's side of the car. The safety was engaged and the weapon had not been fired.
The Houston family had operated a stockyard in Sweetwater, Tennessee, for many years. The state theorized that the perpetrators thought that Gladys Houston would be carrying the proceeds from the stockyard's weekly sales on the night she was killed. Instead, her husband had deposited those sums, and she had left the stockyard around midnight with only the proceeds from a snack bar, a drink machine, and a "flea market" run by the family. She also had a sack of tomatoes that she had been given. The tomatoes and a bag containing $6.50 in change from the soft drink machine were missing from her car when she was found. Later that morning, a neighbor discovered the sack of tomatoes, a few 25-cent coin wrappers, and a cloth bank bag lying along the road approximately 600 yards from the Houston home.
Several witnesses remembered seeing a Cadillac in the vicinity of the stockyard the night Gladys Houston was killed. Also, three unidentified men, who had been seen in a bar near the stockyard between 6:30 and 7:00 p.m., left the bar driving a Cadillac with dealer plates and headed back toward Knoxville. The car was later seen parked at the stockyard between 11:30 p.m. and midnight. Two stockyard employees saw a man get out of the back seat of the car, go inside the building, and then return to the car. Two other men were in the car. One of the employees later identified a photograph of Branam as resembling the person she saw get out of the car. There was also testimony that the defendant lived in the Sweetwater area and had previously worked at the stockyard.
The Cadillac was eventually identified as belonging to Ray Elliott, who was married to Branam's aunt. Ballistic testing indicated that cartridge casings found at Elliott's farm in Union County had been fired from the same nine-millimeter weapon used to kill Gladys Houston. Elliott, who was charged as an accessory before the fact, testified at trial that his brothers-in-law, Tommy Joe Walker and Ernest Walker, and their nephew, the defendant, came to his home in the summer of 1987. According to Elliott, Ernest Walker asked to borrow Elliott's 1980 Cadillac, and Branam indicated that they were going to Sweetwater to discuss "doing a job." Elliott testified that when the three men returned later that night, Ernest Walker handed him the keys to his Cadillac. At that point, Elliott testified, he learned for the first time that Tommy Joe Walker had taken Elliott's nine-millimeter semi-automatic gun. When Elliott, who admitted during testimony that he was high on cocaine at the time, asked what Tommy Joe Walker was doing with the gun, Walker indicated that "he had to shoot somebody with the gun," "a lady in Sweetwater;" that "something went wrong ... the lady pulled a gun ... [h]e had to shoot her." When Elliott said that he did not believe Walker, Branam said that ...
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