State v. Davis
| Decision Date | 11 December 1987 |
| Citation | 748 S.W.2d 206 |
| Parties | STATE of Tennessee, Appellee, v. LaDonna H. DAVIS, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Robert H. Crawford, Jr., Robert H. Crawford, Sr., Crawford, Hayes & Crawford, Chattanooga, for appellant.
W.J. Michael Cody, State Atty. Gen. & Reporter, Janice Bossing, Asst. State Atty. Gen., Nashville, Frank Groves, Thomas Evans, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
The defendant, LaDonna Davis, was convicted, by a jury, of the first degree murder of her husband. She received a life sentence.
On appeal, the defendant says the indictment should have been dismissed as vague and insufficient, the state's response to her motion for a bill of particulars was inadequate, the evidence is insufficient to support the verdict, and several of her statements to police officers should have been suppressed.
The judgment is affirmed.
At the outset, the state contends this appeal should be dismissed because the defendant's motion for a new trial and subsequent notice of appeal were untimely filed.
Judgment was entered on the jury verdict and the sentence was imposed at the close of the trial on November 6, 1986. On December 4, 1986 the trial court entered an order allowing an additional thirty days for filing the motion for a new trial and reciting that "good and sufficient reasons" had been shown. On January 5, 1987 the defendant filed her motion for a new trial. After a hearing the motion was denied on February 9, 1987. Defendant filed a notice of appeal from the final judgment on March 10, 1987.
Under prior decisions of this Court and the explicit language of the Rules of Criminal Procedure the trial court was without authority to enlarge the time for filing the new trial motion. Rule 33(b), Tenn.R.Crim.P., requires that motions for a new trial be made in writing within thirty days of the date the sentencing order is entered. Rule 45(b), Tenn.R.Crim.P., which provides generally for the enlargement of time requirements under the Rules, expressly excepts new trial motions: "[B]ut the court may not extend the time for taking any action under Rules 29, 33 and 34, except to the extent and under the conditions stated in them." Rule 33 does not state any such "extent" or "condition." The defendant's good faith efforts within the thirty-day period cannot alter the mandatory rule of procedure, and the state cannot waive it. State v. Givhan, 616 S.W.2d 612 (Tenn.Cr.App.1980).
Because the untimely motion was a nullity, it did not toll or defer the thirty-day period for filing the notice of appeal, which expired on December 6, 1986. See T.R.A.P. 4(c). On this basis the state urges that the appeal be dismissed.
The timely filing of a notice of appeal is no longer a prerequisite to jurisdiction in this Court, and we elect in this case to waive the requirement in the interest of justice. See T.R.A.P. 4(a). While we cannot review those issues upon which a new trial was sought, we may review those issues that would result in a dismissal. T.R.A.P. 3(e); State v. Williams, 675 S.W.2d 499 (Tenn.Cr.App.1984); State v. Givhan, 616 S.W.2d 612 (Tenn.Cr.App.1980). Therefore, the issues concerning the admissibility of the defendant's statement and the adequacy of the bill of particulars are waived; the sufficiency of the indictment and the sufficiency of the evidence are properly before this Court.
The grand jurors of Hamilton County returned a true bill in this case, charging
That LaDonna H. Davis and Anthony L. Rogers heretofore on the 15th day of March, 1986, in the County aforesaid, did unlawfully, feloniously, deliberately, maliciously, premeditatedly and of malice aforethought assault, kill and murder Terry L. Davis, against the peace and dignity of the State.
It is well settled that an indictment is sufficient if it (1) gives notice of the offense with which the defendant is charged; (2) enables the court to enter a proper judgment, and (3) describes the offense so as to allow the accused to raise a plea of former jeopardy. The defendant says this presentment did not "apprise her of the facts necessary to formulate the basis of her defense." The allegations track the language of the applicable statutes, T.C.A. § 39-2-202, -201, and clearly charge murder in the first degree. The victim is named, as well as the date of the offense. This is a competent presentment.
If further details are required on the particular case, they may be sought by requesting a bill of particulars or obtained through the discovery procedure. In this case the defendant wanted to know the instrumentality of the crime and the precise manner of her alleged participation. None of this is essential to a charge of first degree murder.
We review the evidence to determine if a rational juror could find beyond a reasonable doubt the defendant committed all the elements of the offense, keeping in mind that the credibility of the witnesses, the weight of any items of evidence, and conflicts in the proof are matters to be resolved exclusively by the jury.
The victim in this case, husband of the defendant, was discovered in a closet of his apartment on the evening of March 15, 1986. His body was bloody and bound with strips of cloth and wire. There were bloodstains throughout the apartment, and a tire jack with traces of blood and hair was found in the kitchen. A jar of water, with still frozen ice cubes, was found in the bedroom.
The deceased suffered six major head wounds, each potentially fatal, caused by both blunt and sharp instruments, but he did not die immediately. The various wounds were consistent with the weight and shape of the tire jack and a hatchet discovered a short distance from the dwelling.
The state's proof showed that the defendant and Anthony Rogers had previously had an intimate relationship and in recent weeks he had been hanging about the Davis apartment, over Terry Davis' objection. On one occasion they had fought, and on the night of the 14th Terry Davis called the landlord to remove Rogers from the premises. The defendant protested and declared she would get even with the person who made Rogers leave.
The Davises' neighbor had on several occasions heard the defendant threaten her husband, saying "Anthony will kill you." Another witness heard the Davises argue on March 14, and the defendant repeatedly said that she would kill Terry and get Anthony to help.
On the morning of the 15th Davis and his wife came to their neighbor's door to ask for cigarettes. A short time later, through her kitchen window, the neighbor heard Anthony Rogers say "Make one wrong move, and I'll slit your throat." She heard Davis call out his wife's name.
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