State v. Davis

• Decision Date: 24 February 1988
• Citation: 751 S.W.2d 167
• Parties: STATE of Tennessee, Appellee, v. Russell DAVIS, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 167

751 S.W.2d 167

STATE of Tennessee, Appellee, v. Russell DAVIS, Appellant.

Court of Criminal Appeals of Tennessee at Jackson.

Feb. 24, 1988.

Permission to Appeal Denied by

Supreme Court May 31, 1988.

Edward Witt Chandler, Memphis, for appellant.

W.J. Michael Cody, Atty. Gen., James W. Thompson, Asst. Atty. Gen., Nashville, James J. Challen, III, John W. Overton, Jr., Asst. Dist. Attys., Memphis, for appellee.

OPINION

LLOYD TATUM, Special Judge.

The defendant, Russell Davis, was charged in a two-count indictment with first-degree premeditated murder and murder in the perpetration of rape. The jury found him guilty of voluntary manslaughter. He was sentenced to 10 years incarceration as an especially aggravated offender (Range II). The sentence was ordered to be served consecutively to four previous sentences.

The defendant presents five issues on this appeal. He attacks the sufficiency of the evidence, the validity of a search of his truck and his residence, the admissibility in evidence of medical records of the victim, and the trial court's jury instructions. After considering the issues, we find that the judgment of the trial court must be affirmed.

We first address the issue attacking the sufficiency of the evidence. The victim, Bernice Pleasure, a resident of Memphis, disappeared on November 24, 1985. She was last seen at a 7-Eleven Store between 7:30 and 8:00 o'clock p.m. on that date. Between 8:30 and 9:00 o'clock p.m. on the date of the victim's disappearance, a neighbor heard a female scream coming from the direction of the victim's residence.

On December 28, 1985, the nude body of the victim, Bernice Pleasure, was found in a grassy field located in Memphis, Shelby County, Tennessee. The body was determined to be that of Bernice Pleasure by the comparison of Ms. Pleasure's dental chart with the teeth of the deceased by a specialist in the field of forensic odontology.

An autopsy was performed by Dr. James Spencer Bell, an expert in the field of anatomical and forensic pathology. Dr. Bell testified that the cause of death was "blocked trauma to the neck; the fracture of the organs of the neck, specifically the larynx and hyoid bone."

The victim's son, David Pleasure, testified that a plumber had worked at the residence of he and his mother shortly before her disappearance. ¹ About one week before his mother's disappearance, the plumber came unexpectedly to the residence at approximately 11:00 o'clock p.m. David informed the plumber that his mother was sleeping and refused to permit the plumber to speak with her. The plumber then told the witness, "I'll just come back tomorrow."

Mr. Pleasure identified a photograph of a black pickup truck as one appearing to be the same as that driven by the plumber. ² The witness also identified a photograph of the appellant at the police station as being the plumber who worked at their house. He also identified the defendant at trial as the same plumber.

The serial number of a Black & Decker Drill, found at the defendant's home, matched the serial number on a Black & Decker Drill box found within 50 yards from the victim's nude body. In the defendant's truck, police found a Bernzomatic propane fuel cylinder with torch and oxygen tank. Police officers had previously found a Bernzomatic tank box within 50 yards of the victim's body in the field. Police also found a lady's cigarette lighter and a beige straw belt in the appellant's truck. The victim's daughter identified the belt as one that she had bought and had left at the victim's residence. She related that she and her mother had occasionally worn each other's clothing.

Expert testimony revealed the presence of sperm in both the victim's vagina and anus. It was further established that the substances found were consistent with the male performer being a non-secreter. It was also established that the defendant was a non-secreter. ³

When arrested, ⁴ and after being given Miranda warnings, the defendant gave a statement to police. When asked where he had worked, he did not mention that he had worked at Homecrafters until Homecrafters was specifically mentioned by the police. He first denied knowing the victim other than having learned about her from the newspaper and television, but subsequently admitted knowing her after being informed that the victim's son could identify a plumber from Homecrafters who had done work at the victim's home. When the police asked what he was doing on the day the victim disappeared, without mentioning a day or date, the defendant stated, "That was a Sunday and I was in church."

The defendant introduced several witnesses who testified that he was at home from 5:30 p.m. on November 24, 1985, until the next morning.

The evidence would have supported a conviction for murder. The jury could have concluded, from the evidence, that the victim was abducted by the defendant at the victim's home, taken to the grassy field in his truck, and there raped and killed by the defendant with a blunt instrument. There is no evidence that the homicide was committed "upon a sudden heat." ⁵ Even so, this does not permit reversing as the verdict of the jury establishes that the defendant's alibi defense was not accepted.

In State v. Mellons, 557 S.W.2d 497 (Tenn.1977), the defendant was indicted on two counts of second-degree murder and found guilty of voluntary manslaughter. In dealing with an identical question as to whether the evidence would support the conviction in the absence of proof that the homicide was committed "upon a sudden heat," the Supreme Court said:

" 'A homicide of this character, generally speaking, is either involuntary manslaughter [citing cases] or second degree murder....' Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500, 502 (1957). Rarely will the facts be such as to show that the defendant has committed voluntary manslaughter. In the instant case, there is no question but that the evidence in the record fails to satisfy the legal requirements of the crime of voluntary manslaughter. Manslaughter is defined in T.C.A. Sec. 39-2409 as 'the unlawful killing of another without malice, either express or implied, which may be either voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act.' There is no evidence which indicates that the defendant caused the death of the two girls 'upon a sudden heat.'

However, that, of itself, does not necessarily require that the conviction of the defendant for voluntary manslaughter be reversed. Under T.C.A. Sec. 40-2520,

[u]pon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto....

Furthermore, under T.C.A. Sec. 40-2518,

[i]t [is] the duty of all judges charging juries in ... prosecutions for any felony when two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

Voluntary manslaughter is a lesser degree of homicide than second degree murder, the offense with which the defendant was charged in this case. Templeton v. State, 146 Tenn. 272, 240 S.W. 789 (1922); Bartlett v. State, 1 Tenn.Cr.App. 60, 429 S.W.2d 131 (1968). If the statutes cited are taken literally, they mandate an instruction concerning and sanction a conviction of voluntary manslaughter in all cases in which the jury is properly charged on second degree murder. However, as these statutes have been interpreted, it is not reversible error for the trial judge to fail to give an instruction on a lesser degree of an offense or on a lesser included offense of which there is no evidence in the record. Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949); Powers v. State, 117 Tenn. 363, 97 S.W. 815 (1906). To the contrary, the giving of instructions on offenses for which there is no evidence in the record is to be avoided. Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). But the giving of such an instruction, even though it results in conviction of a lesser included offense not supported by the evidence, though error, is not necessarily reversible error. On appeal, a conviction of a lesser degree of the crime charged, or of a lesser included offense, will be upheld, even if there is no evidence in the record to establish the technical elements of that crime, if the evidence demands a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal of the greater crime, or if there is, the verdict of the jury clearly indicates that the evidence in support of acquittal was disbelieved, on the theory that the defendant was not prejudiced by the charge and the resulting verdict. See Reagan v. State, 155 Tenn. 397, 293 S.W. 755 (1927); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1975); Howard v. State, 506 S.W.2d 951 (Tenn.Cr.App.1973). See also 102 A.L.R. 1019, 1026; 4 WHARTON'S CRIMINAL PROCEDURE Sec. 545 at 29-30 (12th ed. Torcia 1976)."

We therefore hold that the judgment is valid though there was no evidence that the homicide was committed "on a sudden heat."

We find from the foregoing evidence that the other arguments made by the...