State v. Durham
| Decision Date | 03 February 1981 |
| Docket Number | No. 80-76-III,80-76-III |
| Citation | 614 S.W.2d 815 |
| Parties | STATE of Tennessee, Appellee, v. Raymond W. DURHAM, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Roy N. Wilson, Brown & Wilson, Dickson, for appellant.
William M. Leech, Jr., Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, William B. Lockert, Jr., Dist. Atty. Gen., James Kenneth Atkins and Dan Cook, Asst. Dist. Attys. Gen., Ashland City, for appellee.
The appellant-defendant, Raymond W. Durham, after a jury trial on his plea of not guilty, was convicted of murder in the second degree and received a penitentiary sentence of fifteen (15) years. In the same trial, the defendant pled guilty to the offense of driving on a revoked license, and for this offense the jury fixed his punishment at a workhouse sentence of five (5) months, and the trial court ordered this sentence to be served concurrently with his penitentiary sentence.
In this appeal, the defendant contests the legal sufficiency of the convicting evidence, contends that the trial court erroneously allowed an amendment to another indictment which charged him with driving while under the influence of an intoxicant, complains of a witness's testimony about an out-of-court statement made by another witness, and insists that the district attorney general's argument was improper.
We note that none of the foregoing complaints were listed as grounds in the defendant's motion for a new trial. Rule 3(e) of the Tennessee Rules of Appellate Procedure provides, in part:
(I)n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived. (emphasis added).
Thus, by virtue of the above rule, the defendant is not entitled to a review of any of his contentions, except the one regarding his evidentiary complaint. 1
On December 14, 1978, around 5:15 p. m., there was a collision between two automobiles on Highway No. 46 in Dickson County. The defendant was driving one of the vehicles, and the deceased, Orvil B. Sullivan, was driving the other car. James Lowe was a passenger in the defendant's vehicle. All these individuals were injured and taken to the hospital. Lowe and the defendant were treated and released from the hospital, with the defendant being released to the custody of the police. Mr. Sullivan died from his injuries shortly after arriving at the hospital, and his death resulted in this charge of second degree murder against the defendant.
The State's evidence showed that at the time of the collision, the defendant's vehicle was travelling between sixty (60) and sixty-five (65) miles per hour, that the collision occurred on the deceased's side of the road, and that at the time of the collision the defendant was operating his vehicle while he was under the influence of intoxicants.
William Harrington and his brother, Roy Harrington, were travelling in separate vehicles in front of the deceased when they observed a vehicle coming towards them in their lane of traffic. Both turned their vehicles onto a side road and thus were able to avoid a collision, but the oncoming vehicle collided with the deceased's car.
Trooper Gerald Bomba, who investigated the accident, observed the defendant at the scene, at the hospital, and at the police station. He smelled beer on the defendant's breath and noticed that he had difficulty in walking. Trooper Bomba testified that he concluded the defendant was under the influence of alcohol because of the conversations he had with him, "the color of his eyes, his breath, and his cocky attitude." At the hospital, the defendant was argumentative, and when told by Trooper Bomba that he had "killed somebody," the defendant would "grin" and "snicker."
Virginia England came upon the scene after the wreck and saw the defendant, heard him cursing, and smelled beer on his person.
James F. Lowe, a passenger in the defendant's automobile, testified for the State and said that after he and the defendant got off from work, they went to the Ron De Voo Club and drank two (2) beers each, then went to the Blue Moon Club where they each had a drink of whiskey. Also, while at the Blue Moon Club, the defendant ordered another beer for each of them, but they did not drink all of this beer because they got "rowdy" and were asked to leave. However before they left the defendant ordered two (2) more cans of beer to go.
Officer James Roy Johnson of the Dickson City Police Department testified that the defendant was laughing and cursing at the hospital and that he could smell "the odor of an alcoholic beverage on his breath," and that in his opinion, the defendant was under the influence of an intoxicant.
Randy Hill, an emergency medical technician with the Dixon County Ambulance Service, observed the defendant as he was being taken to the hospital. Hill noticed an "apparent odor of alcohol" on the defendant's breath. Hill opined that on the basis of similar experiences he had had in the past with individuals involved in automobile wrecks, and in light of the defendant's actions, speech and demeanor, the defendant was "under the influence of alcohol."
The defendant testified and denied that he was under the influence of intoxicants at the time of the wreck. According to him, he got off work at 2:30 p. m., and went with Lowe to the Ron De Voo Club where they each drank two (2) beers. They left there at around 4:35 p. m. and went to the Blue Moon Club where he drank one-half of a can of beer, at which time they were asked to leave because Lowe had caused a disturbance. He then decided to return to the first club that they had visited to get a six-pack of beer to take home. On the way to the club, the defendant reached under the deck to turn on the heater, and when he did so, his car collided with the deceased's vehicle. The defendant admitted that he "might have scooted over the line" and "might have been over the line" at the time of the collision.
A defense witness, Albert Odom, testified that he saw the defendant at the Blue Moon Club around 4:00 p. m. and that the defendant ordered one (1) beer. He said that the defendant didn't "appear to be under the influence of anything."
Farris Neely, an employee of the Ron De Voo Club and a half-sister to the defendant, said that the defendant was not intoxicated when he left that club. Helen Murray, a friend of Ms. Neely, testified that the defendant drank one (1) beer at the Ron De Voo Club and that he was not intoxicated when he left there.
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