State v. Furlough
| Citation | 797 S.W.2d 631 |
| Decision Date | 10 April 1990 |
| Docket Number | No. 88-313-III,88-313-III |
| Parties | STATE of Tennessee, Appellee, v. Deborah Mae FURLOUGH, Appellant. |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
G. Michael Robbins, Goodlettsville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Linda Ann Hammond, Asst. Atty. Gen., Nashville, Lawrence Ray Whitley, Dist. Atty. Gen., Gallatin, for the State.
The defendant, Deborah Mae Furlough, was convicted of first degree murder in the firearm slaying of her husband, Tim Furlough; unlawful use of a firearm in the commission 1 of a felony; and the unlawful disposition of a body. A Range I offender, she received sentences of life, three, and three year sentences, respectively.
The defendant presents eleven issues in this appeal:
(1) Whether a statement she made to a detective should have been suppressed because it was taken in violation of her fifth amendment right to counsel.
(2) Whether a motion to dismiss the indictment charging her with the unlawful disposition of a body was improperly overruled.
(3) Whether the charge of unlawful disposition of a body should have been severed from the rest of the counts.
(4) Whether voir dire was improperly limited.
(5) Whether the jury should have been sequestered.
(6) Whether the introduction of photographs of the victim prejudiced the trial.
(7) Whether a hearsay statement made by the co-defendant was properly admitted into evidence.
(8) Whether the trial court erred in excluding evidence of prior violent acts of the deceased against third persons.
(9) Whether the trial court improperly excluded expert opinion testimony as to the defendant's state of mind at the time of the shooting.
(10) Whether certain requested jury instructions were improperly refused.
(11) Whether a motion for new trial on the grounds that defendant was denied an impartial jury should have been granted.
The conviction for the unlawful disposition of a body is reversed and dismissed; the remaining convictions are reversed and remanded.
With the exception of the circumstances surrounding the defendant's confession, the facts are not in substantial dispute. The defendant argued that at the time she shot her husband, she believed that both she and her daughter were in impending danger of death or serious bodily injury from the victim. The state contended that the murder was premeditated and without justification.
On the day of the shooting, the defendant, her cousin Mary Sue Scott, 2 and the victim borrowed a pickup truck from Scott's father in order to move the victim from Adolphus, Kentucky, to Nashville. The defendant and her daughter were to join him later. After travelling a short distance, the victim changed his mind about moving. Near Portland, Tennessee, the three purchased some beer and drove to a remote fishing area near the Tennessee/Kentucky line.
While the defendant and her cousin began to gather wood for a fire, the victim sat on the tailgate of the truck. The defendant stood up, took a rifle from the truck, and shot the victim in the chin. Scott, who was building a fire, turned to see the victim lying wounded on the ground; the defendant was trying to unjam her rifle. She then observed the defendant run to the truck and take a pistol from under the driver's seat. While not in a position to see, Scott heard the defendant fire a second time.
After the victim's clothes were removed, Scott helped the defendant bury the body in some sand and gravel a short distance away. Scott said that the defendant instructed her to move the fire to where the victim lay when he was shot so as to conceal the blood. On their return to Kentucky, the defendant told Scott not to discuss the shooting and concocted a story to cover the disappearance of the victim. Two days later the body was found and the matter was reported to the Sumner County Sheriff's Department.
The medical examiner determined that either shot would have been fatal. Both wounds revealed stippling, which occurs when a gun is discharged within twelve inches of the skin. The stipple patterns indicated that the gun had been discharged between one to four inches from the bullets' points of entry. The examiner confirmed that two different weapons were used.
The defendant testified in her own behalf. Shortly after her separation from her first husband, she began dating Tim Furlough. They lived together for a period of time but separated following a violent argument. Afterwards, the defendant learned she was pregnant, reconciled with the victim, and moved to her parents' home in Adolphus, Kentucky. They did not marry and slept in separate bedrooms.
Two months after moving into the house, the victim became angry with the defendant and her mother, cursed them, and turned over furniture. When the victim expressed his regrets over the incident, there ensued a second reconciliation.
There were apparently numerous violent incidents between the defendant and the victim during the course of their relationship. In most instances, the victim would assault the defendant, both verbally and physically, and later apologize for his outbursts. None of the defendant's injuries required medical attention. We note that eyewitness testimony corroborated three of the victim's violent acts against the defendant.
The victim became less violent for a short time after the defendant gave birth to a daughter. After the victim married the defendant, however, he reinstituted his abusive conduct. On several occasions, the victim forcibly removed the defendant's clothes in an attempt to have sex with her. He once attempted to smother her with a pillow and at another time placed a knife to her throat. The defendant testified that the victim awakened her on one occasion by holding a heated coke bottle top against her with a pair of pliers. The victim physically abused the child and once crushed a cigarette out on his daughter's forehead "to give her something to cry about."
The defendant testified that on the day before the fatal shooting, she awoke to see the victim on the couch with their daughter, who wore nothing but her shirt. He was on his knees with his penis erect. He held the child's legs apart. When he saw the defendant, the victim knocked her back on the bed and asked if she wanted to "live or die."
She testified that just before the shooting, the victim said A short time later, the victim said "I'm going to beat your ass and I'm going to make you watch and I'm going to beat you so much you're going to get to where you like it." He rubbed an open knife on the defendant's thighs.
The defendant contended that, at the moment she pulled the trigger, she was thinking of the safety of her child and expressed her belief that the victim intended to kill her.
The sufficiency of the evidence is not at issue.
The defendant initially contends that a statement she gave to a Sumner County Sheriff's Department detective was taken in violation of her fifth amendment right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She argues that, during an interrogation at her parent's house, she invoked her right to an attorney; she asserts that the investigating officer failed to honor that right at a subsequent custodial interrogation. After a pretrial hearing on the matter, the trial court overruled the motion to suppress on the basis that the defendant had voluntarily waived her previous request for counsel.
Shortly after noon on the day following the discovery of the corpse, Detective George Farmer of the Sumner County Sheriff's Department drove to Kentucky to interview the defendant at her parent's home. As they entered, the defendant said, "Tell me it's not true."
The detective asked the defendant's parents to leave the room while he and two other officers present spoke to the defendant. She was advised of her Miranda rights, and told a story similar to the one Mary Sue Scott had initially given authorities and then recanted. The officer told the defendant that Scott had been arrested after she gave a second statement implicating the defendant in her husband's murder. As Detective Farmer read Scott's statement, the defendant told him that her husband had threatened to sexually abuse her eleven year old sister. She implied that her husband was abusing their daughter. When she said that "maybe she ought to talk to an attorney," the detective immediately terminated the interview. He asked the defendant to meet him at the Sumner County Sheriff's Department around 3:00 P.M. that afternoon.
The defendant had her father drive her to this state, arrived at the sheriff's department at 2:45 P.M., and waited approximately 25 minutes before being taken into Detective Farmer's office. The detective re-advised her of her rights and she signed a waiver form. The defendant admitted using a rifle and a pistol to kill her husband. She told of burning his pants in a trash barrel at her house. She expressed her fear of her husband at the time of the shooting. She claimed that the victim attempted to have sex with his infant daughter.
It is apparent that from the time the defendant arrived at the sheriff's office she was in custody.
The trial court's relevant findings of fact were that the interview at defendant's parent's house was a non-custodial interrogation; when she invoked her right to counsel, the questioning stopped; the defendant voluntarily came to the sheriff's department with her father pursuant to the officer's request; and during the time between the detective's departure and defendant's arrival at the police station, the defendant had the opportunity to contact an attorney but chose not to do so. The trial court held that the defendant,...
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