State v. Goodman

• Decision Date: 31 August 1982
• Citation: 643 S.W.2d 375
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee, Appellee, v. Paul Silas GOODMAN, Appellant.

Page 375

643 S.W.2d 375

STATE of Tennessee, Appellee, v. Paul Silas GOODMAN, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Aug. 31, 1982.

Permission to Appeal Denied by

Supreme Court Nov. 22, 1982.

Robert T. Beaty, Bruce A. Butler, Sexton, Sexton, Beaty & Seals, Oneida, for appellant.

William M. Leech, Jr., Atty. Gen., Steven A. Hart, Asst. Atty. Gen., Nashville, William Paul Phillips, Dist. Atty. Gen., Clifton H. Sexton, Asst. Dist. Atty. Gen., Huntsville, for appellee.

OPINION

SCOTT, Judge.

Indicted for murder in the first degree, the jury found the appellant guilty of murder in the second degree and sentenced him to twenty-five years in the state penitentiary. Much aggrieved by the verdict, the appellant has presented seven issues on appeal, some of which have subissues.

In the first issue the appellant contends that the trial judge improperly allowed amendment of the indictment. The original indictment in this case charged the appellant as follows:

The Grand Jurors for the State of Tennessee, duly elected, impaneled, sworn and charged to inquire in and for the body for the County of Scott in the State of Tennessee, upon their oath present: That Paul Silas Goodman prior to the finding of this indictment, on or about September 22, 1976, in the County and State aforesaid with hands, objects and fire, did unlawfully, feloniously, willingly, premeditatedly, and with malice aforethought, kill and burn one Alene Burress and commit murder in the first degree, against the peace and dignity of the State of Tennessee.

The state filed a motion to amend the indictment to add the word "deliberately" so that the indictment would allege that the appellant "did unlawfully, feloniously, deliberately, willfully, premeditatedly, and with malicious aforethought" kill Alene Burress.

Rule 7(b), T.R.Cr.P., provides that an indictment may be amended without the defendant's consent and before jeopardy attaches if "no additional or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced".

The addition of the word "deliberately" did not charge a different offense. As originally drawn, the indictment referred to the offense as "murder in the first degree" evidencing the grand jury's intent to charge the appellant with that offense.

Further, the appellant has failed to demonstrate any prejudice from the amendment. The motion to amend was filed over four months before trial, giving the appellant ample time to prepare his defense. In addition, the appellant was convicted of murder in the second degree rather than the more serious offense. Hence, there clearly was no prejudice to him. This issue has no merit.

In the next issue the appellant contends that the trial judge erred in granting the state's motion for a continuance on May 27, 1980, and by disallowing his motion for a reduction in bail made that same day.

May 27, 1980 was the original date set for the trial of this case. The state claimed that although subpoenaed, a material, indeed critical, witness failed to appear. According to the state's affidavit, the witness, Rueben West, would testify (and later did testify) that the appellant bragged to him about having sexual relations with the deceased, and told Mr. West that he killed her "because she was going to tell on him for having sex with her". It can hardly be questioned that such testimony was relevant and material to the presentation of this circumstantial evidence case.

The appellant argues that the testimony was cumulative to that of Patsy Stanley who also testified that the appellant told her that he had killed "that Burress woman".

The granting of a continuance is a matter resting within the sound discretion of the trial judge. Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966). His exercise of that discretion will not be disturbed absent a clear showing of prejudice to the defendant. The burden rests upon the party seeking the continuance to show how the court's action was prejudicial. The only test is whether the defendant has been deprived of his rights and an injustice done. A reversal will be ordered only if the reviewing court is convinced that the complaining party did not have a fair trial and a different result would or might reasonably have been reached had there been a different disposition of the motion. (emphasis added) Baxter v. State, 503 S.W.2d 226, 228 (Tenn.Cr.App.1973), citing Higgins and Crownover, Tennessee Procedure in Law Cases, Sec. 885.

While the testimony of Mr. West was cumulative to that of Ms. Stanley to the extent that the appellant confessed the murder to each, his testimony went far beyond Ms. Stanley's in that it explained the sexual motive for this gruesome murder. The trial judge did not abuse his discretion in granting the motion for a continuance. Our review of the record reveals that the appellant received a fair trial. While the appellant might have been acquitted had this damning proof not been introduced, such a result would not have been just. The trial of criminal cases is not a game, but a serious quest for truth about matters of grave importance to our society. Justice is the ultimate goal of every judicial proceeding. This issue has no merit.

The second aspect of this issue concerning the disallowance of the appellant's motion for reduction in bail is not preserved in the record and is not briefed. Therefore, this issue was waived. Rule 24(a) and (b), T.R.A.P., Rule 27(a)(7), T.R.A.P.

The appellant next complains about the state's failure to comply with his discovery motion under Rule 16, T.R.Cr.P. Six subissues are set forth under this issue. He complains that the state failed to allow discovery within the time frame set by order of the court; failed to furnish transcripts of interviews with Ethel Buttram; and failed to permit defense counsel to inspect and copy results of tests conducted by the Federal Bureau of Investigation Laboratory. According to the appellant, the court erred in allowing Allen T. Robillard, an F.B.I. agent, to testify over the appellant's objection, and erred in denying a mistrial after he testified. The appellant contends that he was denied a fair trial due to a deliberate pattern of conduct of the District Attorney General to conceal witnesses and evidence from defense counsel to prevent discovery of material evidence in this case. He contends that the court erred in allowing the state to call witnesses who were listed and subpoenaed after May 25, 1980, and particularly after May 27, 1980. The appellant complains that the autopsy report prepared by Dr. Francis Jones was not given to defense counsel until four days prior to the original trial date; that the written report of Dr. David Icove of the State Fire Marshal's Office was tendered on the original trial date; and that the report of Mr. Robillard was given to defense counsel on the second day of trial.

By affidavit of the District Attorney General, the state claims that it had no knowledge that an autopsy had been performed on the deceased until shortly before May 23, 1980. However, on the day the body was discovered an order for an autopsy was signed by the District Attorney General, who participated in the trial of the case. When contacted by the state, Dr. Jones stated that his report had been dictated but had never been typed. At the request of the prosecution, the report was typed and distributed to defense counsel soon thereafter. This all occurred near the original trial date, but the case was continued and did not actually go to trial until July 15, 1980. Although the state clearly was not diligent in getting the autopsy report to defense counsel, the appellant was shown no prejudice from the failure to provide him the report until May 1980.

Likewise, the state claims it was unaware that Dr. Icove had prepared a written report of his findings until shortly before May 27, 1980, when the appellant was furnished his copy. Dr. Icove was an investigator for a state agency. His report was a report of a scientific test material to the defense, which was in the "possession, custody or control of the state", and its existence was known or by the exercise of due diligence may have become known to the District Attorney General. Rule 16(a)(1)(D), T.R.Cr.P. But, the appellant has shown no prejudice from having access to Dr. Icove's report for only a month and a half before trial.

Mr. Robillard's report was a fiber and hair analysis and was not given to the appellant until the second day of trial. This appears to be an apparent flaunting of the discovery rule. However, even this can be explained. According to the District Attorney General's affidavit, there was a discovery conference at which all laboratory reports which the state then had were given to the appellant. One F.B.I. examiner, a Mr. Wallace, had a heart attack and thus became unable to testify. The evidence was then re-examined by Mr. Robillard whose name was furnished to defense counsel. His report did not become available until he came from Washington, D.C. for the trial. The state then furnished his report to the appellant's counsel. Apparently, Mr. Wallace's report was given to defense counsel at the discovery conference.

Rule 16(a)(1)(D), T.R.Cr.P. provides:

Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.

The state provided the autopsy report and Dr. Icove's report in ample time for the appellant to prepare for trial. There was no error in regard to these...