State v. Ruane

Citation912 S.W.2d 766
PartiesSTATE of Tennessee, Appellee, v. Donald Joseph RUANE, Appellant.
Decision Date14 July 1995
CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Jeffrey A. DeVasher, Senior Asst. Public Defender (On appeal) and David M. Siegel, Senior Asst. Public Defender (At trial), Nashville, for Appellant.

Charles W. Burson, Attorney General and Reporter, Charlette Reed Chambers, Assistant Attorney General, Rosemary Sexton and Cheryl Blackburn, Asst. District Attorney Generals, Nashville, for Appellee.

OPINION

WADE, Judge.

The defendant, Donald Joseph Ruane, was convicted of second degree murder and sentenced to twenty-five (25) years the Department of Correction as a Range I Offender. Tenn.Code Ann. §§ 39-13-210 and 40-35-112.

In this appeal, the defendant presents the following issues for review:

(1) whether the trial court erred by denying the defendant's motion to dismiss the indictment;

(2) whether the trial court erred by excluding testimony of prior statements by the victim;

(3) whether the trial court erred by excluding evidence of a prior violent act by the victim;

(4) whether the trial court erred by failing to instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter; and

(5) whether the trial court erred by imposing the maximum sentence.

Because we find that the trial court committed reversible error, the judgment of the trial court is reversed and the cause is remanded for a new trial.

At approximately 10:30 P.M. on May 3, 1992, the defendant shot the victim, Donald Willis, at Marcy's, a Nashville bar. The bullet severed the victim's spinal column in the neck area and caused instant paralysis. Although the victim went into full cardiac arrest, firefighters and paramedics were able to revive him and then transport him to Vanderbilt Hospital. Thereafter, the victim was able to breathe only with the assistance of a ventilator. He could communicate by nods or eye movement. The victim's condition was such that he could not live without artificial life-support and he soon expressed a strong desire to discontinue use of the ventilator. The life support was terminated by court order on May 13, 1992. The victim died 10 to 15 minutes later.

Raynaldo Martine, a member of the band which played at Marcy's, testified for the state. He recalled "seeing [the defendant] walking rather briskly, with something at his side." He said the defendant walked up to another man sitting at the bar, put something right up to the back of his head and shot. Martine testified that the victim had his back to the defendant and that no words had been exchanged. Within moments of the shooting, the defendant left. Martine stated that he followed the defendant out to the parking lot and watched him get into a car; he got the defendant's license number and attempted to follow on foot. Martine related that he lost sight of the car briefly but relocated it at Priest Lake Apartments. Martine then returned to Marcy's, waited for the police, and led them to the car. When the police brought the defendant out of the apartments, Martine made a positive identification.

Cynthia Kelley testified that she and the victim had been together since about 7:30 P.M. on the night of the shooting and had arrived at Marcy's at around 10:30 P.M. She stated that after taking a seat at the bar, the victim handed her his truck keys and said, "[T]here may be trouble." The next thing she remembered was hearing the gunshot and seeing the victim fall to the floor. As she turned, she saw the defendant "nonchalantly, just [walk] out of the building."

Officer Phillip Meador testified that two members of the band had seen the assailant leave in an "older model green car"; they had taken down the tag number of the vehicle and followed it to an apartment building. Although there was a slight difference in the license number, officers found the car where the witnesses said it would be. Officer Meador stayed at the apartments and watched the car until other officers arrived.

The defendant lived with his parents. After gaining consent to enter the apartment from the parents, Detective David Miller and three uniformed officers arrested the defendant. They found him undressed and lying in bed with his eyes shut. The defendant, who did not appear to be surprised, did not seem to be intoxicated and consented to searches of his apartment and his car. Although a .25 caliber shell casing had been found at the scene, the officer did not find a .25 caliber weapon at the residence. The defendant did, however, tell Detective Miller that "he was just paying [the victim] back for several scores and that [he] deserved everything he got and more." The defendant admitted he always carried a gun. He claimed that the victim was "forever picking on him."

George R. Devine, Jr., testified that he arrived at Marcy's between 8:30 and 9:00 P.M., sat at the bar, and became acquainted with the victim. Later, Devine saw a man enter Marcy's and stand at the planter box behind the victim for a couple of minutes. As the band started to play, Devine heard a "loud bang," turned, and saw the same man with his hand near the victim's head. The victim then fell to the floor. Devine provided a physical description of the assailant that matched that of the defendant.

Donna Gibbs was a waitress at Betty Lou's Bar and Grill next door to Marcy's. She testified that she had seen the defendant at 6:00 P.M. on the day of the shooting and that he was intoxicated; he left within fifteen minutes of her arrival. She further testified that the defendant returned at about 10:00 P.M. and told another patron, Jack Pelty, that the victim "was next door, and that he was going to go f___ [him] up." The defendant then left. Within minutes, Ms. Gibbs heard a shot, looked outside, and saw the defendant leave with Jack Pelty.

Betty Jean Pursley, who was also at Marcy's on the night of the shooting, testified the defendant had come in the bar and offered to buy everyone a beer; that included the victim. When another man offered to buy the defendant a beer however, the defendant declined and left the bar. About thirty minutes later, the defendant returned and walked straight toward the victim. Although Ms. Pursley never saw a gun, she did hear a loud noise and then saw the defendant walk out of the bar.

Michael Herrod, the defendant's stepbrother, testified that on the day after the shooting, the defendant told him where to find the gun used to shoot the victim. Herrod found the weapon in some brush near the defendant's apartment, placed it in a bag, and turned it over to the police. Don Carman, a firearms expert with the Tennessee Bureau of Investigations Crime Lab, testified that the cartridge case found at Marcy's matched one taken from the gun.

Dr. Noel Tulipan testified that when the victim was admitted to Vanderbilt Hospital, he was in a coma, unresponsive to any stimuli to his legs or arms, and unable to breath without the assistance of a ventilator. Within 24 to 48 hours, however, the victim was "wide awake" and able to communicate through nods, with eye movement, and by mouthing words. The gunshot had caused a "devastating injury to [the] spinal cord" and the victim was told that he could not regain movement in his arms or legs and would not be able to breathe without the continuous assistance of a ventilator.

Upon learning of his condition, the victim told the hospital staff that he wanted to be taken off of the life-support equipment. Once doctors determined that he was mentally competent to make such a decision, the hospital received court approval to turn the ventilator off. Ten to fifteen minutes after he was removed from life support, the victim died.

Dr. Tulipan testified that there were often complications, such as pneumonia, which affected patients on ventilators. By the time of his death, the victim had already suffered a mild case of pneumonia. Dr. Tulipan also testified that there was a reasonable probability that the victim would still be alive had he stayed on life support.

Dr. Charles Warren Harlan, Chief Medical Examiner for the State of Tennessee, performed the autopsy. He listed the cause of death as a gunshot wound to the neck which had cut the spinal cord in half. It was his opinion that the gun was within two to six inches of the victim when fired. He confirmed that the victim had a fairly high blood-alcohol level at the time of the shooting.

The defendant, claiming self-defense, testified in his own behalf. He related that he had served in the Navy for two years and had worked in concrete construction until being shot in 1969. The defendant claimed that he had been disabled by a combination of the gunshot wound and a subsequent leg injury; as a result, he worked only on a part-time basis. The defendant explained that he carried a weapon because of the prior shooting incident. He testified that because the victim had assaulted and threatened him on several occasions since Thanksgiving of 1990, he was afraid of the victim and tried to avoid him. He said that on the day of the shooting he had been drinking all day while he worked on cars. He said that he continued to drink at Marcy's and bought a round of drinks after the victim arrived. The defendant explained that he went next door to Betty Lou's for a time and did not return until after he thought the victim might have left. After ordering a beer, however, he saw the victim, feared that he was "coming at him," and shot him. The defendant claimed that he returned to his residence to wait for the police.

Debbie Wilkerson and Vincent Rowe confirmed that the victim had assaulted the defendant in December of 1990. Each stated that the defendant had been knocked across the room and while lying on the floor, had been struck several times with a bar stool. Each testified that the defendant never struck back. Rowe helped pull the victim off the defendant, who had been beaten...

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