State v. Smith

• Decision Date: 12 August 1985
• Parties: STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant. 695 S.W.2d 954
• Court: Tennessee Supreme Court

Page 954

695 S.W.2d 954

STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant.

695 S.W.2d 954

Supreme Court of Tennessee at Jackson.

Aug. 12, 1985.

James V. Ball, Arch B. Boyd, III, Memphis, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., for appellee.

OPINION

HARBISON, Justice.

Appellant was convicted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence.

In the late afternoon of April 21, 1982, appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was at that time not quite 23 years of age. He and two other youths had been "cruising" in an automobile belonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. Leaving his aunt's parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellant returned to the automobile as did the only one of his companions who had left it. The other had remained in the driver's seat. The three were seen leaving the area at a high speed. A witness was able to furnish some description of appellant and the 15-year-old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on the license plate. The automobile was discovered by police the next day and identified as belonging to appellant's aunt.

It was not until November, some seven months later, in connection with an unrelated criminal incident, that police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant a few days later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and killed Mr. Allen but contending that the shooting was accidental, rather than intentional.

The 15-year-old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. He later indicated to another relative that Lipscomb could have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted robbery was appellant's own idea. He also testified that he had left the automobile after appellant, and that appellant accosted Mr. Allen some distance away. Lipscomb denied being present at the shooting, but testified that he heard two shots. He said that appellant then came running back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then shot him twice. Appellant was taller than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw the youths running from the area where Mr. Allen had fallen.

Appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury-out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb and to the police that he had shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Ella Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of Lipscomb and appellant's statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support their verdict, and appellant's attack upon the sufficiency of the convicting evidence is without merit.

Similarly without substance is the contention of appellant that the State's evidence fails to show premeditation and malice. Murder in the first degree is defined in T.C.A. Sec. 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S.W.2d 854, 860-861 (Tenn.1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn.Crim.App.1975). In this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from "killing" to "murder" by 1977 Tenn.Pub.Acts ch. 51, Sec. 1, had the effect of abolishing the felony-murder rule. We do not so construe the statute and did not do so in Johnson, supra, in which the homicide occurred in 1980.

Appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. The trial judge, however, held a full pre-trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. As previously indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen's death and would so inform the police.

At the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's statement contains the words "aggravated assault" rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen was being investigated. We find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr. Allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges.

In his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the Tennessee statute authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this Court. We therefore see no need to examine these assignments in detail but will briefly mention some of them.

Appellant insists that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the State. This contention was rejected in Houston v. State, 593 S.W.2d 267 (Tenn.1980), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. Further, Rule 12.3(b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. Also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S.W.2d 738, 742 (Tenn.1981).

Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat those discussions here. Appellant has advanced a five-part challenge to the felony-murder rule in cases involving murder in the first degree. These contentions were considered in State v. Sheffield, 676 S.W.2d 542, 551 (Tenn.1984), where identical arguments were considered and rejected. Many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or...