State v. Summerall

• Decision Date: 28 December 1995
• Citation: 926 S.W.2d 272
• Parties: STATE of Tennessee, Appellee, v. Ronald SUMMERALL, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 272

926 S.W.2d 272

STATE of Tennessee, Appellee, v. Ronald SUMMERALL, Appellant.

Court of Criminal Appeals of Tennessee at Jackson.

Dec. 28, 1995.

W. Mark Ward (on appeal) (A.C. Wharton, Shelby County Public Defender, of counsel) Carolyn Watkins, and Ronald Johnson (at trial), Asst. Public Defenders, Memphis, for Appellant.

Charles W. Burson, Attorney General and Reporter, Cecil H. Ross, Assistant Attorney General, Nashville, John W. Campbell, and Phillip Gerald Harris, Asst. District Attorneys General, Memphis, for Appellee.

OPINION

WADE, Judge.

The defendant, Ronald Summerall, indicted for first degree murder, was found guilty of second degree murder. The trial court imposed a Range II sentence of forty years and ordered the term to be served consecutively to a sentence in an unrelated conviction.

In this appeal, the defendant challenges the sufficiency of the evidence and presents the following additional issues for our review:

(1) whether the trial court erred by allowing the state to impeach the defendant based upon an unnamed prior felony conviction;

(2) whether the trial court erred by allowing Officer Kirby Brewer to testify to hearsay statements by the victim pursuant to Tenn.R.Evid. 803(2); and

(3) whether the trial court erred by failing to instruct the jury on voluntary manslaughter.

Because the trial court failed to charge the lesser included offense of voluntary manslaughter, the judgment must be reversed. A new trial is ordered.

On October 27, 1992, the defendant had a fight with Elbert Tate and Tate's brother. As Elbert Tate walked down a street at about 5:00 P.M. on the following day, he saw the defendant at the side of a building "cocking a gun back, and ... saying something like 'I'm going to get you.' " Tate then saw the victim, Bobby Richmond, and they walked together for a short distance until Tate went into an alley to check on something to do with his car. When Tate returned to the street, he heard several shots, one of which struck the victim in the back. The victim then turned to Tate and said that "he seen Cocaine (a nickname for the defendant) and saw him shoot." Tate, who testified that he was unarmed, and the victim fled in different directions.

Officer Kirby S. Brewer, a patrolman with the Memphis Police Department, found the conscious victim lying face down. When he asked who had shot him, the victim initially claimed that he did not know but then repeatedly alleged that "Cocaine did it."

J.A. Wilburn, a sergeant with the Memphis Police Department, testified that the defendant called his office the day after the shooting and asked if the police needed to talk to him. When Wilburn said yes, the defendant indicated that he would turn himself in but failed to do so. About a week after the shooting, Patrol Officers R.D. Burton and B.G. Winston went to a local residence in an attempt to locate and arrest the defendant. When they arrived, the defendant fled through a window. The officers chased the defendant about four blocks and eventually caught him hiding behind a parked vehicle in the carport of a residence.

Sergeant Wilburn testified that the defendant admitted that he had shot the victim; the defendant claimed that Tate and Tate's brother had beaten him up the day before the shooting. The defendant contended that he had tried to shoot Tate and had mistakenly struck the victim instead. Sergeant Wilburn testified that the defendant never claimed that either the victim or Tate were armed or that he was afraid at the time of the shooting.

Doctor O'Brian Cleary Smith, a medical examiner with the Shelby County Medical Examiner's Office, performed the autopsy. He testified that the victim had received a gunshot wound to the back of his left shoulder and that the bullet had passed through three major veins. The victim died from the loss of blood.

The defendant testified in his own defense. He denied having made any statement to the police but admitted having fought with Tate the day before the shooting. The defendant claimed he had been beaten up by Tate.

The defendant testified that he had been playing basketball and was sitting on some steps eating when he heard gunshots. When he looked up, he saw Tate running toward him firing a weapon. The defendant stated that six or seven shots had been fired before he reacted by grabbing his own gun and firing one shot as he fled the scene. The defendant testified that he saw no one other than Tate and did not realize he had hit anyone.

The defendant denied that his nickname was "Cocaine." He admitted, however, that he had called the police, had failed to turn himself in, and had fled when the police had attempted to make an arrest.

When the defendant challenges the sufficiency of the evidence on appeal, the state is entitled to the strongest legitimate view of the trial testimony and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App.1978). The relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); Tenn.R.App.P. 13(e). A crime may also be established by the use of circumstantial evidence only. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.1987); Marable v. State, 203 Tenn. 440, 451-52, 313 S.W.2d 451, 457 (1958).

Second degree murder is defined as a "knowing killing of another." Tenn.Code Ann. § 39-13-210.

"Knowing" refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.

Tenn.Code Ann. § 39-11-302(b).

The defendant acknowledged that he had fired the fatal shot. Before his death, the victim identified "Cocaine" as his assailant. Tate confirmed that the defendant bore the nickname "Cocaine" and testified that the defendant had threatened him shortly before the victim was shot. The state presented testimony that both Tate and the victim were unarmed. That the defendant fired at Tate rather than the victim has no legal effect. The doctrine of transferred intent would apply. See State v. George Henry, No. 02C01-9212-CR-00266, 1993 WL 414010 (Tenn.Crim.App., at Jackson, October 20, 1993), perm. to app. denied, (Tenn.1994). That the jury chose to accredit the testimony of the prosecution witnesses and reject that of the defense witnesses is within their prerogative. A rational trier of fact could have found the essential elements of the crime of second degree murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

I

The defendant next claims that the trial court erred by allowing the state to impeach the defendant's credibility with an unnamed prior felony conviction. ¹ He complains that this allowed the jury to engage in unwarranted speculation about the specific nature of the felony.

Originally, the defendant had objected to the state's use of a prior second degree murder conviction for impeachment purposes. The defendant claimed that its prejudicial effect outweighed its probative value under the terms of Tenn.R.Evid. 609(a)(3). Although the trial court initially agreed to exclude the prior conviction, it ultimately permitted the state to introduce the prior felony for the sole purpose of impeachment but on the condition that the specific nature of the felony remain undisclosed.

During the cross-examination of the defendant, the state was allowed to ask the following questions:

Q: Now, are you the same Ronald Summerall who was convicted in Indictment number 85-05729 of the offense of attempted felony?

A: Yes.

Q: That was in December of 1985; is that correct?

A: Yes.

Q: Are you the same Ronald Summerall who was convicted in Indictment number 89-06732, February 23, 1990, for a felony?

A: Yes.

Q: You are the same person?

A: Yes.

No other questions pertained to the defendant's prior record.

The Tennessee Rules of Evidence provide that a judgment of conviction may be used by the state to generally impeach the testimony of the defendant. See State v. Morgan, 541 S.W.2d 385 (Tenn.1976). Tennessee Rules of Evidence 609(a)(2) and (3) specifically provide as follows:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:

* * * * * *

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

(Emphasis added); see State v. Farmer, 841 S.W.2d 837, 839 (...