State v. West

Decision Date23 November 1992
Citation844 S.W.2d 144
PartiesSTATE of Tennessee, Appellee, v. William WEST, Appellant.
CourtTennessee Supreme Court

J.H. Reneau, III, Celina, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Merrilyn Feirman, Asst. Atty. Gen., Nashville, Tom P. Thompson, Dist. Atty. Gen. and John Wootten, Asst. Dist. Atty. Gen., Hartsville, for appellee.

OPINION

DAUGHTREY, Justice.

With the passage of the Appellate Courts Improvements Act of 1992, the jurisdiction of this Court has become almost completely discretionary. 1 This means that as to non-capital criminal cases, we function primarily as a law-development court, rather than as an error-correction court. Occasionally, however, a criminal case comes to our attention in which the sufficiency of the evidence to sustain the conviction is seriously in doubt. This appeal is one of those troubling cases, and, thus, we granted review principally to scrutinize the proof offered to convict the defendant of first-degree murder. As noted below, we find that proof to be lacking, and it thus becomes necessary to reduce the conviction to second-degree murder.

In addition to sufficiency of the evidence, this appeal also raises questions involving the admissibility of certain character evidence; the propriety of the trial court's jury instruction on the inferences to be drawn from the concealment of evidence; and the validity of the sentencing procedure by which the defendant received a life sentence.

1. Factual Background

The record indicates that on the day of the murder, the victim, Sam Jones, was mowing weeds along the roadside when he came upon defendant William West, also on a tractor. No one else was present at their meeting. West testified that Jones insulted and threatened him, that West then went home briefly, and that upon his return Jones attacked him with an iron bar prompting West to get off of his tractor and shoot Jones in self-defense. The state presented the testimony of several passersby, one who testified to the victim's neighborliness in frequently mowing the roadside grass, and one who drove past the men and recalled seeing no weapon in the victim's hand. One young girl testified that she saw the two men on their tractors from her home. No other evidence was presented of events preceding the shooting.

The evidence of events after the shooting revealed that West waited an hour and a half before calling the police. Before the police arrived, West put his tractor and trailer away, went to the grocery store, and briefly visited a friend, all without mentioning the incident. After the police arrived and arrested him, West gave them permission to search the premises for the gun, and when they were unsuccessful in finding it, he eventually took them to the place where he had hidden it in some weeds.

The physical evidence was sparse. While in jail West was treated for a scrape on his arm that he claimed the victim had inflicted with the iron bar; however, a serologist found no blood on the bar. A medical examiner testified that a "distant gunshot wound" killed the victim and that the bullet traveled downward through the victim's chest and abdomen, an unlikely trajectory if West was shooting from the ground. Based on the above evidence, the jury convicted West of first degree murder.

2. Sufficiency of the Evidence

The defendant was convicted under the murder statutes in effect for acts committed before November 1, 1989. The law at that time defined murder generally as the "unlawful[ ] kill[ing of] any reasonable creature in being, and under the peace of the state, with malice aforethought, either express or implied ..." T.C.A. Sec. 39-2-201 (repealed 1989). Defendant was prosecuted for first-degree murder, defined in pertinent part as "[e]very murder perpetrated by ... willful, deliberate, malicious and premeditated killing." T.C.A. Sec. 39-2-202 (repealed 1989). Although malice, which is the intent to do any unlawful act that will likely result in taking the life of another, 2 is an essential element of any murder, the elements of premeditation and deliberation distinguish first-degree murder from all other types of homicide. As we recently noted in State v. Brown, 836 S.W.2d 530, 543 (Tenn.1992):

The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. The state bears the burden of proof on the issue of premeditation and deliberation sufficient to elevate the offense to first-degree murder. (Citations omitted.)

In this case, although ample evidence indicates that the defendant maliciously killed his victim, the state failed to produce any evidence that the intent to kill was premeditated and deliberate. The element of premeditation requires a previously formed design or intent to kill. McGill v. State, 4 Tenn.Crim.App. 710, 720, 475 S.W.2d 223, 227 (1971); Swan v. State, 23 Tenn. (4 Hum.) 136, 139 (1843). Deliberation, on the other hand, requires that the killing be done with a cool purpose--in other words, that the killer be free from the passions of the moment. See State v. Bullington, 532 S.W.2d 556, 559 (Tenn.1976); Winton v. State, 151 Tenn. 177, 191, 268 S.W. 633, 637 (1925). Moreover, as indicated in our recent opinion in State v. Brown, the fact that "premeditation can be formed in an instant" must be viewed in contrast to the element of deliberation, which obviously cannot be formed "instantaneously." While it remains true that no specific length of time is required for the formation of a cool, dispassionate intent to kill, Brown requires more than a "split-second" of reflection in order to satisfy the elements of premeditation and deliberation. Brown, 836 S.W.2d at 543. Without evidence that the killing was willful, malicious, premeditated, and deliberate, this Court cannot uphold a conviction for first degree murder. Everett v. State, 528 S.W.2d 25, 26 (Tenn.1975); Bass v. State, 191 Tenn. 259, 269, 231 S.W.2d 707, 711 (1950).

The prosecution maintains that it has adequately proven premeditation and deliberation for three reasons. First, the state asserts a theory that after arguing with the victim, West dispassionately returned to his house where he retrieved his gun for the specific purpose of killing the victim. While the state's theory may be true, it remains only a theory, because the prosecution has no evidence to support it. No one witnessed the defendant's retrieval of a gun, nor does any circumstantial evidence exist to support this theory. The defendant admitted to returning to his house, but insisted that he had carried his gun with him all morning. Thus, a jury would have to engage in pure speculation to conclude that the defendant had returned to his house in order to get a gun with which to shoot Jones. Although the jury is permitted to disbelieve the defendant's testimony, it may not construct a theory based on no evidence at all.

As additional evidence of premeditation, the state suggests that the defendant's calmness immediately following the shooting proves that the murder was premeditated. Calmness immediately after a killing may be evidence of a cool, dispassionate, premeditated murder. See State v. Browning, 666 S.W.2d 80, 84 (Tenn.Crim.App.1983); Sneed v. State, 546 S.W.2d 254, 258 (Tenn.Crim.App.1976). In this case, however, no evidence exists of the defendant's demeanor immediately after the killing, except his own testimony that he was upset. Although the defendant waited an hour and a half to report the shooting and put his tractor and trailer in the barn before calling the police, there is no evidence concerning his emotional state during this time. Furthermore, the fact that he briefly went to the store and to see a friend without describing the incident does not prove premeditation. One who has recently killed another person recklessly, passionately, or even negligently may be extremely hesitant to reveal the details of the crime, and yet not be guilty of first degree murder. Thus, while the defendant's behavior manifests such indifference to the victim and fear of detection that the jury might discredit his self-defense story, West's failure to report the shooting to the police fails to establish premeditation and deliberation in advance of the murder.

Finally, the state claims that West's concealment of the gun is proof of premeditation. Again, we disagree. The court in Cagle v. State, 507 S.W.2d 121, 129 (Tenn.Crim.App.1973), held that the concealment of evidence may itself be evidence of guilt. See also State v. Cate, 746 S.W.2d 727, 729 (Tenn.Crim.App.1987); Sotka v. State, 503 S.W.2d 212, 220 (Tenn.Crim.App.1972). The concealment of evidence, however, may be associated with the commission of any crime and the accompanying fear of punishment. One who kills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool, dispassionate killer. The fact that evidence is subsequently hidden from the police reveals nothing about a criminal's state of mind before the crime. Thus, while the concealment of evidence discredits defendant's self-defense excuse, it does not provide evidence of premeditation. Cagle simply permits the concealment of evidence to be used as evidence of the commission of a crime generally; it does not prove the specific element of premeditation.

The state offers no other evidence of defendant's commission of a deliberate and premeditated murder. On these facts, we cannot uphold a conviction for first degree murder. As previously noted, in the absence of proof of deliberation and premeditation, an unlawful killing is presumed to be second degree murder. State v. Brown, 836 S.W.2d at 543, State v. Bullington, 532 S.W.2d 556, 560 (Tenn.1976). There is however, ample evidence in the record to establish that the defendant maliciously shot and killed Sam Jones, without adequate provocation. Thus, in reversing the conviction for first-degree...

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