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concluding that review was improvidently granted in part
Summary of this case from State v. SimicOpinion
C.C.A. No. 02C01-9708-CR-00309.
August 14, 1998.
SHELBY COUNTY HON.W. FRED AXLEY, JUDGE (INTERLOCUTORY APPEAL)
AFFIRMED
FOR THE APPELLANT:
W. MARK WARD GARLAND ERGUDEN
FOR THE APPELLEE:
JOHN KNOX WALKUP Attorney General Reporter PETER M. COUGHLAN Assistant Attorney General JOHN W. PIEROTTI District Attorney General JOHNNY R. McFARLAND Assistant District Attorney General
OPINION
The Appellant, Brian J. Hunter, appeals by permission pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Appellant was indicted for second degree murder and was tried by a jury in the Shelby County Criminal Court. At the end of the State's proof, the Appellant moved for a judgment of acquittal which was overruled by the trial court. Following the conclusion of the evidence, the trial court, over the objection of Appellant, charged the jury on the lesser grade offense of voluntary manslaughter. The State did not request the trial court to charge the lesser grade offense of voluntary manslaughter. The jury was ultimately unable to reach a verdict. When polled, the jury stated that they found Appellant not guilty of second degree murder, but were unable to reach a verdict as to whether he was guilty of voluntary manslaughter. The trial court declared a mistrial on the voluntary manslaughter charge.
The State was prepared to retry Appellant on the voluntary manslaughter charge, however, Appellant filed a Motion to Dismiss the indictment. Appellant argued the following three issues in his Motion to Dismiss: (1) the trial court erred in charging voluntary manslaughter; (2) the trial court erred in charging a lesser grade offense since Appellant waived the right to charge lesser grade offenses; and (3) a re-trial on the lesser grade offense of voluntary manslaughter would constitute double jeopardy. After taking Appellant's motion under advisement, the trial court, in a written order with findings of fact and conclusions of law, denied the motion.
Appellant subsequently filed a Motion to Reconsider Dismissal Based on Double Jeopardy and/or Motion for Interlocutory Appeal. After taking that motion under advisement, the trial court denied Appellant's Motion to Reconsider Dismissal but granted Appellant's Motion for Interlocutory Appeal. This Court subsequently granted Appellant's application for an interlocutory appeal by order entered September 16, 1997.
In Appellant's Designation as to Appellate Record, Appellant states that "the only issue to be raised on appeal is whether double jeopardy prevents the retrial of the [Appellant] for the lesser [grade] offense of voluntary manslaughter." However, Appellant goes on to say that "[i]ncident to this inquiry, [Appellant] will challenge the sufficiency of the evidence presented at the first trial to support voluntary manslaughter and whether the trial judge was obligated to and erred in instructing the jury as to voluntary manslaughter."
An appeal is appropriate under Rule 9 of the Tennessee Rules of Appellate Procedure if the appellant will suffer "irreparable injury," if there will otherwise be "needless, expensive and protracted litigation," and if there is a "need to develop a uniform body of law." Although permission to appeal was granted by this Court pursuant to Rule 9, we are of the opinion that it was improvidently granted in part. After reviewing the issues presented by Appellant, we will not address the issue pertaining to the trial court charging the lesser grade offense of voluntary manslaughter. Issues relating solely to prior proceedings such as evidentiary rulings, jury charges, and arguments by counsel, are generally not appropriate for appellate review under Rule 9. Since there is no conviction for voluntary manslaughter in the instant case, Appellant cannot appeal this type issue by way of interlocutory appeal. In other words, the trial court's charge on voluntary manslaughter is not presently an issue in the pending case before us, and we therefore decline to address it.
As to the sufficiency of the evidence of the voluntary manslaughter charge, we find that the evidence was not insufficient as a matter of law to support a conviction for voluntary manslaughter. We will briefly summarize the facts in this case for the purposes of our review. The Appellant and the victim, Bill Herrington, were neighbors in an East Memphis apartment complex. On September 14, 1994, Ford Beach was living with the Appellant, and Beach arrived at the apartment between 5:00 and 5:30 p.m. Herrington, Appellant, and another friend, Steve Fortini, were already there drinking and talking. Late that afternoon, there was a scuffle between Herrington and the Appellant in the kitchen. Herrington and the Appellant then visited Herrington's apartment and again became involved in a heated argument, during which Herrington's wife told Appellant to go home after their pushing and shoving caused wine to be spilled.
That same evening, after Herrington had eaten dinner and taken a nap, he returned to the Appellant's apartment after Beach had gone to sleep on the couch. Upon entering the apartment, Herrington told Beach that he wanted to "straighten things out" with the Appellant. Appellant and Herrington went back into the Appellant's bedroom so that Beach could sleep. Beach heard nothing further from the bedroom until he was awakened by the "click, clock" noise of an automatic pistol being "racked." Beach heard three shots in rapid succession as he ran out of the apartment.
Appellant described Herrington that evening as "hostile and irate," angry that Appellant had possibly told a secret entrusted to him by Herrington and angry regarding Appellant's lack of concern over his medical condition. During their discussion in the bedroom, Appellant excused himself to use the bathroom. When he returned, he saw Herrington holding a Beretta which Appellant kept underneath his bed. While the gun was aimed away from the Appellant, Herrington was describing his "perfect plan" to kill the Appellant. Herrington stuck the gun against Appellant's ear and threatened his life. After Appellant begged for his life, Herrington dropped the gun into Appellant's lap and leaned back against the bed. When Appellant tried to put the gun away on top of the desk, Herrington said, "Someone is going to die tonight," and a struggle ensued. Three shots were fired in succession during this struggle, then the Appellant ran to call 911 and stayed there until the police arrived.
Voluntary manslaughter is the unlawful and intentional or knowing killing of a victim as a result of a state of passion produced by adequate provocation. Tenn. Code Ann. § 39-13-211. It is clear from the evidence presented that a rational trier of fact could have found Appellant guilty of voluntary manslaughter. As a side note, it can then be said that the trial court did not err by charging voluntary manslaughter.
We will now address the merits of whether double jeopardy prohibits retrial for voluntary manslaughter when the jury acquitted the Appellant of second degree murder. Over objection by Appellant's trial counsel, the trial court charged the jury on voluntary manslaughter in addition to second degree murder. While the trial court stated upon the record he believed the Appellant to be guilty of murder in the second degree or nothing else, he held that State v. Summerall, 926 S.W.2d 272, 278-79 (Tenn.Crim.App. 1995), required the trial court to instruct the jury on the charge of voluntary manslaughter based upon the evidence. Appellant argues that by virtue of the jury's verdict of not guilty as to second degree murder, the jury rejected at least one of the essential elements necessary to support a finding of guilt as to voluntary manslaughter.
Second degree murder is the unlawful and knowing killing of the victim. Tenn. Code Ann. § 39-13-210. As mentioned previously, voluntary manslaughter is the unlawful and intentional or knowing killing of a victim as a result of a state of passion produced by adequate provocation. Tenn. Code Ann. § 39-13-211. Appellant argues that the case of Whitwell v. State, 520 S.W.2d 338 (Tenn. 1975) is controlling. In Whitwell, the defendants were indicted and tried for the grand larceny of cattle and receiving and concealing stolen property. Defendants were acquitted by the jury of grand larceny and the jury expressly determined that the defendants did not know that they were stealing the cattle. The jury was unable to reach a verdict on the charges of receiving and concealing stolen property or the lesser charges of petit larceny. A mistrial was declared by the trial court. The defendants appealed on the basis that the jury's verdict nullified the criminal intent element essential for their conviction and, therefore, double jeopardy principles would be violated if they were retried. The Tennessee Supreme Court held that "the jury's finding a lack of intent to steal clearly exonerates defendants of an essential element of petit larceny," and remanded the case to the trial court to dismiss all charges. Id. at 344.
Appellant's case differs from that of Whitwell in that the only difference in the elements of the offenses of grand and petit larceny at that time was the monetary amount of property taken by the defendants. There is not a separate element as there is in the case sub judice. As the State correctly points out in its brief, the jury could have found that both elements of second degree murder were met and still acquit of second degree murder, so long as the jury found the Appellant acted in a state of passion produced by adequate provocation. This additional element of passion produced by adequate provocation reduces second degree murder to voluntary manslaughter, even though all elements of second degree murder have been met. Also, Appellant justified his actions as self-defense at trial. Self-defense implies Appellant had at least a "knowing" mental state in order to commit a killing of another human being. The verdict of acquittal as to second degree murder in this case does not mandate a finding that the jury determined the element of a "knowing" killing to be absent.
A more recent case distinguishes Whitwell and holds that "the double jeopardy clauses of the state and federal constitutions do not preclude retrial of a defendant after a mistrial was declared at an earlier trial because the jury could not reach a verdict on defendant's guilt of lesser offenses included in the crime for which he was indicted." State v. Seagroves, 691 S.W.2d 537, 541 (Tenn. 1985). The court pointed out in Seagroves that the defendant in Whitwell was either guilty of the greater offense of no offense at all. Such is not the true in the case sub judice. Accordingly, we find no violation of Appellant's constitutional rights against double jeopardy.
We affirm the judgment of the trial court.
____________________________________
THOMAS T. WOODALL, Judge
CONCUR: ___________________________________ JOHN H. PEAY, Judge ___________________________________ DAVID G. HAYES, Judge
Because I find that an instruction on the lesser grade offense of voluntary manslaughter was not warranted by the proof presented at trial, I am unable to join with the majority's conclusion. Accordingly, I would reverse and remand for dismissal of the indictment.
Although the majority concludes, absent any lesser offense analysis, that the evidence is sufficient to support a conviction for voluntary manslaughter, I find such a review crucial in order to resolve the ultimate issue presently before this court. A trial court has the duty, in criminal cases, to fully instruct the jury on the general principles of law relevant to the issues raised by the evidence. This obligation includes giving instructions on lesser offenses included in the indictment, without any request on the part of the defendant. See Tenn. Code Ann. § 40-18-110(a) (1990). Nonetheless, it remains a principle well-established in the law of this state that, where there is no proof in the record to support an instruction on a lesser offense, no jury instruction on the same need be submitted. Elder, No. 03C01-9702-CR-00053 (citing Trusty, 919 S.W.2d at 311). See also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973) (holding that there is no constitutional right to a jury instruction on a lesser offense in every case). Thus, a proper review of the issue before this court involves (1) a determination of the lesser offenses of the offense charged in the indictment and (2) whether an instruction on any of the lesser offenses is warranted by the evidence. State v. Elder, No. 03C01-9702-CR-00053 (Tenn.Crim.App. at Knoxville, Apr. 23, 1998). See also State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996).
It is without dispute that voluntary manslaughter is a lesser offense of second degree murder as it is a lesser grade or class of that offense. See Elder, No. 03C01-9702-CR-00053 (citing Tenn. Code Ann. § 39-13-201 et seq. (1991)). Thus, the remaining question is whether such an instruction on voluntary manslaughter is warranted by the proof presented in the case sub judice.
The Due Process Clause of the Fourteenth Amendment entitles a defendant to an "instruction on a lesser . . . offense if the evidence would permit a jury to rationally find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, 412 U.S. at 208, 93 S.Ct. at 1995 (internal footnote omitted) (emphasis added); see also Trusty, 919 S.W.2d at 311. The court "must determine whether the evidence, when viewed in the light most favorable to the defendant's theory_ of the case, would justify a jury verdict in accord with the defendant's theory, and would permit a rational trier of fact to find the defendant guilty of the lesser offense and not guilty of the greater offense." Elder, No. 03C01-9702-CR-00053(citations omitted). Absent this standard, the trial judge who charges a lesser offense based upon less than sufficient evidence would be faced with the absurd necessity, predicated upon its own invited error, of entering a judgment of acquittal following the jury's guilty verdict on the lesser offense. Elder, No. 03C01-9702-CR-00053 (citations omitted). Moreover, to employ a lesser standard in determining which lesser offenses need be instructed invites the jury to return a compromise or otherwise unwarranted verdict. Elder, No. 03C01-9702-CR-00053 (citations omitted). Indeed, this is exactly what occurred in the present case.
But see State v. Howard, 926 S.W.2d 579, 586-587 (Tenn. Crim. App. 1996 ("relatively scant testimony"); State v. Ruane, 912 S.W.2d 766, 782 (Tenn.Crim.App. 1995) ("slight" evidence).
I acknowledge the trial court's dilemma in resolving this issue. Indeed, the trial court observed that the proper charge would be "either murder second or nothing." However, under the dictates of a decision by a previous panel of this court, Summerall v. State, 926 S.W.2d 278, 279 (Tenn. Crim. App. 1995), the court noted that it had no choice but to instruct on voluntary manslaughter.
After review, I am unable to conclude that the evidence, in this case, when viewed in the light most favorable to the appellant, is sufficient for a rational trier of fact to find the elements of voluntary manslaughter. The proof established that both the victim and the appellant were professionals. The appellant was employed as an investment banker and the victim was a medical lab technician. The victim had serious health problems and had been diagnosed with Hepatitis C and mixed connective tissue disease. The proof also revealed that the appellant and the victim, neighbors in an apartment complex, routinely socialized and it was not unusual for them to visit back and forth, sometimes at unusual hours. The record is absent any indicia of hostility or ill will between the two neighbors prior to the incidents occurring immediately preceding the shooting.
On the fateful evening of the shooting, the appellant and the victim met on four occasions. On all four occasions, it was the victim who initiated the encounters. The testimony established that both had been drinking alcohol. The first meeting occurred as the appellant was returning to his apartment from work when he met the victim on the steps of their apartment building. Their exchange was fairly brief and without any notable unpleasantries. The victim told the appellant that he had been advised by his doctor that his medical condition had worsened and that he only had two and one-half to five years to live. The appellant, in passing, told the victim that he had seen a mutual friend, a local pharmacist, who said "hello." The victim, in response to this statement, questioned the appellant as to whether their mutual friend had said anything else about him. The appellant assured him that their friend had not said anything further and the conversation ended. The remaining encounters involved an extension of the first conversation. In sum, during ensuing meetings between the two, the victim expressed, with growing hostility, that he did not think the appellant had shown appropriate compassion for his worsened medical condition and that he believed the pharmacist had said more than the appellant was relating.
The autopsy report revealed that the victim's blood alcohol level was .42 per cent with cocaine and meperidine also being present.
The record reflects that, although the victim's frustration intensified with each meeting, the appellant remained calm and, in fact, attempted to calm the victim. The last encounter occurred when the victim returned to the appellant's apartment at approximately 10:30 p.m. Prior to entering, the victim remarked, "I'd like to come in and apologize for the way I acted earlier." As the appellant opened the door, the victim pushed his way into the apartment and grabbed the appellant. The appellant retreated to the bedroom where the victim continued, in a "hostile and irate state," to make threats against the appellant's life. Shortly, thereafter, the victim "crammed" a pistol into the appellant's ear and exclaimed, "You've got thirty seconds left to live." The appellant was ultimately able to retrieve the pistol and, during a final scuffle, shot the victim.
Before a defendant can be found guilty of voluntary manslaughter, there must be evidence that he acted in a state of passion sufficient to obscure his reasoning and that the passion was produced by reasonable and adequate provocation. State v. Brown, 836 S.W.2d 530, 553 (Tenn. 1992); see also Tenn. Code Ann. § 39-13-211. In other words, an instruction on voluntary manslaughter is proper only if the proof establishes both provocation and passion. Although the proof clearly establishes that the victim was "hostile and irate," there is simply no evidence that the appellant acted in sudden passion as to obscure his judgment or that the appellant acted in an irrational manner and without cool purpose. See Sentencing Commission Comments, Tenn. Code Ann. § 39-13-211. Indeed, the proof shows that the appellant shot the victim with "cool purpose," believing that the use of deadly force was necessary under the circumstances to prevent his own death, i.e., self-defense. In the absence of proof of passion, I find the trial court's instruction for voluntary manslaughter improper.
Additionally, it could be argued that the instruction on voluntary manslaughter in the present case abridged the appellant's constitutional right to present his defense. The appellant chose to proceed on an "all or nothing" approach, i.e., either he was guilty of second degree murder or the homicide was justified under a theory of self-defense. Voluntary manslaughter does not fall squarely under either category. Rather, it lies someplace between the justifiable killing and the unlawful taking of a human life, in other words, a so-called imperfect self-defense.
Again, voluntary manslaughter differs from homicide which is excusable because committed in self-defense; in the latter case, there is an apparent necessity to kill the agressor for self-preservation, and in the former, no necessity at all. Usually, voluntary manslaughter is a consequence of quarrels and combats. It is committed suddenly, without reflection, and repels the supposition that it is the result of premediation or a prearranged plan to kill.
40 Am.Jur.2d Homicide § 57. Obviously, in a homicide case defended upon a theory of self-defense where there is no proof of either passion or provocation, an instruction on manslaughter effectively compromises the defendant's theory of the case. Cf. People v. Strohl, 456 N.E.2d 276, 280 (Ill. App. 1983).
For the above reasons, I respectfully dissent. ____________________________________ DAVID G. HAYES, Judge