Case of State v. Brown, 836 S.W.2D 530 (Tenn. 1992), Too Far. In My View, The ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT JACKSON Nov. 19, 1996
MAY SESSION, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) No. 02C01-9511-CR-00336
Appellee )
) SHELBY COUNTY
vs. )
) Hon. L. T. Lafferty, Judge
MALUNDA L. MYERS, )
) (First Degree Murder)
Appellant )
DISSENTING OPINION
I must respectfully dissent from the opinion of my learned colleagues,
Judge Hayes and Judge Summers. I believe that the majority has stretched the
case of State v. Brown, 836 S.W.2d 530 (Tenn. 1992), too far. In my view, the
prosecution proved that the appellant committed the murder with premeditation
and deliberation. If the majority is correct as to its interpretation of Brown, I
would ask our Supreme Court to revisit the issue based upon this factual
scenario.
Dr. Jerry Francisco testified that the death of Joseph Curtis “was due to
multiple injuries to the head and body. . . .” The medical examiner testified that
the victim had been beaten to death. The victim sustained bruises, scrapes, and
multiple injuries to the face and head. His nose was broken. There was
hemorrhage to the scalp and bleeding on the surface of the brain. The base of
the skull was fractured. The victim suffered broken teeth. He had bruises to his
lips. His chest was scraped and bruised. The victim’s chest also revealed “two
patterned injuries. . . that had the appearance of footprints.” The left third rib
was broken in the same area of the patterned footprints. In sum, Dr. Francisco
testified that the victim’s injuries were consistent with having been beaten,
stomped, and kicked. It is clear that the appellant used both his fists and his feet
on Mr. Curtis.
The appellant confronted the victim twice. He had plenty of time to cool
down assuming he was mad. The proof showed that the appellant kicked and
beat the victim while the victim was on his hands and knees. He continued to
beat the victim even after he knew that the victim would not pay him any money.
The appellant beat and kicked the victim repeatedly. Curtis pleaded for help
during the multiple assaults. The appellant concealed and tried to cover up his
crime by hiding his jacket and his shoes after the murder.
I agree that State v. Brown, states that “the fact that repeated blows were
inflicted on the victim is not sufficient, by itself, to establish first-degree murder.”
Brown, 836 S.W.2d at 542. That is not to say, however, that repeated blows
negate premeditation and deliberation. I believe that premeditation and
deliberation can be inferred and proven when a victim is on the ground, asking
for help and pleading for mercy; and the appellant continues to beat, kick, and
assault. A murderer may deliberate and premeditate prior to his act. Then,
during the perpetration of the fatal act he or she may commit it with hot blood
and violent passion. This would not negate the prior premeditation and
deliberation so as to absolve the murderer of a first-degree murder conviction.
I simply do not believe that under these facts, the Brown test dictates the
majority’s results. The appellant killed Mr. Curtis in a cool state of blood. He had
a fixed design. He wanted to accomplish his unlawful purpose, and he knew
what he was doing. The facts show, in my view, that he was not under the
influence of violent passion or sudden arousal by legal provocation. He
committed the murder of Mr. Curtis by premeditating in advance, deliberating
upon his contemplated act, and willfully carrying it to fruition.
I would affirm the conviction of murder in the first degree. For these
reasons, I dissent.
________________________________
PAUL G. SUMMERS, Judge