Parks v. State , 1976 Tenn. Crim. App. LEXIS 321 ( 1976 )

OPINION

WALKER, Presiding Judge.

Convicted in Hamilton County Criminal Court of second degree murder of Willie E. Mahaffey and sentenced to ten years in the penitentiary, the appellant, William M. Parks, appeals in error.

The appellant, age 62, was engaged in selling whiskey and on March 2,1975, sold a half-pint of whiskey to the deceased who was cooperating with the Chattanooga police in making the purchase. This resulted in the appellant’s arrest. A few hours later, the deceased, then intoxicated, returned to the appellant’s home and in the bedroom the appellant fatally shot him with a pistol. In addition to the pistol wound in the head, the deceased had two scalp lacerations about one and one-half to two inches in length. His blood alcohol content was .20 grams percent.

Four persons were present when Officer Huggins arrived at the appellant’s house where Mahaffey was still alive. In response to Huggins’ inquiry as to what happened, the appellant replied: “I shot him; I killed the son-of-a-bitch.” He was arrested and given Miranda warnings after which he said he threw the gun outside the front door. The pistol was never found. He was then taken to police headquarters and, after further warning, he signed a waiver of his rights. At that time he declined to make a statement. When Officer Slaughter told him he was just trying to find what happened, the appellant repeated his earlier statement that he shot Mahaffey and threw the gun outside. He declined to answer any other questions although he again repeated his statement.

Testifying in his own defense, the appellant contended the shooting was an accident. He admitted selling Mahaffey a half-pint of whiskey that day but said he did not know he was an undercover agent. By his testimony, he was taking a nap when someone came in shouting, “Get out of that bed, you son-of-a-bitch.” It was dark, he did not have on his glasses and he did not recognize the person. He kept his pistol by the bedside for protection and when he struck the person with it the pistol discharged accidentally. He had known Mahaffey a long time and would not have struck him or shot him if he had known that he was the person in his room. He thought it was an intruder when he struck him. He did not know that Mahaffey had caused his arrest for selling whiskey. He insisted that he struck once with the pistol and that it went off accidentally.

Parks contends the court erred in admitting evidence of his prior crime for selling whiskey. The purpose of this evidence was to show his motive for the murder. By the state’s theory, Mahaffey was responsible for his arrest and Parks’ motive was vengeance for Mahaffey’s deception. Williams v. State, Tenn.Cr.App., 520 S.W.2d 371.

The appellant challenges the admissibility of the photograph of the deceased. His principal complaint, however, is that the court did not grant his special request for instructions on how to consider photographic evidence.

The photograph was admissible to show the scalp wounds as well as the location of the bullet wound and to corroborate the medical testimony. It was properly admissible and not inflammatory. The trial judge did not abuse his discretion in admitting it. Freshwater v. State, 2 Tenn.Cr. App. 314, 453 S.W.2d 446, cert. denied 400 U.S. 840,91 S.Ct. 80, 27 L.Ed.2d 74; Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128. No special instructions were needed.

The appellant says the court erred in admitting his statement on the arrival of the officers to the effect that he had killed Mahaffey. He argues that this was inadmissible because he had not been warned in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

This was a general on-the-scene investigation by Officer Huggins, the first officer to arrive. The investigation was in its earliest stage; four persons were present and no one was arrested or detained. No coercion was involved. The focus of the investigation had not narrowed beyond those four persons there. The statement was admissible. Ballard v. State, 2 Tenn.Cr.App. 431, 454 S.W.2d 193; Suggars v. State, Tenn.Cr.App., 520 S.W.2d 364.

The appellant insists the court erred in allowing testimony that he relied on his right to remain silent.

After his on-the-scene statement, Officer Huggins told him to make no more statements and then warned him properly. After those warnings he told the officer he threw the gun out the front door. At police headquarters he signed a waiver of rights. After first refusing to make a statement he again said he shot Mahaffey and threw the gun outside but then answered no more questions. We find no error.

The appellant was properly warned in accordance with Miranda v. Arizona, supra, before making his statements. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court considered postarrest silence for impeachment purposes. In Braden v. State, Tenn., 534 S.W.2d 657, our Supreme Court considered comment in closing argument that the accused remained silent on his arrest. The rationale of these cases is that post-Miranda silence is too ambiguous to have probative effect.

But here, contrary to the facts of those eases, the appellant’s silence, short-lived, was preceded and followed by highly incriminating statements which removed any ambiguity that may have arisen from his temporary claim of privilege. His subsequent statement constituted a waiver under Miranda. Bowling v. State, 3 Tenn.Cr. App. 176, 458 S.W.2d 639. Similarly, it is not prejudicial for an officer to say that after making a statement or answering a question the one being interrogated refused to make any other statement, since this is merely a comment on the scope of the defendant’s statements and not a reference to the refusal of the defendant to make any statement at all. This is not a case where the accused remained mute or refused to make any statement.

The appellant urges that the court erred in permitting evidence of the deceased’s good reputation for peace and quietude. By his testimony the appellant was a friend of Mahaffey for 20 years and would not have shot him if he had known his identity. If this was erroneously admitted, it was harmless.

The assistant district attorney general’s reference to the appellant’s failure to call witnesses was legitimate argument. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121.

Parks contends the instructions on the presumption of malice from the use of a deadly weapon violates the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. We held to the contrary in Armes v. State, Tenn.Cr.App., 540 S.W.2d 279 (1976). This assignment is overruled. Other special requests were likewise properly denied.

The evidence abundantly sustains the verdict. There is no question that the appellant shot Mahaffey and killed him. The jury did not believe his explanation. The killing with a deadly weapon raised a presumption of malice sufficient to justify the conviction for murder in the second degree. Humphreys v. State, Tenn.Cr.App., 531 S.W.2d 127.

All assignments are overruled and the judgment is affirmed.

TATUM, J., concurs.