State v. Johnny Martin ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 March 23, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00520
)
Appellee, )
) McMINN COUNTY
V. )
)
) HON. R. STEVEN BEBB, JUDGE
JOH NNY MAR TIN, )
)
Appe llant. ) (SECOND DEGREE MURDER)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
WILLIAM C. DONALDSON ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
10th Ju dicial District 2nd Floor, Cordell Hull Building
110 ½ Washington Avenue NE 425 Fifth Avenue North
Athens, TN 37303 Nashville, TN 37243
GERALD L. GULLEY, JR. JERRY N. ESTES
Attorney at Law District Attorney General
P.O. Box 1708 10th Judicial District
Knoxville, TN 37901-1708 130 Washington Avenue NE
(On App eal Only) P.O. Box 647
Athens, TN 37371-0647
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Johnny Martin, appeals as of right his conviction for second
degree murder following a jury trial in the McMinn County Criminal Court. Defendant
was found guilty on January 29, 1985. He was subsequently sentenced to serve
thirty (30) years as a Range I Standard Offender on March 1, 1985. He also filed a
Motion for New Trial on that same date. For reasons totally unexplained in the
record, the trial court did not enter an Order denying the Motion for New Trial u ntil
June 3, 199 7. The hearin g on th e Mot ion for N ew T rial is not transcribed in the
record. Howe ver, the trial co urt’s Order indica tes the motio n was not he ard un til
Novem ber 4, 19 96.
At the co nclus ion of th e sen tencin g hearing, the trial court asked defense
counsel if he was ready to argue the Motion for New Trial, to which defense counsel
responded, “[n]ot at this time.” After the Order was entered denying the Motion for
New Trial, the co urt appo inted the p ublic defe nder on Augus t 15, 1997 , to represent
Defendant on appeal of his conviction. On November 14, 1997, the trial court
entered a second Order denying the Motion for New Trial. This Order instructed the
public defender to file a Notice of Appeal within thirty (30) days. The public defender
filed a Notice of Appeal on November 18, 1997. The seco nd Order o f the trial court
denying the Motion for New Trial is of no effect. See gene rally State v. Pendergrass,
937 S.W.2d 834 (Tenn. 199 6). More than thirty (30) d ays had elapsed between the
entry date of the first Order denying the Motion for New Trial and the date the Notice
of Appeal was filed. Therefore, the Notice of Appeal was untimely. However, in the
interest of justice , we wa ive the re quirem ent of a Notice of App eal be ing filed within
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thirty (30) days of an Order entered denying a Motio n for N ew T rial, and we will
address the issues Defendant has presented. Defendant sets fo rth thre e issue s in
his Motion for New Trial, two of which, in essence, challenge the sufficiency of the
evidence to support the conv iction. The third issue asserts that the trial court erred
in its charge to the jury concerning aiding and abetting. Defendant has also
presented two (2) additio nal issu es in his brief on a ppea l which were n ot raise d in
the Motion for New Trial. Although these issues shou ld be d eem ed wa ived, we will
again, in the intere st of justice, address those issues on the merits. The first one
challenges the jury instructions on malice and the second challenges the
admis sibility of certain testimon y admitted at trial. After a careful review of the entire
record, w e affirm the judgm ent of the tria l court.
On November 24, 1984, betwe en 5:3 0 and 6:00 p .m., D efend ant an d his
brother Danny Martin went to Wayne’s Package Store which was owned by Hugh
“Skunk” Torbett, the victim. Diane Pierce, an employee of the store, sold both
Defendant and his brother a bottle of beer that evening, and each man also paid
Pierce a two dollar cover charge. Ms. Pierce testified that Defendant appeared
drunk because he was staggering and was very “glassy-eyed.” She also testified
that he had a “bulge ” in the front of his pants that looked like it might have been a
gun. Howeve r, she said she wasn’t positive it was a gun. After about fifteen minutes
in the store, Ms. Pierce approached Defendant and told him that he wou ld have to
leave because Defendant ha d been ba rred for brawling a few months e arlier.
Defendant and his brother then purchased a six pack of beer to go and left the
establish ment w ith Sand y We lls and Kim Harris.
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Sandy Wells testified that the four of them left Wayne’s Package Store to go
smoke marijuana. S he said that they d rove to the 411 Pa ckage Sto re where
Defendant purchased more beer. She also said, “I could tell they [Defendant and
his brother] had been drinking. I wouldn’t say that they were sloppy drunk but they
were intoxicated.” Ms. Wells later told Defendant and his brother that she wanted
to go back to Wayne’s Package Store because she had a date. According to Ms.
Wells, Defendant said, “[t]here’s going to be trouble. I know the re will be trou ble.”
Ms. We lls testified that she did not se e a weapo n on either De fendant or his bro ther,
nor did sh e see a “bulge” u nder D efenda nt’s pants . She said that the four of them
were gone from Wayne’s Package S tore a total of about thirty minutes.
When they returned to Wayne’s Package Store, Ms. Wells met her boyfriend
outside and the two of them went inside to get a beer. After they had been inside
a few minutes, Ms. Wells saw Defendant and his brother come inside. As Defendant
entered the bar, the owner/victim came over and told him that he would have to
leave because he had been barred. While the victim and Defendant were talking,
the victim put a hand on each of Defendant’s shoulders and backed him towards the
door. Danny Martin was following them. As the men approached the door, the
victim reached out to open it and Defendant, Danny, and the victim all fell down.
Defendant fell straight back and the victim fell partia lly to the le ft of him and p artially
on top of h im. Da nny fell to the floo r on his hands and knees. Ms. Wells, along w ith
several other witnesses, testified that she heard a gunshot right as the m en hit the
ground, but no one saw either Defendant or Danny with a gun at that time. The
victim rolled awa y from D efenda nt, got up, a nd ran o utside the building w ith
Defendant and Danny following behind him. Witn esses s aw De fendan t with a gun
in the parking lot three seconds after the shooting. Although one witness later saw
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Danny Martin shoot at the victim as he ran, expert testimony showed that the victim
was wo unded and killed b y one clos e-range shot.
Diana Konkoly, a criminalist at the Tennessee Bureau of Investigation,
testified that she analyzed swabs from the hands of Defendant and his brother. She
testified that the results of the an alysis led her to believe that Defenda nt could have
fired or handled a gun that e vening. The results of the analysis o f the swab from
Danny Martin’s hands were inconclusive. Ms. Konkoly also testified that the
maxim um dis tance fro m whic h the gu n was fired was thre e feet.
Dr. Bill Foree performed the autopsy on the victim. He testified that there was
only one g unsh ot wou nd on the victim and that the wound was created by the bullet
entering at an upw ard ang le. He also said that the wound was a “close gunshot
wound ,” which he described as one caused by a shot being fired from three feet or
less.
Detective Gary Robbins testified that the weapon used to kill the victim was
never found.
I. Sufficiency of the Evidence
In the first issue, De fendan t argues that the evid ence w as insufficie nt to
support a jury verdict of second degree murder. Specifically, he argues that the
State failed to prove that he committed the murder with malice.
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When an accused challenges the sufficiency of the convicting evidence, the
standard is whether, after reviewing the evidence in the light most favorable to the
prosection, any rational trier of fact c ould have found the essential elements of the
crime beyond a reason able do ubt. Jackson v. Virginia , 443 U.S. 30 7, 319 (1979 ).
This stand ard is a pplica ble to fin dings of guilt predicated upon direct evidence,
circumstantial evidenc e or a co mbina tion of direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
State is entitled to the strongest legitimate view of the evidence and all inferences
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a
verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v.
Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476
(Tenn. 19 73).
Questions conce rning the credibility of the witne sses, the weight an d value to
be given the evidence, as we ll as all factual issues raised b y the evidence, a re
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court
reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict
approved by the trial judge accredits the State’s witnesses and resolve s all conflicts
in favor of the State. Grace, 493 S.W .2d at 476 .
Moreover, a criminal offense may be established exclusively by circumstantial
evidence. Duch ac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901
S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn.
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Crim. App. 1981 ). However, before an accused may be convicted of a criminal
offense based upon circumstantial evidence alone, the facts and circumstances
"must be so strong and cogent as to exclude beyond a reasona ble doubt eve ry other
reaso nable hypothe sis save g uilt of the defe ndant." State v. Crawford, 225 Tenn.
478, 470 S.W .2d 610 (1971); Jones, 901 S.W .2d at 396 . In other words, "[a] web of
guilt must be woven around the defendant from which he cannot escape and from
which facts and circumstances the jury could draw no other reasonable inference
save the guilt of the de fendan t beyond a reaso nable d oubt." Crawford , 470 S.W.2d
at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).
At the time of the offense, second degree murder was defined as a malicious
killing. See Tenn . Code Ann. § 39-2-211 (repealed 1989). Defendant challenges
the sufficiency of the evidenc e as to the malice requirement. However, malice may
be expressed or implied. Malice may be inferred from the circumstances
surrounding the killing. See State v. Gilbert, 612 S.W.2d 188,190 (Tenn. Crim. App.
1980), perm. to appeal denied (Tenn . 1981); Wilso n v. State, 574 S.W.2d 52, 55
(Tenn. Crim. App.), perm. to appeal denied (Tenn. 1978). Malice may also be
implied from the use of a dead ly weapo n resulting in death. Wilson, 574 S.W.2d at
55. Wh ether th e facts estab lish suc h ma lignity as to establish second degree
murder is a factual question within the jury’s provinc e. State v. Johnson, 541 S.W.2d
417 (T enn. 19 76).
W e conclude that the record contains sufficient evidence for a finding that
Defendant malic iously k illed the victim. D efend ant ha d bee n ban ned fro m W ayne’s
Package Store three months earlier for brawling. When Defendant went to the
establishment on the day of the murder, he was told by Ms. Pierce that he was not
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allowed there a nd he was a sked to leave . After lea ving the store fo r appro ximate ly
thirty minutes, during which time he drank beer and possibly smoked marijuana, he
told Ms. W ells that “[t]here ’s going to be trouble. I know there will be trouble.” He
then went back inside the establishment where he saw the victim. Th e victim
approached Defendant and asked him to leave. Defendant resisted and argued with
the victim abo ut leaving. While the victim was attempting to remove Defendant from
the premis es, the fata l shot was fired. According to witnesses, Defendant had a gun
in his hand just seconds after the shooting . Residue from firing or handling a gun
was later found on his hands. The jury could have inferred from the evidence
presented that Defendant acted with malice in killing the victim. This is sue is without
merit.
II. Jury Instructions
A. Aiding and Abetting Instruction
Defendant contends that the trial judge erred by instructing the jury on aiding
and abetting where Defendant was the only criminal actor. He argues that the
instruction confused the jury and prejudiced him.
At trial, defense counsel’s cross-examination of witnesses elicited responses
suggesting that Defendant was not seen with a gun before the killing. Mrs. Pierce
said that she s aw only a bulge in D efenda nt’s waistb and, no t necessarily a gun.
Mrs. Wells testified that she never saw a bulge under Defendant’s belt. The defense
elicited testimony that Defendant’s right hand was not visible during the scuffle and
that no one actually saw Defendant shoot the victim when the two of them fell to the
floor. One witnes s even testified that he saw D efend ant’s brother, Danny Martin,
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fire a shot at the victim in the parking lot from a distance o f approxim ately 30 fee t.
Howeve r, as Defendant points out, the scientific evidence presented at trial
established that the fatal shot to the victim was fired from a distance of three feet or
less.
The trial judge did state to counsel that “[a]n aiding and abetting charge might
be confusing to a jury, but, gentlemen, I believe an aiding and abetting charge
belongs there.” Nonetheless, the defense theory that there was not enough
evidence to sho w that D efend ant wa s the o ne wh o actu ally killed the victim
warranted an aiding-and-abetting charge. However, Defendant has failed to show
how the aiding-and-abetting instruction either confused the jury or prejudiced him.
This issu e is withou t merit.
B. Presumption of Malice
Defendant contends that it was a violation of his constitutional rights for the
trial court to charge the jury that malice was presumed in a homicide and that the
use of a deadly weapon perm itted a pre sump tion that the perpetra tor acted with
malice. See Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39
(1979). Specifically, Defendant claims that the evidence of malice is weak in the
case sub judice, and this issue sh ould therefore be controlled by State v. Martin , 702
S.W .2d 560 (Tenn . 1985).
As Defendant concedes, he did not challenge the jury instruction on the basis
of malice either at trial or in his motion for a new trial. The record shows that the
only objection Defendant made pertaining to the instructions was based on the
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aiding and abetting charge. Similarly, the motion for new trial did not challenge the
jury instruction on malice. Accordingly, Defendant has waived the challenge to the
jury instruction on m alice. Tenn. R . App. P. 3(e) an d 36(a).
Howeve r, even addressed on the merits, Defendant’s claim that the
instructions constituted reversible error is without merit. The pertinent portions of the
instructions complained of are as follows:
All homicides are presumed to be malicious in the
absence of evidence which would rebut the implied
presumption, but this do es not sh ift the burde n of proo f.
The [S]tate still must prove each element beyond a
reaso nable doubt. Thu s, if the [S]tate has proven beyond
a reaso nable doub t that a k illing ha s occu rred, th en it is
presumed that the killing wa s don e ma liciously , but this
presumption may be rebutted by either direct or
circumstantial evidence, or by both, regardless of whether
the same be offere d by the d efenda nt, or exists in the
evidenc e of the [S ]tate.
Likewise, if a dea dly wea pon is handled in a manner so as
to make the killing a natural or probable result of such
condu ct, then there is raised a presumption of malice
sufficient to support a conviction of murder in the second
degree unless it is rebutted by other facts and
circumstances.
The United States Supreme Court held in Sandstrom v. Montana that due
process is violate d by ins tructing a jury as to the e videntia ry pres ump tions to
establish elements of a crime in such a manner that relieves the State of its burden
of proof. 442 U.S. at 523-24, 99 S. Ct. 2450, 2458-59, 61 L. Ed. 2d 3 9. Howeve r,
violations of the Sandstrom rule are su bject to ha rmless error ana lysis. Rose v.
Clark, 478 U.S . 570, 580 , 106 S. C t. 3101, 31 07, 92 L . Ed. 2d 4 60 (198 6).
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In State v. Bolin , a decision by our supreme court approximately four months
prior to the De fendan t’s trial, the cou rt ruled that the word “inference” should be
substituted for the word “presumption” in all instructions except the one on the
presumption of innoce nce. 678 S.W.2d 40, 44-45 (T enn. 1984 ). However, the co urt
in Bolin also held that the jury instruction in that case could not have been
interpreted by a reasonable jury as mandatory or as shifting the burden of
persuasion to the defendant on the element of malice. Id. at 44. The instructions
in the case sub judice, as in Bolin, clearly and repeatedly emphasized that the
presumption of innocence remained with the Defendant and that the burden of
provin g his g uilt beyo nd a re ason able doubt remained on the State throughout the
trial. Specifically, the trial court explained:
The law presumes that the defendant is innocent of the charges against
him. This presumption remains with the defendant throughout every
stage of the trial, and it is not overcome unless from a ll the evid ence in
the case you are convinced beyond a reasonable doubt that the
defendan t is guilty.
The State has the burden of proving the guilt of the defendant beyond
a reasonable doubt, and this burden never shifts but remains on the
State through the trial of the case. The defendant is not require d to
prove his innocen ce.
W e find that the court made it quite clear that there was no shifting of any burden.
When considering the propriety of such jury instructions, the United States Supreme
Court has held that “a single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the con text of the overall charge .” Cupp v.
Naughten, 414 U.S. 14 1, 146-47, 94 S. Ct. 396, 400 , 38 L. Ed. 2d 36 8 (1973).
The court in Bolin also h eld that any error in the instruc tions w as ha rmles s in
that case given the overwhelming evidence against the de fendan t. Bolin, 678
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S.W.2d at 45. The co urt instructed that the en tire record should b e exam ined to
determine whether the verdict was (or could have been) reached witho ut resort to
the “pres umptio n” of ma lice. Id. at 45. Turning to the facts in the case sub judice,
on the night of the shooting, Defendant was asked to leave Wa yne’s Packa ge Store
from which he had previously been barred for brawling. He left and then drove
around in a car during which time he drank beer and smo ked m arijuan a. W hile in
the car, he told the other passengers that if they went back to Wayne’s Package
Store then there was “going to be trouble.” Up on his return to W ayne’s
appro ximate ly thirty minute s later, he w as aske d to leave by the owner/victim.
Mom ents later a gun went off as Defenda nt and the victim fell to the floor which
proved later to be the fatal shot to the victim. Although no witnesses actually saw
the gun in D efenda nt’s hand at the time it went off, witn esses did testify that they
saw a gun in Defen dant’s ha nd three secon d after the s hooting . Defendant then fled
from the establish ment.
If facts inde pende ntly establish the elem ent of m alice, “presumptive”
instructions do not ha ve a harm ful effect up on the fac t-finding pro cess. See Adkins
v. State, 911 S.W.2d 334, 346 (Tenn. Crim. App. 1994), perm. to appeal dismissed
(Tenn. 1995). We think most reasonable jurors would readily conclude from these
facts that Defe ndant a cted with m alice. See Bolin, 678 S.W.2d at 45. The existence
of malice was established by proof of Defendant’s own actions, not by resort to a
presumption. Ther efore, th e instru ction w as ha rmles s beyo nd a re ason able doubt.
W e note that the instructions in the case before us differ greatly from the ones
in Martin , 702 S.W.2d 560. In that case, the trial court did not explain that rebuttal
proof could be esta blished by eviden ce from the S tate or from th e acc used , and it
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did not sufficien tly define m alice. Id. at 564. C onverse ly, in the present case, the
court offered three paragraphs on malice which were far more specific and detailed
than those found in Martin . Moreov er, the instructions specifically explained that
rebuttal could be established by evidence from either the State or from the accused,
contrary to Martin . Even though the trial judge in the case sub judice charged that
“[a]ll homicides are presumed to be malicious in the absence of evidence which
would rebut the implied presumption,” the court also immediately went on to say “but
this presumption may be rebutted by either direct or circumstantial evidence, or by
both, regardless of whether the same be offered by the defendant, or exists in the
evidence of the [S]tate .” Finally, the fac ts of Martin did not sufficiently establish
malice a s we ha ve previou sly found th ey did he re. This iss ue is witho ut merit.
III. Admissibility of Expert Testimony
Defendant argues in this issue that the trial court erred by allowing the exp ert
testimony of Ms. Konk oly because her testimony d id not substan tially assist the jury.
Defendant did not ob ject to Kon koly’s testim ony at trial and has therefore
waived the issue of whether her testimony was proper. T enn. R . App. P. 3 6(a); State
v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Also, Defe ndan t did not
raise the issue in his motion for a new trial. Failure to include an issue in the motion
for a new trial results in th e waiver o f that issue . Tenn. R . App. P. 3 (e); State v.
Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). Furthermore, even after
reviewing Ms. K onko ly’s testim ony, w e do n ot belie ve the tr ial judg e abu sed h is
discretion in allowing the expert tes timony. State v. Caughron, 855 S.W.2d 526, 537
(Tenn . 1993). T his issue is without m erit.
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Based on all the for egoing , we affirm th e judgm ent of the tria l court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
DAVID H. WELLES , Judge
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