State v. Jeffery Spann

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
December 3, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) C.C.A. No. 01C01-9610-CC-00426
Appellate Court Clerk
)
Appellee, ) DICKSON COUNTY
)
VS. ) HON. ROBERT E. BURCH,
) JUDGE
JEFFERY S. SPANN, )
) (Second Degree Murder)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID D. WOLFE JOHN KNOX WALKUP
304 East College Street Attorney General and Reporter
Dickson, TN 37055
KAREN M. YACUZZO
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
DAN MITCHUM ALSOBROOKS
District Attorney General
ROBERT S. WILSON
Assistant District Attorney General
P. O. Box 580
Charlotte, TN 37036
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jeffery S. Spann,1 was convicted by a Dickson County jury
of second degree murder and received the maximum Range I sentence of twenty-five
(25) years. On appeal, he presents the following issues for our review:
(1) whether the evidence was sufficient to support the
conviction;
(2) whether the trial court erred by allowing the state to
introduce a pre-trial statement by the defendant
regarding his understanding of the law of self-defense;
(3) whether the trial court erred by allowing the state to
introduce threats allegedly made by the defendant prior
to the shooting;
(4) whether the trial court erred by denying defendant’s
request for a mistrial after a witness mentioned
defendant’s drug involvement;
(5) whether the trial court erred by prohibiting the defense
from introducing evidence of the presence of cocaine in
the deceased’s body; and
(6) whether the sentence was excessive.
We find the trial court erred by not granting a mistrial; therefore, we reverse and
remand for a new trial.
FACTS
The state’s theory at trial was that the defendant unlawfully took the life of the
victim because of jealousy relating to defendant’s former girlfriend. According to the
state’s proof, the homicide occurred after defendant learned that the victim had been
spending time with his former girlfriend. The defendant claimed self-defense.
The homicide occurred at approximately 1:30 a.m. on a Sunday. On the
preceding Saturday morning, defendant learned that the victim had been spending
time with his former girlfriend. The former girlfriend testified that the defendant was
jealous and possessive.
1
Defendant’s name is also spelled “Jeffrey” in various pleadings.
2
On that Saturday the defendant secured his two-shot .357 magnum derringer
from his mother’s residence. He stated to a friend that he needed to get out of “all
of this shit” in Dickson; otherwise, “he was going to kill somebody today.”
Defendant then went to Nashville where he saw the victim. Defendant asked
the victim if he had seen his former girlfriend, and the victim replied in the negative.
A person who was with defendant at the time of this conversation testified that the
defendant stated he believed the victim was with his former girlfriend. The defendant
seemed “pretty jealous.”
Defendant returned to Dickson and went to a tavern. While there he talked to
one of his friends and spoke of his former girlfriend. He further stated “he ought to
go kill them both.” Defendant then displayed an open hawk bill knife. The homicide
occurred approximately two (2) hours after this conversation.
There were no eyewitnesses to the actual homicide which took place outside
the defendant’s residence. Defendant testified that upon leaving the tavern he went
to the Waffle House for about an hour. When he returned to his residence, he stated
he pulled in his driveway and observed the victim, who was his best friend, highly
intoxicated and kicking the defendant’s Rottweiler dog. The victim’s truck had the
dog trapped against a fence. According to the defendant’s testimony, he asked the
victim to leave the dog alone resulting in the victim shoving the defendant. Defendant
asked the victim to leave, whereupon the victim entered his vehicle. Defendant then
secured the derringer from inside his residence. The victim backed up his vehicle
in the driveway, jumped out, cursed the defendant and pushed the defendant to the
ground. Defendant told the investigating officer that, knowing the victim was very
violent when he was intoxicated, he fired one shot toward the victim from
approximately fifteen (15) to twenty (20) feet away. It is undisputed that the victim
died as a result of this gunshot wound to the chest.
The autopsy report revealed that the victim had a blood alcohol concentration
of .23%. Several witnesses testified that the victim, who was six (6) feet five (5)
inches tall and weighed approximately 240 pounds, had a reputation for violence
when he was intoxicated. One of these witnesses was a police officer who testified
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that the victim, who was intoxicated at the time, violently assaulted him in a tavern.
On the other hand, the state’s proof showed the following:
(1) the victim did not have a weapon and had never hit the
defendant prior to this occasion;
(2) prior to this occasion the defendant had been told by an
attorney that he could “kill one a day as long as it was
self-defense”;
(3) although defendant claimed the victim pushed him to the
ground, there were no grass stains, dirt or marks on
defendant’s clothing;
(4) the neighbors heard no loud talking or shouting prior to the gunshot,
which was contrary to defendant’s testimony that the victim was highly
intoxicated, angry and cursed the defendant;
(5) neighbors testified that only ten to twenty seconds
passed from the time they heard an automobile drive into
the driveway until the time they heard the gunshot;
(6) according to the pathologist, the gun was only eight to
twelve inches from the victim at the time of the shooting;
and
(7) the bullet’s trajectory was from top to bottom.
The state theorized in final argument that the trajectory indicated that the
victim was either in his vehicle or just exiting his vehicle when the shot was fired. In
essence, the state argued the defendant did not fire in self-defense.
SUFFICIENCY OF THE EVIDENCE
A.
In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A
jury verdict approved by the trial judge accredits the state's witnesses and resolves
all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to
the strongest legitimate view of the evidence and all legitimate or reasonable
inferences which may be drawn therefrom. Id. This court will not disturb a verdict of
guilt due to the sufficiency of the evidence unless the defendant demonstrates that
the facts contained in the record and the inferences which may be drawn therefrom
are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty
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beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996). Accordingly, it is the appellate court's duty to affirm the conviction if the
evidence, viewed under these standards, was sufficient for any rational trier of fact
to have found the essential elements of the offense beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789
61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
B.
The defendant was convicted of second degree murder. Second degree
murder is the knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1). In this
case, the state also had the burden of proving beyond a reasonable doubt that the
killing was not in self-defense. Tenn. Code Ann. § 39-11-203(d).
Looking at the evidence in a light most favorable to the state, the evidence is
sufficient to support the verdict of guilty of second degree murder. Much of the
evidence was inconsistent with the defendant’s version that he acted in self-defense.
It was clearly a jury issue as to whether the defendant acted in self-defense.
This issue is without merit.
DEFENDANT’S UNDERSTANDING OF SELF-DEFENSE
Shortly after the defendant’s arrest, he was interrogated. During this
interrogation the defendant stated that, prior to this incident, he had been told by his
lawyer that he could “kill one a day as long as it was self-defense.” Defendant
contends that the admission of this statement at trial was irrelevant, prejudicial and
should have been excluded.
It is the state’s contention that the defendant claimed self-defense simply
because of his prior knowledge that he could be exonerated based upon this
defense. We agree that this evidence was relevant to show why defendant insisted
on self-defense during the interrogation.
This issue is without merit.
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PRIOR THREATS
One of the defendant’s friends testified that he saw the defendant in a tavern
shortly prior to the homicide. The defendant spoke of his former girlfriend and stated,
“[h]e ought to kill them both.” He then displayed an open knife. This occurred
approximately two (2) hours prior to the homicide.
Defendant contends this evidence was irrelevant and the prejudice clearly
outweighs probative value. See Tenn. R. Evid. 403. We disagree. Although the
defendant does not mention the victim by name, it is a reasonable inference from all
the evidence that the defendant was referring to the victim and the defendant’s
former girlfriend. Obviously, a defendant’s expressed intent to kill is highly relevant
to a homicide prosecution. Tenn. R. Evid. 401; State v. Gentry, 881 S.W.2d 1, 6
(Tenn. Crim. App. 1993).
This issue is without merit.
REFUSAL TO GRANT MISTRIAL
A.
On the day prior to the homicide, the defendant and a friend went to Nashville.
The friend testified as a state witness. When asked why she and the defendant went
to Nashville, she stated, “[w]e went to pick up some drugs.” An objection and request
for mistrial immediately ensued. It is undisputed that this response was not
intentionally solicited, nor was it anticipated by the prosecution.
An extensive jury-out hearing followed the objection and request for mistrial.
The trial court remarked that “the reaction from the jury was real strong,” and there
“were some rather shocked faces on the jury.” Upon the prosecuting attorney
suggesting that the jury might think the witness was talking about going to a
pharmacy, the trial court responded, “[y]es, and let’s wait for the Easter Bunny.”
Defense counsel noted that there was, in fact, an audible reaction to the testimony.
The trial judge suggested that the jury be voir dired as to the effect of the
testimony. Defense counsel objected stating this would simply reinforce what they
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had heard. Likewise, the district attorney general agreed that this would make the
“bell ring louder.”
The judge again remarked that the statement obviously had an effect upon the
jury, and “I don’t see how [a voir dire of the jury] can do any worse.” The trial court
then made the following comments:
But just the normal human tendency to say, “Well, if this fellow was on,
drugs, then he might have done other bad things, too.” That’s the
reason that the Courts are so concerned about a defendant being
convicted of one crime because of being involved in something else.
And that’s why it’s prejudicial here.
You know, if this guy was on drugs, then he would be more likely to
commit a murder than someone who was not. That’s the reason I think
it’s so prejudicial.
The court further noted the possibility that the jury, after an admonishment,
might be more likely to return a defendant’s verdict. The district attorney general
agreed with this concern.
The trial court then noted that he would conduct an individual voir dire “against
all the advice that [defense counsel and the two prosecuting attorneys] have given.”
All fourteen (14) jurors were individually voir dired by the trial court, and all explicitly
recalled the testimony concerning drugs. Each juror was informed by the court that
this testimony would not have been admitted by the court. Each juror was asked if
he or she could disregard the testimony in reaching a verdict. The jurors stated the
testimony would be disregarded; however, at least four (4) jurors were somewhat
equivocal at some point in their voir dire. Two (2) of these jurors were excused by
the court. The other two (2) jurors who respectively stated, “I believe so” and “I think
so” remained on the panel.
After the trial court’s individual voir dire, the district attorney general stated that
all jurors clearly remembered the exact testimony, he feared it would raise the state’s
burden of proof, and he further agreed with defense counsel that “the bell got run
pretty loudly.”
The trial court noted his satisfaction that the remaining twelve (12) jurors would
not consider the testimony against either the defendant or the state. The court
further noted that if the issue is brought up in deliberations, “I can guarantee you at
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least three (3) jurors will immediately stop that problem.”2 The request for mistrial
was denied.
B.
The determination of whether to grant a mistrial rests within the sound
discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The
reviewing court should not overturn that decision absent an abuse of discretion.
State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The burden of
establishing the necessity for mistrial lies with the party seeking it. State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this determination, no
abstract formula should be mechanically applied, and all circumstances should be
taken into account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).
C.
We have examined numerous cases in which the failure to grant a mistrial has
been sustained on appeal. In fact, it is clearly the exception when the reviewing court
finds an abuse of discretion in the denial of a mistrial. However, our review of these
cases does not reveal such extensive observations of prejudice made by the trial
court as in the case at bar. Furthermore, the observations in this case support the
necessity of the granting of a mistrial.
A summary of some of the events and observations made by the trial court
upon the request for mistrial includes the following:
(1) the reaction from the jury was very strong and revealed
“shocked faces”;
(2) it was apparent to the jury that the witness referred to
defendant’s involvement with illicit drugs and not legal
prescription drugs;
(3) due to the nature of the prejudice, an individual voir dire
could not make it any worse;
(4) due to the tendency to find a predisposition to commit
another offense if there is drug involvement, there was
prejudice;
(5) individual voir dire was conducted over objection of both the state and
the defense who felt it would reinforce the effect of the improper
testimony;
2
The trial court did not specify these jurors by name.
8
(6) each juror was individually told by the trial court the drug evidence
should not have been admitted and questioned as to whether the juror
could disregard it;
(7) the improper testimony was explicitly recalled by all
jurors;
(8) two (2) jurors who remained on the panel were at least
somewhat equivocal as to whether the evidence could be
completely disregarded; and
(9) after the individual voir dire, both the prosecution and the
defense agreed “the bell got rung pretty loudly.”
Based upon the express observations of prejudice by the trial court, the
undisputed proof and the agreement at the time of both the state and the defense
that a mistrial should be granted, this Court has no alternative but to find that the trial
court erred in denying the request for mistrial.
ADMISSIBILITY OF PRESENCE OF COCAINE IN VICTIM’S BODY
Next, defendant complains the trial court erred in its exclusion of medical
testimony concerning the presence of cocaine in the victim’s body and its effect upon
the victim’s behavior. We agree.
The pathologist testified that the victim’s blood alcohol concentration was
.23%. In a jury-out hearing, the pathologist further testified concerning the presence
of a small amount of cocaine. Upon being asked in the jury-out hearing whether the
presence of cocaine in addition to the alcohol would make a person more aggressive,
the pathologist testified that, “[o]n most occasions it probably would, but I can’t say
it would on all occasions.” The pathologist noted that cocaine affects different people
in different ways and, in this instance, would be the equivalent of raising the blood
alcohol concentration from .23% to .27%. The trial court found that injecting the
issue of cocaine into the trial would make the testimony more prejudicial than
probative.
Although this is a close issue, we find the testimony should have been
admitted. The sole issue in this case was one of self-defense based upon testimony
that the victim became very violent depending upon his degree of intoxication.
9
Therefore, the presence and extent of any intoxicating substances were relevant. It
would be a jury question as to the weight, if any, to be given to this testimony. We
simply conclude the jury should not have been deprived of the testimony.
This erroneous exclusion of evidence may have been harmless error in and
of itself. However, since the case must be remanded for a new trial due to the failure
to grant a mistrial, this evidence will be admissible at the new trial.
SENTENCING
Defendant contends his maximum 25-year Range I sentence for the Class A
felony of second degree murder was excessive. Although the issue appears moot
since the case must be remanded for retrial, the issue should be addressed for
appellate purposes.
The presumptive sentence for a Class A felony, unlike a Class B, C, D or E
felony, is the midpoint of the range absent enhancement or mitigating factors. Tenn.
Code Ann. § 40-35-210(c). Therefore, the presumptive Range I sentence is twenty
(20) years absent enhancement or mitigating factors.
In this case, however, the court found three (3) enhancement factors; namely,
(1) defendant had a previous history of criminal convictions (Tenn. Code Ann. § 40-
35-114(1)); (2) defendant had a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community (Tenn. Code Ann. § 40-
35-114(8)); and (3) defendant employed a firearm during the commission of the
offense (Tenn. Code Ann. § 40-35-114(9)). These enhancement factors are not
contested by the defendant.
Instead, defendant contends the trial court erred in refusing to find the
following mitigating factors: (1) the defendant acted under strong provocation (Tenn.
Code Ann. § 40-35-113(2)); (2) substantial grounds existed tending to justify the
defendant’s criminal conduct (Tenn. Code Ann. § 40-35-113(3)); and (3) the
defendant committed the offense under such unusual circumstances that it was
10
unlikely that a sustained intent to violate the law motivated his conduct (Tenn. Code
Ann. § 40-35-113(11)). The trial court specifically found that none of these mitigating
factors was supported by the evidence. Our review does not indicate the trial court
erred in rejecting these mitigating factors. Accordingly, the trial court appropriately
sentenced the defendant to the maximum term.
CONCLUSION
The conviction is reversed and the case remanded for a new trial.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
WILLIAM M. BARKER, JUDGE
11