Edwards v. State

540 S.W.2d 641, 1976 Tenn. LEXIS 564

• Court: Tennessee Supreme Court
• Decided: May 17, 1976
• Status: Published

Opinions

OPINION

COOPER, Chief Justice.

Petitioner, George S. Edwards, was indicted for murder in the first degree for the June 7, 1972, killing of his sister, Elizabeth (Betty) A. Edwards. Petitioner admitted he had shot and killed his sister on the date alleged in the indictment, and interposed the defense of insanity at the time of commission of the act. The jury found petitioner guilty of murder in the second degree and fixed his punishment at ten years in the penitentiary, and sentence was pronounced accordingly. On appeal to the Court of Criminal Appeals, the majority of the court found petitioner’s thirty-six assignments of error to be without merit and affirmed the conviction. One member of the Court of Criminal Appeals dissented, he being of the opinion that the evidence preponderated against the jury’s finding on the issue of insanity. This court granted certio-rari to consider all assignments of error, and particularly to determine whether the evidence preponderated against the jury’s verdict.

The record is replete with testimony, both expert and lay, on the issue of insanity. Petitioner was described by friends and relatives who testified as a “loner,” somewhat withdrawn and not gregarious. His parents and his wife both testified that after petitioner’s return from Vietnam in 1969 he developed peculiarities in his personal traits, and also had a problem with alcohol. His wife testified that when petitioner was drinking his abnormalities were more apparent, and that on one occasion in October, 1971, he was particularly violent toward her, over a relatively small matter, after he had been drinking. At that time Mrs. Edwards consulted with her minister, separated from petitioner, and agreed to a reconciliation only after petitioner agreed to seek psychiatric help. The minister recommended Dr. Parks Walker of Memphis. Petitioner accepted the recommendation and became a patient of Dr. Walker in October, 1971. The doctor testified that petitioner had a schizophrenic personality and was suffering from schizophrenia. He further testified that petitioner responded to antidepressant drugs and his condition improved. Petitioner was still under the care of Dr. Walker at the time of the homicide in June, 1972, although petitioner did not see the doctor very often during the spring months of 1972.

Lay testimony showed petitioner’s personality quirks became more pronounced during the spring of 1972, particularly after petitioner quit taking his tranquilizers. Both his parents and a business associate testified they were concerned about him. He was withdrawn, sullen, lost initiative and for three weeks prior to the homicide hardly worked at all. During that period he and his wife moved into a new home, which he was also going to use as an office from which to operate his business as a manufacturer’s agent. The witnesses stated that during this period of time the petitioner would frequently have a “glassy” stare and a quizzical or smirking expression on his face at inappropriate times. There are instances in the record indicating that petitioner was domineering and authoritative in the home, and on one occasion he forcibly cut his young stepson’s “long” hair. However, those who were close to him, including family members, felt that petitioner knew “right from wrong” at all times.

On the day of the homicide, Mrs. Edwards, petitioner’s wife, was out of the house from noon until about 10:45 p.m., during the afternoon and evening, and he seemed very angry with her for being away from home all day. At about dinner time the parents of petitioner stopped at petitioner’s house and invited petitioner and the two stepchildren of petitioner who were at home that evening to eat with them. The stepchildren accepted and went to the home of the parents of petitioner for dinner and to spend the night. Petitioner, however, declined because he was working on curtains in his new office. Both his parents and several other persons who saw petitioner during the afternoon and evening of the homicide said that he appeared somewhat withdrawn, but he was not hostile. He recognized everyone and no one detected any particular abnormality in his conduct. He had been drinking beer throughout the afternoon, but did not appear to be intoxicated. There is also testimony in the record that his sister, the victim of the homicide, had called him on one occasion during the evening, and was critical of him because of the way he had been treating his wife, particularly when he was drinking.

When petitioner’s wife returned home, she found petitioner sitting on the porch with a can of beer in his hand. Mrs. Edwards sat next to him and asked if they could talk. Petitioner responded, “Well, it’s all programmed out,” and “I will do my talking to you when we get in the house.” Shortly thereafter, petitioner’s sister drove up, apparently unexpectedly. Mrs. Edwards invited Betty in for a beer. Betty sat down on the steps with Mrs. Edwards and spoke to petitioner, who did not respond. Finally, Betty asked her brother to get her a beer.

Mrs. Edwards testified that when petitioner went into the house, he walked from the kitchen hallway into the bedroom hallway and then back to the front door, and that she noticed he had his right hand behind his back, apparently concealing something. Mrs. Edwards leaped from the porch and said to Betty: “Get up off of the porch. I don’t know what he has got in his hand. It looks like he may have that gun out.” Betty, apparently not frightened by petitioner’s behavior, again asked for her beer. Mrs. Edwards testified that she then watched petitioner walk back into the bedroom hallway and that she heard the sound of a drawer closing in the bedroom. When defendant returned to the porch with the beer for Betty, he sat down on the steps with her and entered into conversation.

Shortly thereafter, petitioner and his wife entered the house and petitioner shut the door leaving his sister on the porch. Mrs. Edwards let Betty into the house and they went to the bathroom to get an item which Betty had asked to borrow. Petitioner followed and stood blocking the bathroom doorway when his wife attempted to exit. Petitioner then went into the bedroom, and when his wife and sister followed, they found him lying on the bed. Mrs. Edwards testified that petitioner got up from the bed, pulled a pistol out of a bureau drawer and, without saying a word, fired a single shot at his sister. His wife ran from the house, and the petitioner fired two shots at her, narrowly missing her. Mrs. Edwards went to the house of a neighbor and had them summon the police and an ambulance. She also had the neighbors call Dr. Walker.

Immediately after the shooting and before the police arrived on the scene, petitioner called his mother and told her that he had shot his sister and was sorry. When the police arrived, he at first told them that his wife had shot herself. Later, he told the investigating officers that his “sister” had shot herself. He gave a third statement to the officers within fifteen minutes of the killing stating that he had killed his sister because she had sinned too much and that she was better off dead. He further stated that she was scolding him for mistreating his wife and that when he could not take it anymore, he shot her.

Following the homicide, Dr. Walker engaged the services of Dr. Garo Aivazian, Chairman of the Department of Psychiatry at the University of Tennessee Medical School, and they together evaluated the petitioner over the next several months. Both diagnosed petitioner’s condition as schizophrenia. Both testified that in their opinion on the date of the shooting the petitioner was insane within the definition of the M’Naughten rule. Both expressed the opinion that petitioner was sane at the time of the trial. Both admitted that there were times when petitioner would know right from wrong. And, on cross-examination, Dr. Aivazian testified that petitioner was not psychotic when he first saw him on June 12, 1972, and also expressed the opinion that petitioner knew what was going on around him during the day of the homicide on June 7, 1972. There was also evidence of a history of mental illness in petitioner’s family, going back several generations on both sides. The extent and nature of the illness is not shown other than by lay testimony.

Mrs. Nona Owensby, a licensed psychological examiner employed at Central State Hospital, was called as a rebuttal witness by the state. She testified that based upon her observation of the petitioner and study of his records she was of the opinion that petitioner was not psychotic or mentally deranged at the time of the shooting, and did know right from wrong. She expressed the further opinion that petitioner was feigning mental illness in an effort to avoid criminal responsibility, and testified to observations and conversations with petitioner which led her to this belief.

The petitioner offered in surrebuttal Dr. Fidelholtz, Director of the Forensics Services Division at Central State Hospital. He testified that the petitioner in his opinion was not mentally ill at the time of the trial. But said he had no opinion as to petitioner’s mental capacity on the date of the homicide, nor was he aware that any member of his staff, which included Mrs. Owensby, had expressed any such opinion.

Where there is evidence pro and con on the issue of sanity of the person charged with a crime, as there is in this case, the burden is on the state to prove that petitioner had the mental ability to distinguish between right and wrong, and knew the nature and quality of his act at the time of the act and with respect to the act. Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299 (1963); Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149 (1945). This burden can be met by the state through the introduction of expert testimony on the issue, or through lay testimony where a proper foundation for the expressing of an opinion is laid, or through the showing of acts or statements of the petitioner, at or very near the time of the commission of the crime, which are consistent with sanity and inconsistent with insanity. See Brooks v. State, 489 S.W.2d 70 (Tenn.Cr.App.1972); Wilcox v. State, 94 Tenn. 106, 28 S.W. 312 (1896); Whitmire v. State, 490 S.W.2d 179 (Tenn.Cr.App.1972).

Petitioner insists the state failed to carry its burden and that the evidence preponderated against the jury’s finding that petitioner was sane at the time of the killing. Implicit in petitioner’s argument is the insistence that the testimony of the psychiatrists on this issue must be accepted over lay testimony. Petitioner also stresses the testimony of his wife and family concerning his disturbed mental condition in the days before the killing and the history of mental illness in his family, and the lack of an apparent motive for his actions.

The jury is not required to accept testimony of a psychiatrist on the issue of sanity to the exclusion of lay testimony or to the exclusion of evidence of the actions of the petitioner inconsistent with sanity. If it were, as pointed out in Brooks v. State, supra, “[it] would effectively preempt our jury trial system on sanity issues and replace it with a system of trial by psychiatrists’ opinions. We are unwilling, even if we had the power, to saddle society with so basic a change in our system of criminal jurisprudence.”

In this state, “it is settled beyond question that the weight and value of expert testimony is for the jury and must be received with caution. Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149. This applies to the expert opinions of medical men. Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S.W.2d 945. Where there is any conflict between expert testimony and the testimony as to the facts, the jury is not bound to accept expert testimony in preference to other testimony, and must determine the weight and credibility of each in the light of all the facts shown in case. Act-O-Lane Gas Service Co. v. Clinton, 35 Tenn.App. 442, 245 S.W.2d 795; East Tennessee Natural Gas Co. v. Peltz, 38 Tenn. App. 100, 270 S.W.2d 591. Expert medical opinion regarding the functioning of the human body must always be more or less speculative. Patterson Transfer Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182; Great American Indemnity Company v. Friddell, 198 Tenn. 360, 280 S.W.2d 908.” Sparkman v. State, Tenn.Cr.App., 469 S.W.2d 692, 696 (1970).

In weighing the testimony of the psychiatrists in this case, the jury was faced with the fact that neither saw the petitioner on the day of the shooting. Dr. Walker saw the petitioner five days before the shooting and did not consider petitioner’s mental condition serious enough to require treatment other than the taking of tranquilizers. The next time he saw petitioner was two days after the killing and Dr. Walker testified that petitioner was not psychotic at that time. Dr. Aivazian first saw petitioner five days after the killing and testified that petitioner was not psychotic at that time or at any other time he saw petitioner. On the other hand, lay witnesses who saw petitioner before the shooting testified that petitioner appeared normal and capable of distinguishing between right and wrong. And even more significant than testimony of the lay observers was the fact that before the police arrived on the scene, petitioner telephoned his mother and told her that he had shot Betty and was sorry.

The jury’s verdict indicates they found the state carried its burden of showing that petitioner was sane at the time of the homicide. In reviewing this finding to see if it comports with the evidence, we are bound by the rule that the verdict of the jury, approved by the trial judge accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We have read the record carefully keeping in mind the limits set forth in the McBee rule, and have concluded the evidence does not preponderate against the jury’s finding that the petitioner, the moment he shot and killed his sister, knew what he was doing and knew right from wrong and that his acts were wrong.

Assignments five and six have to do with the order of proof. The trial court did not require the state to introduce all its evidence on the issue of insanity as part of its proof in chief, but permitted the state to introduce evidence on the issue in rebuttal to the testimony introduced by petitioner. The defense claims that it was seriously prejudiced by this. We find no merit in these assignments. In the first place the order of proof is more or less the accepted order in cases such as this. In the second place the matter lies in the discretion of the trial judge, and no conceivable prejudice to the defense has been demonstrated by reason of the order of proof which was followed. Essary v. State, 210 Tenn. 220, 357 S.W.2d 342 (1962); Nichols v. State, 200 Tenn. 65, 289 S.W.2d 849 (1956).

In assignments twelve and thirteen, petitioner insists that the state should have been required to call Dr. Fidelholtz as its witness or that he should have been called as a court’s witness. The trial court can not dictate the witnesses to be called by the state. He does have the power to call a witness as the court’s witness, but under the circumstances of this case, it would have been error for him to do so. See Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967). Further, it should be noted that the witness, who testified in surrebuttal, was candid and frank in everything he said and was generally favorable to the defense in his testimony. There certainly could be no prejudicial error with regard to the manner in which this witness was called.

In assignment fourteen petitioner insists the trial court erred in allowing lay witnesses to express an opinion on the mental state of the defendant. Petitioner contends there was insufficient foundation laid to qualify these witnesses to express an opinion, and also that the questions asked failed to adequately state the M’Naghten rule. On reviewing the record, we find that petitioner did not object either to the form or content of the questions asked lay witnesses, nor did he question the adequacy of the foundation laid to qualify the witnesses to express an opinion on the issue of sanity. But, aside from this failure to object to the testimony, the record fairly shows that the opinions on petitioner’s sanity voiced by lay witnesses were based upon their personal knowledge and observation as required by Atkins v. State, 119 Tenn. 458, 105 S.W.2d 353, and Wilcox v. State, 94 Tenn. 106, 28 S.W.2d 312.

There are a number of assignments of error questioning the competency of Mrs. Owensby to give an expert opinion, and her qualifications as an expert witness. There are also assignments to the effect that her testimony involved privileged communications made to her by the petitioner. Interestingly enough, no objection was made by counsel for the petitioner either as to the qualifications of Mrs. Owensby or as to the content of her testimony. Indeed, at one point, counsel conceded that she was qualified and that he had no questions as to her qualifications. In their brief filed in this court, counsel for petitioner have appended newspaper articles and other items tending to show that Mrs. Ownsby has since been discredited and has been discharged by the state. The findings of the Grievance Procedure Board of Review Decision reinstating Mrs. Owensby as an employee of Central State Hospital have also been tendered to this court for consideration. Neither of these matters appear in the trial record and, consequently, we cannot take cognizance of them. We would note, however, that most of the testimony of Mrs. Owens was factual, being based on her observation of petitioner and on statements by petitioner, and would be admissible whether Mrs. Owens was an expert witness or not.

Throughout the trial, counsel for the petitioner sought to have the trial court give instructions to the jury as to what the legal effect of a finding of not guilty by reason of insanity would be. Specifically they sought to have the court charge the jury from the Tennessee Code as to the statutes on hospitalization of a person found to be mentally ill. Numerous special requests were tendered on this point, as well as repeated requests throughout the trial. The trial court declined to give these instructions, because he felt that it was not the jury’s prerogative to be concerned about the legal effect of their verdict, but only to make a finding on the evidence presented to them. This action of the trial judge has been assigned as error.

Authorities in other states on this point are conflicting. In some states by statute the trial judge is required to instruct the jury as to the effect of a verdict of not guilty by reason of insanity. We do not have such a statute, however, and Tennessee law generally is to the effect that the trial judge is not supposed to tell the jury what the legal effect of their verdict is. See Harbison v. Briggs Brothers Paint Manufacturing Company, 209 Tenn. 534, 354 S.W.2d 464 (1962). It is not relevant to the issue of petitioner’s guilt or innocence. And, as pointed out by the trial judge in colloquy with counsel, there were so many options and alternatives available, depending upon the mental condition of the accused, it would be highly conjectural and would involve the jury in speculation as to what might happen to the accused. Counsel for the defendant did, in their final arguments, strongly suggest that the accused would not be released outright, but that he would be hospitalized if found not guilty by reason of insanity. Then too, the' statutory provision for commitment of persons found not guilty by reason of insanity, T.C.A. 33-709, is not a mandatory provision. It simply provides that the District Attorney may initiate judicial hospitalization procedures under T.C.A. 33-603 or 604 and that the court may order the defendant found not guilty by reason of insanity hospitalized upon the certification of two licensed physicians that the defendant is substantially likely to injure himself or others. And, in view of the fact that petitioner relied on the defense of insanity at the time of the offense with which he was charged, and the further fact that all evidence is to the effect that he is now competent, no prejudice could result to petitioner by the refusal of the trial court to instruct the jury as requested in this case.

Petitioner also contends the trial court erred in refusing to permit counsel, on voir dire, “to go into the meaning and effect of a verdict of not guilty by reason of insanity.” We agree with the Court of Criminal Appeals that “the purpose of voir dire is stated in the case of Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, and the trial court did not abuse his discretion in controlling the extent of the voir dire examination.”

There is an assignment of error, Number eleven, with regard to the final argument of the District Attorney General. It is claimed that the District Attorney inferred that the accused would go free if found not guilty by reason of insanity. While this is a possible inference from the argument, the remarks were actually directed at the state’s theory that the accused was simulating mental illness in order to escape punishment. Further, no objection was made to the argument, and defense had the opportunity to and did reply to the argument. Under these circumstances, we see no prejudicial error in the argument of the District Attorney General.

Numerous special requests for jury instructions were tendered to the trial court and were refused. Each of the requests is the subject of an assignment of error. With the exception of those pertaining to the legal effect of a verdict of not guilty by reason of insanity, which has been heretofore mentioned, all of the special requests were adequately covered in the general charge given by the trial judge to the jury. It is not error to refuse a special request where the charge as given fully and fairly states the applicable law. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962).

Assignments of error twenty-seven through twenty-nine and assignments thirty-one and thirty-two involve the trial court’s instructions to the jury. The Court of Criminal Appeals discussed each of these assignments in the majority opinion and concluded that the charge was without material error. No attempt was made in the brief filed in behalf of petitioner to show specifically where the Court of Criminal Appeals was in error in its conclusion. Despite this, we have considered the assignments anew and find ourselves in full agreement with the Court of Criminal Appeals that the charge given by the trial court was complete and accurate.

We also agree with the Court of Criminal Appeals that the trial court acted properly in considering a question asked by a juror, on the jury’s return to the courtroom during deliberation. “A juror asked the court a question dealing with insanity, and the court refused to answer, saying instead that it was a question for the jury to determine from the instructions and the evidence. This was not error, because in view of the complete instructions on insanity already given, any additional instruction would have served only to confuse the jury or unfairly emphasize a certain point of law. Furthermore, since the court did not give any instruction, he was at liberty to make an oral response, without reducing it to writing.”

Supplemental briefs have been filed on behalf of petitioner, asserting that the trial court was in error in the method of selecting the grand jury and the trial jury in that there had been a systematic exclusion of women from the jurys. This matter was mentioned briefly in the motion for a new trial, but there is no evidentiary record upon which systematic exclusion of women could be found. We do not have any record at all with regard to the method of the selection of the grand jurors, and the voir dire selection of the jurors in the present case contains no exceptions or objections with regard to the exclusion of women. There being no factual basis for this assignment, it must be overruled.

Petitioner’s conviction is sustained, and the opinion of the Court of Criminal Appeals is affirmed.

HARBISON, J., and DYER, Special Justice, concur. HENRY and FONES, JJ., dissent.