Smith v. State

Court of Criminal Appeals of Tennessee

Smith v. State

554 S.W.2d 648, 1977 Tenn. Crim. App. LEXIS 304

CourtCourt of Criminal Appeals of Tennessee

DecidedMay 16, 1977

StatusPublished

Cited by18 cases

This text of 554 S.W.2d 648 (Smith v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. State, 554 S.W.2d 648, 1977 Tenn. Crim. App. LEXIS 304 (Tenn. Ct. App. 1977).

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Opinion

OPINION

DWYER, Judge.

This appeal in the nature of a writ of error is from the judgment of the Circuit Court of Cheatham County sentencing the appellant, Guy Smith, to death by electrocution for committing the offense of murder in the first degree.

In order to properly evaluate the assignments of error and in particular the assignments relating to the sufficiency of the evidence, we will summarize that evidence as found from our review of the record.

A young, eighteen-year-old soldier was found dead in a ditch alongside Bandy Road in Cheatham County on the morning of January 8, 1975. The primary cause of death was a .45 caliber gunshot wound in the neck with entry of the projectile from an up-down position traversing the chest area severing the Aorta. There were multiple stab wounds also on the young soldier’s body with at least one of such severity as to also have caused death.

The brother of the appellant, Lyle Anthony Smith, testifying as a State’s witness, gave testimony that he saw his brother stab and shoot the young soldier. Anthony had stopped their car which he was driving and his brother pulled the soldier from the back seat, stabbed and shot him. This witness further related that the appellant told him that he killed the soldier because the soldier had seen him kill another person on the Interstate Highway.

The brother’s testimony was fully corroborated by other witnesses for the State who gave them a battery boost when their car *650 stalled in the vicinity on the night of the slaying, who found the identification papers of the deceased which appellant threw from the car, who recovered the .45 caliber pistol from an in-law to whom appellant had returned it, and who matched the shell casing found on the road and the bullet from the body of the deceased with those fired from this weapon during a ballistics test.

The appellant’s brother-in-law testified that during a conversation on January 11, 1975, the appellant said that he and the deceased had been drinking together, had gotten into an argument and the deceased had attacked him with a bayonet which appellant managed to take away and then stab the deceased. The appellant did not mention shooting the deceased.

The appellant, upon surrendering to the authorities the next day, stated that he had killed the young soldier in self-defense.

Premeditation is an essential element of first degree murder and may be inferred by the jury from the facts and circumstances. We will quote the bill of exceptions from the brother’s testimony to determine if that element is present in this record.

“A He stabbed him several times it looked like in the back and he spun around and he stabbed him in the front maybe in the chest and midsection.

“Q All right, now, what was this boy doing at the time he was being stabbed? “A He was incoherent and from where I was at didn’t understand what was happening, he was saying Hey, and you could hear him grunting everytime he was stabbed, I don’t know how many times he stabbed him, and—

“Q And what happened then, just go ahead and tell what happened then.

“A And he spun around and stabbed him in the front and told him to lay down and he stabbed him in the back and he—

“Q Had you moved to any other portion of the car by this time?

“A Yes.

“Q Where did you move to?

“A I had moved about the middle of the trunk.

“Q Could you see on the side where the boy was at this time?

“A Yes I could.

“Q What happened next?

“A He was sitting up with his right arm behind him propping him up and all I could see from the position where I was was a stream of blood coming out and I saw Buddy reach for his gun and he shot him and from where I was it looked like he shot him in the mouth. And when he did he just flopped over.

“Q Are you saying that this boy was outside the car and as I understand he was down in a seated position with his right hand behind him.

“A Yes sir.

“Q And your brother, was he still standing up?

“A Yes sir.

“Q And you say that he shot him. What did he shoot him with?

“A With the 45.

“Q With a 45. And you thought he shot him in the mouth.

“A Right.

“Q Did he shoot him from a up down position.

“A Yes sir.

“Q And what did the boy do then?

“A He just fell over.”

We think from that narration which has been approved by the jury’s verdict the element of premeditation may be found in this record. That verdict has rejected the appellant’s version of self-defense. Under the rule governing appellate review, as outlined in McBee v. State, 213 Tenn. 15, 19, 372 S.W.2d 173 (1963), the burden is upon appellant to show the evidence preponderates against his guilt and in favor of his innocence. This he has not done. The evidence supports the verdict. The assignments relating thereto are accordingly overruled.

He next assigns that the court erred in denying his motion to sequester the jurors during the voir dire so that each juror could be voir dired out of the presence of the *651 others. The appellaAt contends that with the whole venire present and the same questions being propounded and the same responses created a carnival-type atmosphere with resulting community thought. An able and conscientious trial judge had this to say in overruling appellant’s motion:

“My problem is this, that the facilities are scant, we don’t have any place to send the other jurors except out in the courthouse with no place to sit and no place to stay, we just don’t have those kind of facilities here to do that, and I can’t see at this point that it would be . . . if I had some place to send them that would be fine but as it is they would just be milling around down there in the hallway . . At this point there is nothing either in the decisions or statutes involved requiring this, I understand that maybe there is some effort on the part of the criminal law [revision] committee to bring this about . . . but how long do you think it will take us to do this?”

While we are mindful that the proposed Tennessee Rules of Criminal Procedure contemplate the adoption of the principles in his motion on the voir dire, in an excellent opinion by our Presiding Judge Mark A. Walker in State v. Jefferson, Tenn., 529 S.W.2d 674

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