State v. Beasley

699 S.W.2d 565, 1985 Tenn. Crim. App. LEXIS 3135
CourtCourt of Criminal Appeals of Tennessee
DecidedJune 6, 1985
StatusPublished
Cited by14 cases

This text of 699 S.W.2d 565 (State v. Beasley) 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.

Bluebook
State v. Beasley, 699 S.W.2d 565, 1985 Tenn. Crim. App. LEXIS 3135 (Tenn. Ct. App. 1985).

Opinion

OPINION

DWYER, Judge.

Appellant was convicted by a jury of murder in the first degree, T.G.A. § 39-2-202, aggravated assault with a deadly weapon, T.C.A. § 39-2-101, and two counts of assault with intent to commit murder in the first degree involving bodily injury, T.C.A. § 39-2-103. The jury sentenced appellant to life imprisonment for the first-degree murder conviction. Sentencing on the other offenses was stayed, and a motion for new trial as to these offenses was taken under advisement.

Absent an attack on the sufficiency of the evidence, it suffices to relate that on the evening of September 4,1982, appellant stood in the doorway and fired several shots into the Ease On In Tavern in Nashville. Kim Gratton was killed as a result of the fusillade.

Less than an hour before the shooting, appellant had had an altercation with Charles Gregory Byrd, who was playing pool. Appellant had asked to use Mr. Byrd’s pool cue, but Mr. Byrd refused. Appellant became angry, left the tavern and returned armed shortly thereafter. He walked into the tavern and opened fire. Mr. Byrd was grazed across the chest by one of the bullets. Mr. Byrd’s cousin, John West, who was also playing pool, was shot in the back. Anthony Griffin, another man who was playing pool, was shot in the hip.

In his first issue appellant contends that the trial court erred in instructing the jury on felony-murder, where the indict[567]*567ment alleged only “common law” murder and the State first requested the felony-murder instruction at the close of the proof. He asserts that because of the lateness of notice that the State intended to rely on the felony-murder theory, he was denied due process by law.

The Tennessee Supreme Court has held that specification of the felony in a first-degree murder indictment is unnecessary. Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535 (1938). The perpetration of the felony, during which a homicide occurs, is the legal equivalent of premeditation, deliberation and malice. Id. at 538. The felony and the homicide together constitute the one crime of murder and may be charged as ordinary murders are charged. Id. See also State v. Johnson, 661 S.W.2d 854 (Tenn.1983); Tosh v. State, 527 S.W.2d 146 (Tenn.Crim.App.1975). Therefore, appellant was not denied due process or deprived of the opportunity to prepare a defense. Blake v. Morford, 563 F.2d 248 (6th Cir.1977), cert. denied 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978); Sullivan v. State, supra. This issue is overruled.

In his second issue, appellant asserts that the trial court erred in instructing the jury that an element of felony-murder was “that the Defendant specifically intended to commit the alleged murder in the first degree of victims in Counts II or III.” (emphasis added) Counts II and III charged appellant with assault with intent to commit murder in the first degree against Charles Gregory Byrd and Anthony Griffin, respectively. According to appellant this instruction improperly allowed the jury to consider alternatively these underlying alleged felonies and thereby deprived him of his right to a unanimous jury verdict. Tenn.R.Crim.Proc. 31(a).

Appellant relies on United States v. Gipson, 553 F.2d 453 (5th Cir.1977), in which the defendant Gipson was indicted for selling or receiving a stolen vehicle in violation of 18 U.S.C. § 2313. The trial judge gave a special instruction in response to a question asked by the jury. The judge charged as follows:

If each of you is satisfied beyond any reasonable doubt that he did any one of those acts charged, and did it with the requisite state of mind, then there would be a unanimous verdict, and there could be a return of guilty [,] ... even though there may have been disagreement within the jury as to whether it was receiving or storing or what.

Id. at 456.

The fifth circuit stated that the six acts prohibited by 18 U.S.C. § 2313 were receiving, concealing, storing, bartering, selling, or disposing — on a stolen vehicle moving in interstate commerce that- the defendant knew to be stolen. Id. at 458. The court stated that the acts fell into “two distinct conceptual groupings; the first consisting of receiving, concealing, and storing, and the second comprised of bartering, selling, and disposing.” Id. The court found the two conceptual groupings to be sufficiently different such that a jury finding of the actus reus element of the offense might be nonunamimous. Id. 458-59. “[T]he jury was permitted to convict Gipson even though there may have been significant disagreement among the jurors as to what he did; ” therefore, his right to a unanimous jury verdict was violated. Id. See also State v. Creason, 68 N.C.App. 599, 315 S.E.2d 540 (1984) (verdict of guilty for selling or delivering deemed to not positively appear unanimous as the law requires).

Whatever the validity of the Gibson rationale in our state, it clearly is not applicable to the factual situation presented in the case sub judice. Here, the alternative elements dealt with victims, not actus reus elements of the offense. The alternative victims, i.e., Charles Byrd (count II) or Anthony Griffin (count III), are not “conceptually distinct.” We refuse to apply the Gibson rationale when, as here, the potentially divisive theories of guilt are not “conceptually distinct.” United States v. McGuire, 744 F.2d 1197, 1202 (6th Cir.1984); See also United States v. Zeidman, 540 F.2d 314 (7th Cir.1976) (conviction after jury instruction allowing guilty verdict if defendant “devised a scheme to defraud at [568]*568least the creditor or the debtor” upheld). This issue is overruled.

In his next issue, appellant contends that the trial court erred in denying his motion to suppress his post-arrest statements. First, he asserts that he was arrested without probable cause.

Officer T.A. Mason was informed by radio dispatch that a shooting had occurred at a tavern at Nolensville Road and that appellant was the suspect and had fled the scene in a black-over-red Ford. Officer Mason, having been previously acquainted with appellant and knowing appellant’s address, proceeded there. When he arrived, another officer arrived, shining his bright-lights on the front of the house.

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Bluebook (online)
699 S.W.2d 565, 1985 Tenn. Crim. App. LEXIS 3135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beasley-tenncrimapp-1985.