State v. Franklin ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION August 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9706-CR-00219
Appellee, )
) Cumberland County
)
) Honorable Leon C. Burns, Jr., Judge
)
RICHARD LEE FRANKLIN, ) (Second Degree Murder)
)
Appellant. )
FOR THE APPELLEE: FOR THE APPELLANT
Michael M. Raulston John Knox Walkup
Attorney at Law Attorney General & Reporter
4701 Hixson Pike
Hixson, TN 37343-4818 Michael J. Fahey, II
Assistant Attorney General
Larry M. Warner Criminal Justice Division
Attorney at Law 425 Fifth Avenue N
204 North Main Street Nashville, TN 37243
Crossville, TN 38557
William Edward Gibson
District Attorney General
David A. Patterson
Assistant District Attorney General
145 S Jefferson Avenue
Cookeville, TN 38501-3424
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Richard Lee Franklin, the appellant, was originally convicted of first
degree murder in the shooting death of David Kirkland. The trial court granted
the appellant’s motion for a new trial because of procedural errors. The
appellant was retried and convicted by a jury of second degree murder in the
Cumberland County Criminal Court. He was sentenced to twenty-two years in
the Tennessee Department of Correction. He appeals and raises ten issues for
our review. We affirm the judgment of the trial court.
The facts as established by the state’s witnesses are as follows. During
an evening in November 1992, David Kirkland, the victim, and his girlfriend,
Michelle Burnette, went to Bob’s Bar in Cumberland County. Once inside, they
then began playing pool against the appellant and his wife. The bet was for a
beer. When Michelle failed to call a pocket on her first shot, the appellant’s wife
swore at her. As the game continued, the appellant’s wife continued to swear at
the victim and his girlfriend under her breath. After losing the game, the victim
and his girlfriend went to the bar to buy beers for the appellant and his wife. The
appellant’s wife approached them and said, “F--- you.” The victim then
responded, “You can take those ‘f--- yous’ and stick them up your ass!” The
appellant heard the victim’s comment and began to approach the victim and
Michelle who were moving toward the front door.
Larry Walker, a friend of the victim’s, saw the appellant moving toward the
victim with a cue stick. Walker confronted the appellant and the two began
fighting. Willard Kennedy, the bartender, pulled Walker off the appellant. The
appellant yelled at his wife to get his gun and then ran outside of the bar. The
bartender locked the front door. The appellant went to his vehicle, ripped open
the glove compartment, and got his weapon.
In the meantime, the bartender broke up the fight and ordered everyone
to leave the bar. As the bartender opened the front door, the appellant pushed
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his way inside and asked, “Where did the son of a bitch go?” The victim, who
was beside the door, said, “Here I am.” The appellant reached around Kennedy,
lifted his gun, and shot the victim in the chest. The victim fell to the floor and
was dead within moments.
According to the appellant’s testimony, the victim started the verbal
confrontation. The appellant testified that he went to get his gun because his
wife was being beaten. The appellant testified that the gun discharged
accidentally when the victim struck the appellant with a cue stick. He was
vigorously cross-examined by the state. The jury accredited the testimony of the
state’s witnesses.
In his first issue, the appellant contends that his retrial violates his right to
be free from double jeopardy. He contends that a defendant who has been
convicted cannot be retried on the same charge when the verdict is set aside
due to errors which were no fault of the defendant. W e disagree. “The double
jeopardy guarantee affords three separate constitutional protections against: 1)
a second prosecution for the same offense after acquittal; 2) a second
prosecution for the same offense after conviction; and 3) multiple punishments
for the same offense.” State v. Harris, 919 S.W.2d 2d 323, 328 (Tenn. 1996)
(citing North Carolina v. Pearce, 395 U.S. 711, 716 (1969); State v. Mounce, 859
S.W.2d 319, 321 (Tenn.1993)). When a defendant obtains a new trial on some
basis other than insufficiency of the evidence, double jeopardy does not preclude
a retrial of the defendant. Id. This issue is without merit.
In his second issue, the appellant argues that the trial court made
improper comments during voir dire. In response to a line of questioning by the
defense, a prospective juror asked how jurors were to judge the case if the state
provided witnesses under oath and the defense presented no witnesses. In
response to the question, the trial court explained that a defense can be
presented through the cross-examination of the state’s witnesses, that the jury
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was responsible for assessing a witness’ credibility, and that the defendant did
not need to testify in order to deny the existence of the elements of the crime.
As the state argues, the appellant has waived this issue by failing to object to the
trial court’s remarks. T.R.A.P. 36(a); State v. Renner, 912 S.W.2d 701, 705
(Tenn. 1995). Furthermore, we find no error in the court’s remarks, the aim of
which was to ensure that the appellant received a fair trial.
The appellant argues in issues three and four that the trial court erred in
failing to direct a verdict of acquittal at the close of the state’s proof and at the
close of all the proof. The appellant primarily argues that the state failed to
establish that the cause of the victim’s death was the gunshot wound inflicted by
the appellant. This Court will not disturb a verdict of guilt for lack of sufficient
evidence unless the facts contained in the record and the inferences, which may
be drawn from the facts, are insufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).
The state introduced through the testimony of police investigator, Benton
Threet, a certified copy of the death certificate of the victim from the Cumberland
County Health Department which shows the cause of death as a “gunshot
wound to the chest.” The death certificate was signed by pathologist, Dr. James
Barnawell. The state also presented the testimony of Michelle Burnette, Willard
Kennedy, and Larry Walker to establish that the appellant shot and killed the
victim. The appellant contends that the evidence of causation is insufficient
because the death certificate is not trustworthy. He explains that Dr. Barnawell
testified that he did not examine the deceased, was not in town when the victim
was at the Cumberland County Medical Center, and did not perform an autopsy.
The appellant relies on Dr. Barnawell’s testimony that there could be other
causes of death such as severe or sudden myocardial infarction, brain stem
hemorrhage, or stroke. Dr. Barnawell also testified that, after looking at all the
medical records and photos, he determined and was sure that the cause of
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death was a gunshot wound to the chest. Dr. Barnawell was entitled to rely on
the victim’s history and case file to form his opinion. Cole v. State, 512 S.W.2d
598, 601 (Tenn. Crim. App. 1974). Additionally, the lay testimony alone is
sufficient to establish that the victim died of a gunshot wound. The cause of
death need not be proven by expert testimony. McCord v. State, 278 S.W.2d
689, 691 (Tenn. 1955); Bryant v. State, 503 S.W.2d 955, 958 (Tenn. Crim. App.
1973). The proof is overwhelming that the victim died from the gunshot wound
inflicted by the appellant. These issues are without merit.
In issue five, the appellant contends that the trial court erred in admitting
the death certificate as proof of the cause of death. The appellant objected to
the admission of the certificate because the methods used to prepare the
information in the certificate were untrustworthy. The appellant offered the
testimony of Dr. Barnawell in support of his objection. As previously stated, Dr.
Barnawell did not perform an autopsy on the deceased. Dr. Barnawell testified
that he relied on the medical examiner’s report and the emergency room report
to establish his opinion that the victim died of a gunshot to the chest. We find
no error with the court’s admission of the death certificate. The state maintains
that the certificate is an exception to the hearsay rule under Tennessee Rule of
Evidence 803(8). We agree. The certificate is a record of the Tennessee
Department of Public Health. Dr. Barnawell’s testimony verified that the death
certificate offered into evidence was the same certificate that he completed and
signed. This issue is without merit.
In issue six, the appellant claims that the trial court erred in admitting a
diagram of the crime scene into evidence which was introduced through the
testimony of Investigator Threet. The appellant objected to the admission of the
diagram because it was not drawn to scale. He cites Tennessee Rule of
Evidence 801, but he does not explain why the alleged error requires reversal.
Threet testified that the diagram was not drawn to scale but that it did accurately
depict the location of certain items as he observed them. There was no abuse of
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discretion by the trial court in admitting the diagram. There is no showing of
prejudicial error. This issue is without merit.
In issue seven, the appellant contends that the trial court improperly
instructed the jury that they may infer the cause of death. The court instructed
the jury that when a wound from which death might ensue is inflicted with the
intent to kill, you may infer that death following that wound was caused by such
wound. If one so infers, the defendant should show that death resulted from
some other cause not attributable to the defendant. The court further instructed
the jury that the burden to prove the cause of death never shifts from the state.
The jury instructions read as a whole fairly informs the jury of the applicable law.
There is no showing of prejudicial error. The evidence of the cause of death was
overwhelming. This issue is without merit.
In issue eight, the appellant argues that during closing argument, the state
improperly argued that the appellant was presumed guilty. The state argued that
“And when you go back to the jury room, that witness that goes back with you,
which is the presumption of guilt, he has a hard time going with you.”
As the state argues, the appellant has waived this issue by failing to object to
the court’s remarks. Moreover, the state’s remark did not likely affect the result
of the appellant’s trial because the trial court instructed the jury that the appellant
was presumed innocent and because the evidence of the appellant’s guilt was
overwhelming. This issue is without merit.
In issue nine, the appellant argues that the trial court erred in not allowing
the appellant to voir dire the jurors individually about their knowledge of the case.
Before trial, a newspaper article about upcoming murder trials appeared on the
front page of a local paper. The article mentioned that the appellant had been
tried and convicted of first degree murder in his first trial. Citing the article, the
appellant made a motion for individual voir dire. To save time, the court said that
it would prefer the defense to voir dire on all issues except knowledge of the
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case, and then proceed with individual voir dire of the jurors. The defense
counsel agreed to the procedure and made no objection. Later, counsel
requested, and was granted, the chance to individually voir dire the jurors as to
specific knowledge of the case. The trial court allowed individual voir dire. We
fail to understand how the court denied the appellant the right to individually voir
dire prospective jurors. There is nothing in the record, including an objection,
and nothing in the appellant’s brief beyond a conclusory statement, to indicate
any prejudicial error. This issue is without merit.
Finally, the appellant argues that the trial court erred in failing to apply
various mitigating circumstances. We assume that the appellant refers to his
account of the shooting as “I got hit in the face and the gun went off.” The state
interprets the appellant’s argument to be that the trial court erred in failing to
consider that the appellant’s tooth was knocked out during the barroom brawl as
a mitigating factor in determining the appellant’s sentence. Appellant’s brief on
this issue is inadequate. We find no merit to either interpretation of the
appellant’s grievance. The appellant’s sentence is affirmed.
Finding no reversible error, we affirm the judgment of the trial court which
approved the conviction and the sentence.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
JERRY L. SMITH, Judge
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_____________________________
CURWOOD W ITT, Judge
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