*1 thаt, entitled, Medicine, Dr. testified in his official “Legal Whittle of a Pathol- book capacity County as assistant Knox medical ogy Toxicology,” which he read examiner—a he had held for 10 appear the content of which does not years, he examined bodies of the vic- matter, As the doc- record. we view experience He experience tims. related extensive tor’s training and vast post-mortem gunshot knowledge numerous examinations of and his fire- wounds gunshot express opinion victims to determine the cause of arms qualified him to an death, concerning whether self-inflicted or otherwise. the nature and amount of force Sotka, particular necessary eye damage reference to Mrs. to inflict the With eye cavity and the socket which he de- described the location bullet scribed, notwithstanding not a bal- the back of her head and was wound expert opinion through her listics exited left such. bullet eye, explaining reasons view. prejudicial There is no errоr in this Upon counsel, objection by defense fair The defendant has had a record. jury court excused the when the State judgments Let of the trial court trial. opinion asked if he had an Whittle Dr. be affirmed. or not whether Mrs. Sotka’s wound testimony by After further self-inflicted. WALKER, O’BRIEN, J., P. J., apart arguments the doctor and of counsel concur. jury, from the the court sustained the de- objection
fendant’s and ruled that doc- express permitted tor would not be opinion as to whether Mrs.
Sotka’s bullet wound was self-inflicted. jury present, rеsponse to a
With juror’s question about the wound eye, left Dr. testified without Whittle “ objection fibers . BAXTER, Plaintiff-in-Error, Robert splintered bone were outward which indi- from inside cates force was Tennessee, STATE of Defendant-in-Error. prosecution out.” asked him When counsel type about the it take to force would Appeals Court of Criminal of Tennessee. eye cavity, blast out this and its orbital de- May 11, 1973. objection fense and the doc- overruled tor stated that considerable force would by Supreme Cеrtiorari Denied Court required fragment and that “A of bone Nov. propelled being not hit and break could it way, fragment it this of bone if because
propelled by something else would be
quickly deviated to the other side. 'It has self-propelling A force itself. missile self-propelling fragment A has a force. propulsion bone has the of what force it, force, self-propelling hit so it has no therefore, easily is deviated.” further extensive cross-ex
Under counsel, amination defense Dr. Whittle agreed head entering that a bullet deflected, agreed ricochet or be and also designated page statements on a made *2 Etheridge, P. Diamond and H. T. James Jackson, for
Jr., plaintiff-in-error. Gen., Pack, Atty. and Robert M. David Nashville, Gen., Roberts, Atty. Asst. H. Gen., Atty. LaFon, Dist. Asst. Whit Jack- son, for defendant-in-error.
OPINION
OLIVER, Judge. of first
Convicted penitentiary, years sentenced appeal in duly perfected has Baxter this Court. a writ error nature of re- complaint The defendant’s the evidence sufficiency of spect to the reflected verdict sustain warrant charging of Error Assignment in his first killing of there was evidence deliberate, “willful, mali- the deceased cious, premeditated.” con- necessitates Assignment
Since evidence, we material sideration 1:00 Shortly briefly. summarize 1971, September Saturday, p.m. garage at a inquired defendant Jackson whether the Attaway, Norris surrendered at the Police Station Jackson working after, there. From there he stated, drove the on October intervening city dump Canada, half-mile York, had flown to to New where the deceased operating a bull- back to Jackson. After stopping dozer. car in a record, According to this *3 highway, headed toward the Baxter shot had left his wife nine times she had and single the deceased twice barrel left him once marriage within their of a shotgun. crawling The deceased started years. little more than her two He left his and toward his co-worker hands knees of 1971 because he did not want to June asking help. him for co-worker When this pay delivery the doctor bill for of their deceased, up ran to meet got he and baby, and did not return until weeks two ran his him to co-worker and embraced baby July 28, after the was born on and got and him so that behind the co-worker during that time he did not call her or fur- between him and the was defendant. The any her support nish living while she was defendant then to ordered this co-worker parents. with her They separat- were still get the deceased from him said and behind ed at killing. the time of this He had going he was Notwithstanding shoot. asked her times one two to come back the deceased and his co-worker both were agreed to him and she to do so on the begging the defendant not to shoot him Wednesday shooting before the if he again, away when the from deceased broke house, get but thereafter he drew fell, running his co-worker and started and a knife on her. He had accused her sever- got the defendant re- out of his car and al of running times around with the de- shotgun loaded the and shot the deceased men, ceased and other “That’s all he ever again. And although both the deceased talked about somebody.” was On the plead and the co-worker continued to Wednesday before this he homicide accused him, the defendant not to he deliber- shoot her of keeping company with the deceased. ately shotgun re-loaded his and shot the She testified that on four or five occasions car, again. deceased heAs returned to his the deceased took her home when got she Baxter told the deceased that he would off from midnight work at she while was come give baсk and him if some more he living parents, with her since this was on wife, speaking heard of him to his and home, way his and she had never run give threatened to the co-worker “some of around with kept him or company with it” if telling he of him heard what had oc- him or any him; affair with got curred. He then in his car and drove last time he took her home was a week or away. expired hospi- The deceased at the killed; two before he was that one time night.
tal that
before
baby
was born the defendant
After shooting the
thе defend-
came to the cafe and
she refused
ride
ant went to the cafe
home
where
wife was
with him
his
because
said
he
he was
employed
going
and told her
whip her,
he had
the de-
shot
and
then
he
asked the
city dump.
home;
ceased four times at the
deceased to
He
take her
that she had
then went
got
shotgun
outside and
his
and
known
years
the deceased four or five
and
helped
came back
if
one time
asked her
she wanted
her
her
get
car started
there,
to die
on a
through
grocery
lot;
and then
parking
shot a hole
store
the wall. He then ordered all
defendant
the custom-
asked her numerous times to
quit
ers out of
get
the cafe and made her
her
job
waitress
and she told him she
car with him
gun
going
and then fired the
was not
into
to do so because she had to
the air and told her
work
he was
baby.
take
herself and the
her out into the
Wednesday
woods and kill
her. She
he tried to
escaped
get
stopped
stop sign.
when he
the manager
at a
opened
to fire her and
gave
He
appearance
being
intoxicat-
knife and started around the end of the
ed, although
drinking.
bar threatening
he had been
He
manager’s
to cut the
head
pro-
manager
employment
methodically
place
off,
con-
stopped
but
when
times, re-loading
four
pistol.
him
ceeded
shoot
fronted him with
time,
being
gun
last two shots
each
testify. He
did not
lay
fired
the deceased
wounded
while
Les,
brothers
presented his
James
helpless upon
ground begging
Morphias and
Phillip M.
brothers-in-law
and de-
premeditation
life. The element of
cousin Mrs.
and his
Thomas L. Robertson
may
the cir-
be inferred from
liberation
Williams,
Reba
Elaine Rose
Mrs.
Tooley
killing.
cumstances of the
testimony
whose collective
De-
Tenn.Cr.App.
ertheless, in the defend promiscuity of no merit accusations There is the trial Assignment complaining with the deceased and other men. There is ant’s that proof erroneously his motion for judge in this record that the defendant’s overruled motion, orally was he made wife ever or that had a That unfaithful continuance. any contrary trial had knowledge by jury whatever to the or counsel after the defense sworn, any ground empaneled predicated was reasonable believe other- and been ab upon by wise. counsel that two the averment testify subpoenaed witnesses sent simply record not This does de that “was the deсeased theory the defendant’s and insistence that having elected Patently, fendant’s wife.” killing his of deceased not will was upon testimony oth of to rest his case ful, deliberate, malicious, premeditated during the concerning ers his unsoberness act, that, instead, done it was under preceding killing, more or hours heat passion produced adequate bene giving the having eschewed provocation reason which disturbed his about knowledge fit condi of his own his him act caused without due deliberation time, during period that and about tion upon impulse or reflection and rather than upon alleged infidelity he which his wife’s judgment. if he Even had at worked times his of the now his claim that bases passion suspicion, himself into a because premeditated not murder but deceased was wholly record, unfounded under this he pro passion engendered result ample had passion time for his to subside. unfaithfulness, he is in no voked her de complain that he was now to For, cir single Armed with barrel nied under those shot a cоntinuance. gun, cumstances, simply this defendant there is no merit to obviously started out to hunt deceased found him his “would argument at his those witnesses appellate if is con- in his court the defendant contention ance corroborate party did complaining not of mind time that he was in a state at the vinced result fair and that a different not what he have trial killing he did know might reasonably or have been doing laboring was under would and that he disposi- at had been a different passion great reachеd there adequately aroused so application for a continuance. obscure his reason- tion killing time of the Cases, Hig- ing.” his Tennessee Procedure Law He voiced no such contention Crownover, Upon say gins & any his trial. Nor did witnesses § say we trial record cannot court any at before the so drunk time doing, prejudice abused its discretion to the not what he that he did know denying for a con- expressed motion no such contention. tinuance. Furthermore, proof in the there is no witnesses, be- record that the two absent Likewise without substance is the continuance, sought which he cause of Assignment final defendant’s that the trial day told the defendant on judge erroneously permit psy refused to time, killing, any that his other wife chologist testify expert as an keeping company been with the deceased. condition, mental interpose since he did not insanity. proffered the defense of stated, Beyond that, the continu *5 psychologist a member of the staff of oral, sup ance motion was it was not Psychiatric Hospital Central State to ported by an affidavit. for Continuances which the defendant sent before trial purpose the obtaining of not then evidence for mental apart evaluation. She testified supported by or in be available reach must from the jury she participated that in the specifying testimony filed affidavit the examination of the agreed defendant and 19-413; relied on. v. T.C.A. Mitchell § hospital with the staff’s conclusion and re State, 668, 92 Tenn. S.W. port that he was right not insane and knew wrong from competent and was to advise It is elementary that a for a motion with counsel in his own defense. In the continuance is addressed to the sole discre presence of the she identified the tion judge, judg of the trial and that his report staff she stated was member ment will not be in disturbed the absence of the unit which rendered it and that it gross of a showing clear abuse of his represented opinion her The also. trial prejudice discretion to the of the defend judge сommitted no error declining in to ant. Moorehead v. allow the psychologist go further. 357; 409 S.W.2d ex Carroll State rel. Henderson, Tenn.Cr.App. 427, Affirmed. 443 S.W.
2d 689. DWYER, J., concurs. upon party
The rests burden assigning in errors connection matters with GALBREATH, Judge (dissenting). of continuance to that show the action appeal the prejudicial. court was In this from a Appellate first mur- courts will der look to the trial conviction in the County result the before Madison The applied them. that is Criminal test be Court it is the conceded that mo- deprived whether one shotgun hаs been his tive for the brutal rights injustice and whether by has been victim was jealousy engendered a belief reviewing part done. The court on will consider the of the defendant that the victim the record purpose entire for the having of deter had been an affair es- mining judgment whether or tranged not the ren explana- wife. is no There other proper. dered was reversal by A will be or tion offered side for either the homicide dered on account of denial defendant, of a continu- exсept that rightly or wrongly, It primarily become convinced that his is contended on behalf plaintiff friendly overly wife had become with the facts discussed above Attaway, support on do not finding willful, Norris who would aof delib- erate, malicious, premeditated home a beer occasion take her from tavern murder by owner. The defined law so where she worked as to the ver- wife, dict ninety-nine and sentence of years a witness for the main- in relationship penitentiary. tained was innocent having and that reason for her to ac- manslaugh- elements murder and cept from home the victim was be- rides ter repeatedly have by been discussed our cause would not take her Supreme Court. One of best treatises provide himself or her to means for trans- subject may on the in be found Rader v. port may, Be that herself. as it the de- State, 73 610: Tenn. fendant accused wife on several occa- affair; having days sions of few and a is not committed the murder “When Saturday, shooting before the fatal оn of, attempt perpe- perpetration or day September, 11th he asked trate, named the felonies any of quit her Attaway stop and to then, order constitute working in the tavern. refused to She perpetrated degree, first must stop and told working the defendant that wait, or other poison lying some or provide baby she had for herself and deliberate, willful, malicious kind of past born he had left her June. say, is to premeditated killing; premeditation must be deliberation dispute There some as whether the premedita- the deliberation akin to last confrontation between the defendant murder is tion where the manifested was Wednesday Mrs. Baxter or purpose cool poison lying wait—the Friday any killing, but event inten- the deliberate must be formed and defendant armed himself with shot- *6 mind, in in ab- tion the the conceived gun pistol Saturday sought and and a passion, the life the to take of sence of place out the at deceased of In work. poison by and person Murder slain. spite plеas helpless of from his victim and wait, given in are as instances lying him, a co-worker to not so shoot did premeditated and this of deliberate sort times, methodically three each time reach- in such cases no other evi- killing, and ing pocket into for a shell with which to premedita- the deliberation and dence of single shotgun. reload barrel He then the the required; murder tion is but where Attaway threatened to return and shoot means, by proof of deliberation is other if again speaking heard him to he ever It is true premeditation required. is and again. his wife He also threatened the times that the it been held several has if consequences witness like he said upon any not purpose need be deliberated anything happened. what He about had enough is if particular length of time—it then went to the tavern where wife act; precede in all such cases it the but He was and told her what he had done. formed, cooly must and purpose the be point shotgun, forced of the aft- her at or, passion, in passion, if formed not in wall, accompa- er in to shooting a hole passion has it be executed after must ny telling him car her he was in his clearly As was to subside. time in the and kill her. to take her out woods judge, if there pointed out circuit law and or- In deference to a remarkable provocation of a sufficient charac- stopped the car in obedience to der he ter, passion killing under stop sign jumped Mrs. Baxter out excited, manslaughter. be thus would away. volun- escaped He later he drove as every that will provocation But not it is Police manslaughter, to not tarily killing surrendered to reduce Jackson circumstances, for under all even blows Department. bear voluntary the resentment must a reasonable guilty have been man- proportion provocation. slaughter.” to the Never- Davis theless, although there be no sufficient 993. S.W.2d provocation killing to reduce the to man- compiled diligent search of rather A slaughter, may provо- still there be such Supreme has failed our Court decisions of fact, passion cation as to and if excite single opinion which to uncover a purpose passion to kill is formed in passion prompted by jealous excited, thus and executed time without part on the firm aroused conviction cool, passion for the it is not murder de- man has another husband degree, the first but to mur- has held wife been bauched his degree.” second suppressed degree. first der provo- passion The nature under naturally resentment frustration and spoken cation of is described in another of a husband whose the mind arises case. sexually with another has active wife been elabo- known to warrant man is well too necessary “It not is reduce the powerful emo- That rate discourse. passion manslaughter should days of tion not subside even great be so as to render the defendant recog- is also worry mental turmoil incapable premedita- of deliberation or that after it sometimеs occurs nized. Thus If the such as tion. circumstances be brooding, reflection days nights produce are calculated to such excite- the vio- efforts overcome unsuccessful passion
ment would obscure the inside, up is reason lence that is locked man ordinary reason of an and induce tragedy results. overcome and him, passion, under such excitement and the death strike blow that causes appeared the defendant The fact this will reduce the kill- him before the to witnessеs who saw calm ing manslaughter.” Toler v. dispel shooting fact that in all does not Tenn. S.W. was, days, and had been likelihood he up frenzy working to the ultimate himself provocation adequate An to be: said his final out- jealously that motivated provocation “a of such a character appearance of calm and very burst. This would, average reason- in the mind of long emotion has the effort to hide real man, likely stir resentment to cause able than recognized as much worse beеn *7 violence, reason, lead- obscuring the accompanied by rage of vocal be outbursts ing passion than to action from rather crying against object threats State, Tenn. judgment.” Freddo v. 127 Shakespeare passion, others himself. 376, 155 S.W. right, the emotion as students of know, advised, “Give sorrow when relationship spouse The illicit speak grief does not words. The that adequate provocation to reduce another is whispers heart o’er burdened bids voluntary manslaughter. homicide Supremе recognized it break.” Court Our if, mat- opinion that as a are of “We in in this which it reduced volun- case fact, the deceased had debauched ter of suspect- tary manslaughter slaying of a error, plaintiff in and the wife paramour months the husband ed after apprised of plaintiff in error had been relationship supposed learned illicit that fact and had become convinced between wife and his victim: wedding or day its on the truth and, thereafter, expedi- “Nor this with reasonable is conсlusion rebutted pas- tion, engaged fact in under the influence that defendant casual while in- agitation produced sion such calm conversation with Mrs. Porter Noe, Fayetteville formation, way being on his had killed he would
233
permissible punishment
given
by-
penalty
this additional
information
if the death
like this one
is to conform to
Mills.
In
case somewhat
constitutional standards
that
Georgia,
this Court
took notice of the fact
discussed
Furman v.
408 U.S.
accompa
238,
2726,
‘suppressed anger
ais
common
92 S.Ct.