*1 Piaintiff-in-Error, MEADE, Norman Cline Tennessee,
STATE of Defendant-in-Error. Appeals
Court of Criminal of Tennessee.
June by Supreme
Certiorari Denied Aug. 21, 1972. *2 he has ever insane.
no evidence that theory Meade’s is that he had onset an temporary insanity that came knowing suddenly kept him from and broke the busi- doing he was when he into did house, wrong; it but ness or that was Mclnturff, Kingsport, plain- for B. C. re- not cause insane he was him to be after tiff-in-error. Now, by reality turned to arrest. Meade Pack, Gen., presented clini- Atty. testify; didn’t so but he Hagler, David M. B. J. Nashville, Atty. Gen., psychologist him for Jr., Asst. cal who interviewed Carl K. Gen., year Kirkpatrick, Atty. one hour one after the fact Kingsport, one time Dist. tempo- probably for and he was defendant-in-error. theorized rarily carefully have reviewed insane. We why the testimony this and can understand OPINION find jury rejected and trial it. We totally it to be remind- incredible. We are RUSSELL, J. language Supreme ed of the of our in the 183 case of Mullendore v. caught Meade act of was S3, (1945) Tenn. : S.W.2d Kingsport. burglarizing a business house “ ** * offense, for He was indicted psychiatrist A was introduced being an charged a second count defendant, on testified behalf [sic] Upon the first habitual criminal. defendant was insane. He plea the bifurcated trial he entered made an examination of defendant for guilty by insanity at time reason of thirty about minutes some weeks be- two absolutely no of the crime. There was kept fore He of the the trial. record question but it. About that he committed and could not be exact examination even insanity only at that time evidence of its His ad- making. about the date of psychologist was the a clinical missions showed on cross-examination insane, opined that who he was based and in- the examination casual lasted about one session with Meade complete. advo- He showed himself an many an hour and was conducted months dispassionate expert, cate rather than a certainly jury was after the crime. The they jury justified (when justified expert testimony rejecting this weighed testimony, they had a as as incredible. right do, Howard, Haskins v. 20) concluding caught Meade was inside an automobile employed than called rather garage, perpetration burglary. for the of obvious defense. attitude building, He had broken into the into by nominally partisanship displayed this cash cabinets of- filing drawer and witness, expert convincing furnishes ev- fice, valuables, had his collected collec- idence wisdom of the rule laid of the tion on a cloth to mechanic’s cover bundle Court, expert testi- down up transportation and facilitate their when mony great received cau- is to be ‘with Then, very the officers arrived. rational- tion;’ weight (citing cases) upstairs ly, stayed he went hid and given jury caught until there he was found. When trial under careful instruction of reasonable, rational and declined to make a State, supra. The ac- judge. Haskins v. statement, lawyer. and asked for a before, at, tions and words defendant immediately job He was a man held a after the commission of who in a hos- crime, pital people immediately convincing around as medical were crime, they after his sobrie- long before and has a his- tory criminality, absolutely ty, there is had material evi- so feel the we disregard phase
dence on which to In the second of the trial ha expert criminality witness.” bitual was well established prior of five or more convictions. language of Mr. Gailor in Unquestionably convicting proof Justice is le appropriate Mullendore is to this case. gally count, sufficient on that also. Unquestionably guilty the verdict of degree third burglary supported punishment well We note that a for the *3 legally sufficient burglary years evidence. (3) (9) of three to nine by jury upon
was set
trial of the first
count,
imprisonment
and that life
as
controlling import
We attach no
upon
sessed
finding
of habitual crimi
ance to the fact
charge
as to in
nality;
pronounced
and that the trial
sanity appears
incomplete.
to have been
judgment setting
punishments.
both
We
No
assigned upon
error has been
believe the law
to be
habitual crimi
charge.
question
No
was raised about it
offense;
nality
status,
not an
its
below.
14(4)
See Rules
and 14(5) which
finding calls for an enhancement of the
provide that no
could even
punishment for the
offense (burglary)
new
have been raised here for the first
time.
imprisonment.
to
40-2801,
life
T.C.A. §§
Certainly
it;
we should not raise
most
40-2802, 40-2805, 40-2806; Canupp v.
especially in view of the fact that to do so State, Tenn.Cr.App., 460
382. Life
assuming
we are
the record has not
imprisonment
is, therefore,
the enhanced
been abridged
deliberately
por
leave out
case;
punishment
burglary
for the
in this
relevancy
tions that
have
to the errors
sep
setting
judgment
of the
assigned,
positively required by
as is
Rules
punishment
(9)
arate
of three
to nine
(3)
1 and 2. And the most that can be said
years
burglary
for
is declared to
null
charge
about
incomplete,
is that it was
and void.
erroneous;
nothing ap
rather
than
pears to indicate that further
instruction
Evidence was introduced
requested.
meagerness
Mere
phase
first
of the trial that
had kid
Meade
charge, if correct
goes,
as far as it
is not
car,
napped and robbed a nurse
her
mo
special
reversible error where there is no
ney
card;
subsequently
credit
request for additional
instructions. Lunn
carry
companion
used them to
a female
on
Ealy,
374,
893;
v.
176 Tenn.
141 S.W.2d
two-day
round-trip “flight” to Florida.
Reid,
McClard v.
190 Tenn.
229 S.W.
vigorously argued
It is
that the State in
505;
Davis,
City
2d
Bluff
Buick Co. v.
get
troduced this evidence to
the fact of
Tenn.
nervous
early the next
a crime
who asserts
as a
police
saw him at the
station
State, 183 Tenn.
very nerv-
defense. Mullendore v.
his arrest he
morning after
State,
149;
very pale
Spurlock v.
ous,
apprehensive,
191 S.W.2d
upset and
at dif- Tenn.
eyes
red
he cried
there;
times while she was
ferent
the State is not bound to establish
While
fairly well
to know then
“He seemed
instance,
sanity
the defendant’s
first
questioned
but
her about
he
where
was/’
if the defendant’s
or the State’s
fully
happened
real-
and did not
raises a
as to the defend-
reasonable doubt
on;
going
ize
he had
what was
sanity,
ant’s
such evidence relieves the de-
and a
failing
year
for about a
health
fendant of
proof
further
issue
half;
this offense
day
and that on the
and shifts the
burden of
State.
his father’s funeral.
had attended
State,
178;
(1
Tenn.
Baxt.)
Stuart v.
State,
King v.
S.W. 169.
Gelburd,
psy-
a clinical
Dr. A. Sheldon
holding
psychology
chologist
a Ph.D.
Whenever
is introduced coun
University
from the
of Tennessee
tervailing
the presumption of
practicing Kingsport,
his hour-
detailed
raising question
insanity,
of the accused’s
long
interview with the defendant
the State must then establish
apparently
County
oc-
Sullivan
Jail
beyond
the satisfaction of
a rea
22, 1971,
year
July
than a
curred on
more
sonable doubt.
124 Tenn.
Jordan
offense, and
the defendant’s
after the
*5
81,
327;
States,
v. United
S.W.
Davis
others,
explained
and
the stand-
wife and
373, 378,
360, 362, 41
165 U.S.
17 S.Ct.
L.
psychological
ard
him.
tests administered to
Ed.
754.
In-
He
that the
has an
testified
defendant
Quotient
of
that “He
telligence
and
course,
Of
with the
confronted
evidence
crazy
By cross-
try
didn’t
to act
all.”
at
countervailing
presumption
sanity
the
of
of this
the District
examination
witness
definitely
of
raising
question
and
the ac-
a
when
Attorney
out that
brought
General
insanity, the
then undertook
cused’s
State
years
in-
the
he was
defendant was
old
discharge
proving
its
of
his
obligation
Hospi-
in
stitutionalized
the Clover Bottom
sanity beyond
In
a reasonable doubt. mak-
Attorney
then
tal. The District
General
effort,
ing
attempting
in
that
addition to
testimony by
neutralize
undertook to
that
cross-examination,
by
discredit Dr. Gelburd
repeatedly suggesting
that institution
that
relied
of
the
the
four
State
hospital
telling
by
is
him
not a mental
and
The first
these was one of
witnesses.
of
say
in
better
it was
that he knew
than to
officers,
arresting
testified that he
the
who
the
the
33-201
by
face
fact that
T.C.A.
§
night
the same
talked with the defendant
designated as “Clover
that
institution is
in
apprehended
placed
jail, and
and
was
Donelson,
School,
Hospital
Bottom
and
at
what he
knew
he was and
that he
where
sum, Dr.
mentally
for
In
the
retarded.”
charged with
doing and what he was
Gelburd’s stated
that the death
being
father
buried
told him about his
and
psy-
a
triggered
the defendant’s father
day;
limping
that the defendant
that
chological condition
him to
which caused
that he told
with a cane and
and walked
reality
him
lose
with
rendered
contact
and
hospital instead
ought to be in the
him he
temporarily insane so
he did not know
that
building;
company
there at the motor
the
doing
what he was
when he entered
“he was
told
defendant
that he also
the
establishment
did not know
business
and
there” and
being
hell for
down
crazy as
wrong.
right
the difference between
the
statement
making
in
that
had mind
buried that
his
that
father had
applicable
The
fact
principles
law
injured and was
morning, that he had been
long ago
pre-
settled
this
State.
doing
going
and “then
out
sumption
sanity places
limping
the burden
burglary”
poor
case;
judgment.
insanity
was a case of
facts shown
and that
arresting
prosecution
The other
officer
a defense in a criminal
the defendant stated
con-
he understood his
be
of fact
determined
rights
charged
stitutional
he was
proper
under
instructions
with,
him,
that
response
State,
Sparkman
Tenn.Cr.App.,
Meade told
court.
inquiry,
death;
about his father’s
that
building
defendant was hidden in the
However,
implicit
just
it is
in the rules
obeyed
the officers’
come
command to
appellate
governing
stated and in the law
up,
out
with
hands
and that in his car
sup-
jury’s
be
review
verdict must
they
whiskey;
found
of a bottle of
ported
A
substantial material evidence.
and that he was
with
defendant “not
wisp
shred
flimsy
mere
or
of evidence
minutes,
over three to five
at the most” be-
enough
not
convic-
criminal
sustain
driving
police
fore
him to the
station.
recognized
tion.
scintilla rule
In
presented
rebuttal
State
this State. Liakas v.
jailer.
bondsman
The bondsman
298,
dogmatic
227,
appeal
assertion which does not
C.
testify about the of the defendant considering the helpful in based on examination Pertinent and some five or six problem confronting us this case are the months after the offense was committed: Wright v. following statements in United “In Am.Jur.2d, Expert Opinion 36, States, U.S.App.D.C. 250 F.2d Evidence, following Section (1957): statements are made: opinion to which “. . . But Probably in no class of cases is the testifies, only be ‘the psychiatrist need expert testimony general use of so type opinion he is accustomed of clinical indispensible almost as in that where practice rely upon in the to form and to insanity. issue is or Unless need consist of profession.’ of his It person raving maniac or com- ‘mathematically demonstrable certainties.’ plete imbecile, it is evident that a States, 1957, 100 U.S. Blunt v. United hardly competent can be deemed App.D.C. 244 F.2d satisfactory reach a decision on the
question of his mental condition with- expert being out instructed witness- lay “Although testimony witnesses es as to the manifestations of mental competent the issue may evidence on be derangement signif- or disease and the that, in sanity, follow it does not symptoms icance of which are evid- insanity, showing face of substantial ence.” may send the issue the Government policemen jury simply by having two light forego- Considered of all the right to me.’ The testify, ‘He looked all ing, surely it cannot said that the State the is probative on value of proving sustained its burden of the defen- sanity depends the facts on sue sanity beyond dant’s a reasonable doubt especially This is true is based. negative testimony essentially may Lay lay opinion. ‘witnesses laymen manifestly presented, four who facts testify only the basis knowledge about such matters and testify They may as to them. known already noted could not whose *7 may then ex observations and upon their own that issue be considered as “evidence” upon opinion those obser press an based at all. testimony of a course the
vations. Of Moreover, although defendant makes the relat training in this or lay with witness court’s complaints here about the trial value than the may have more ed fields that the charge, it cannot be overlooked with no testimony a witness of concerning only jury court instructed the upon a moment’s training. Also obvious when presumption sanity and that that, lay the of while reflection is the fact interposed to a crim- insanity is as a defense acts of abnormal observation witness’s proof of is charge inal the burden as great of value may be an accused did not the court party alleging it. But the evidence, the witness a statement do, required to he was jury, the the instruct act on an abnormal never observed intro- or the State if, the defendant but if of value accused of the is raising doubt fairly any evidence if, duces prolonged witness only the the at the accused’s issue of the the accused.’ intimate contact cross-ex- Attorney General’s in the District offense, of presumption the time he elicited amination Dr. Gelburd then of the to State sanity ceases exist pri- inwas brought the defendant out that be- to establish the burden has days, State, and 18 one month years, son seven a reasonable doubt. yond Jordan objection States, defense overruled supra. the court Davis v. United supra; Attor- And the District testimony. to that instructed that Thus, jury was never the he if asked ney then Dr. Gelburd upon the General State rests burden psychological defendant’s countervailing pre- the examined the whenever Penitentiary, “The at raising a record the Tennessee sanity and sumption of Psy- up done the work that was there introduced. insanity is the accused’s objection was chologist.” Again defense my second As- In view the defendant’s during the And all of overruled. signment of Error is meritorious. He con- burglary the phase first the trial erroneously the court ad- tends that trial count of the indictment. testimony Marjorie mitted the of Mrs. Stansbury Imogene and Miss Webb. The Furthermore, Assign- the defendant’s testimony oc- events referred to in their argu- complaining the ment of Error curred before he was free trial while Attorney District General ments Stansbury Mrs. on bail. taken, If eminently my opinion. well point forced defendant her at knife to Attorney arguments, General’s District drive him to a where tied remote area he respect phase both with to first up her and took her her automobile and respect second trial and later with purse containing Esso credit card and her charged phase in the defendant was about Miss that she Webb testified criminal, $30. as an habitual and convicted Miami, and the defendant went to Florida latter, grossly not especially as to Stansbury and that she used vehicle improper prejudicial, it is difficult Stansbury's buy gaso- Mrs. credit card properly arguments conceive could line; arriving in that after Miami the de- inflammatory be and calculat- classified as approxi- fendant visited his brother against prejudice ed to incite and mately they 10 minutes then started plain total effect the defendant. The Tennessee; trip back to and that the entire de- arguments was brand the the State’s days. lasted about two and a half The rec- should fendant criminal who as a vicious plain purpose it in- ord makes can- away. so obtained put be Convictions troducing Stansbury of Mrs. permitted to stand. and Miss bolster the State’s Webb was to reasons, my fled it is contention the defendant from the For these prosecution, by State Tennessee to avoid did not have a fair trial and defendant kidnapped reverse showing Stansbury Mrs. that we no alternative but to have deadly and robbed her case for a trial. Al the use wea- and remand this new pon. completely years ago, This record refutes the most a hundred in Stokes v. flight by Supreme contention of the defendant. He (5 Baxt.) County was back Sullivan within two said: this State days trip and a half after he started
Florida, might “Although we be satisfied of the is no evidence that he there prisoner’s duty guilt, yet to see himself the time he re- our concealed from *8 trial, impartial has a fair and until the his trial. turned date of There may though he must have costs introduction was no basis of evi- punishment long de- accumulate and exception other dence of crimes under layed.” proof. rule prohibiting to the Even