Sparks v. State

above, concurrently. the trial to be served no doubt that Howe leaves v. State open court on that judgment Pyne, ex rel. pronounced 98 S.W.2d 93 (1936); date. Nash v. 524 S.W.2d 494 (Tenn.Cr .App.1975). is a conflict between When there We hold that the trial court was without minute entries exceptions the bill of jurisdiction modify supersede or technical the bill reproduced judgment expiration of October 1 after the must control. Church exceptions thirty days, and that the motion to re- 333 S.W.2d (Tenn.Cr. the purported consider modification on Teague v. 529 S.W.2d No- properly granted. words tran vember 19 was Certainly the exact App.1975). judgment and authen affirm the exceptions in the bill of therefore scribed serve to trial court should court. ticated in the minute entries. ambiguity

clarify any case from the

Any J., confusion in the instant RUSSELL, P. concurs. in the minute of the term “considered” use LOSER, Jr., Special Judge, JOE C. dis- “ad than “ordered” or entries rather sents. clarified judged” deemed to be must be excep precise language in the bill 1 order tions. It follows that October “judgment” purposes for the

was indeed

of the issue raised in this case. practice

We have examined the local

rules for the of the Tenth Criminal Court (Davidson requir- County)

Judicial District ing “[njotice for of intent to file a motion SPARKS, Appellant, Robert Charles given new trial be to the Court immedi- [to] ately upon of the verdict of the rendition Jury .,” requiring . . Rule Tennessee, Appellee. STATE of for a new trial be entered “[m]otions [to] of Tennessee. Appeals Court of Criminal (30) thirty days not later after the than .,” Jury rendition of the . verdict of Feb. 1978. Rule 16. These rules are not in conflict by Supreme Certiorari Court Denied 40-2603, which states that a T.C.A. § April 1978. only applied “motion for new trial can decree, (30) days from the thirty for within judgment sought

verdict or to be affected.”

In the “notice” of intent to new trial was

file motion for returned its day

October pronounced judg-

verdict the trial court expired without a thirty days

ment. When filed, judg-

motion for new trial

ment of October 1 became final. judg

The trial court’s October 1

ment, both in the minutes and as it is stated exceptions, is silent as to

in the bill of imposed should run the sentence

whether consecutively to the with or

concurrently prior imposed for

sentence selling heroin. the face

conviction requires law the sentences

such silence the

DAUGHTREY, Judge.

OPINION defendant-appellant, Robert Charles Sparks, was indicted for mur- niece, der in the shooting death of his Jean- nie Lee Sanders. The jury found him murder, guilty degree of second and he was sentenced to twenty years peni- in the state tentiary. appeal On the defendant raises multiple assignments error, the most se- prosecution’s rious of which concerns the closing argument jury. to the Because we find ground, reversible error on this case must be remanded for new trial on degree the second charge. tragic death involved in this case occurred at the end of a day-long family Perry County reunion held in following the coming.” local church’s “home The defend- niece, Sanders, ant’s Ms. borrowed her un- cle’s car and family took several other (including wife) members for a apparently ride. The defendant be- angered group came because the was late returning his automobile. When final- arrived, wife, ly his slapped knocking he her car; back into the he then hit the victim again that, slapped his wife. With shotgun defendant retrieved from the automobile, and, trunk of his ignoring the pleas bystander, of a followed Ms. Sanders into the According house. to the defend- (and victim), ant’s sister mother of the who time, in the allegedly house at the niece, defendant said to his “I’m going to you, nigger.” kill The defendant fired once, mortally the victim fell to the floor wounded, and the immediately defendant out, mercy, cried “Lord have it was an accident, it was an accident.” Ms. was rushed to a hospital Sanders where she was subsequently pronounced When questioned by dead. the local sheriff hospital at night, later that same Noel, Nashville, for appellant. Michael D. defendant admitted he had shot the victim and turned over the shotgun. Jr., Gen., McLemore, Henry Atty. Brooks Hildebrand, III, Gen., Atty. Asst. Nash- E. At trial theory the defense Gen., ville, Davies, Jr., Atty. Elmer Dist. accident, or, shooting was an at III, Franklin, Bates, most, Asst. Dist. Douglas T. voluntary manslaughter. amounted to Gen., Centerville, appeal the Atty. appellee. for On defendant attacks suffi- basis, However, other racial on the latter considerations includ- ciency of the evidence mal- legal presumption closing argument clearly ed should arguing the use of a normally played part arises from have in the trial of ice which the evi- lawsuit, weapon directly was rebutted unless deadly related to case, proof of and that absent fairly in this issues raised the evidence in the dence second malice the conviction record. We think this was not the presents a stand. This issue despite murder cannot the defendant’s failure to enter a however, al- fact, which has contemporaneous objection question to the jury. Under ready been determined attorney specifically of the district ad- circumstances, jury’s determina- normal ques- dressed to these extraneous racial appeal unless tions, disturbed tion will not be resulting preju- we conclude clearly preponderates the evidence at trial dice to the defendant was so serious that State, 213 McBee v. their verdict. the trial should have intervened sua (1963). A review 1, 8-9, sponte. Watkins us that this case convinces 344, the record in of 203 346 Nashville Rail- not been met. On Owen, has way the McBee standard Light Tenn.App. & Co. v. 11 hand, defendant conced- (1929). while the the other As it put by 30-33 so well the victim, the he shot the at Supreme ed United in States Court New York in- concerning malice and Johnson, evidence Ry. crucial Central Co. 279 U.S. (and concerning the credibili- especially 300, 303, tent 49 (1929): S.Ct. 73 L.Ed. 706 mother) eye-witness, the victim’s ty of the state, duty íhe whose it is the of interest in- disputed, the vigorously uphold, court and counsel alike to is con- prosecutor’s the clos- flammatory nature of every cerned that litigation fairly say that the ing argument, we are unable to impartially conducted and that verdicts improper the outcome was not affected juries be rendered on only the issues argument. up by pleadings made and the evi- public requires dence. The interest char closing argument That can best be motion, the court of its own as is its part, unsworn being, large acterized as in power duty, protect in suitors their attorney. testimony by the district Such to a verdict uninfluenced is, course, Rus improper. See appeals passion prejudice. of counsel to or (Tenn.1976); sell v. 532 S.W.2d 268 (Tenn.Crim. Judge v. 539 S.W.2d 340 In his final argument, prosecutor Bowling v. 3 App.1976); Tenn.Cr. of race in raised issue connection with (1970). App. prob 458 S.W.2d purported threat to vic- compounded by the substance of lem was tim, just prior shooting. delivered to argument: the testimonial attorney predicated The district his com- think, injected, wholly gratuitously we sev ments his statement to effect place which had no eral racial issues jurors should use common sense and trial of case. experience reaching their common in their verdict. But we think his remarks are not transcription a Although clearly knowledge a matter of universal or is not included in the bill of jury’s selection experience. jury: He told the twelve members of the exceptions, all white; experience your all twelve were You have had the life apparently people; on the basis of in association with black apparently voir-dired people talking the case without ref when black to each ability to decide their person the defendant or the other but where there’s a white erence to the race of victim, them the other both of whom were black. and one of calls deceased been can mean several procedure nigger has one objection No to raised, impediment things many but times it has an element legal and we find no it, Carolina, jest joking. 409 U.S. or Most often it. Ham South See (1973). curry favor probably L.Ed.2d 46 think it’s said to S.Ct. person listening Perry with the white that’s County Jury, Grand they had to thinking the conversation that he or she take responsibility, on their they didn’t funny it was sorta for one would think try the they didn’t hear the case as person to call another black person black it, though they try would they only heard people two black nigger. Not so when it, they side of I believe practi- one heard and there are talking to each other heard, cally you all they didn’t hear that present, then when any people not white May Frances had written a bad check or nigger the other one a one of them calls publicly she had been drunk but they different, that’s that means the fur is heard about everything else de- fly. about to cided that he should be charged with objection argument. degree. There was no It was more followed an even serious May please Court, Mr. Noel: it I’m requiring temperate the rule ar- breach of going object to this whole line of argu- only based evidence adduced gument ment, as the Jury and the Court knows attorney when the district conclud- at trial its the Jury that has to try these facts remarks with: ed his and not the responsibility of anybody else Military In the of all crimes when an object and I to the whole argu- line of by firing squad execution is carried out ment and I think it’s improper. weapons are loaded such that some of The Court: Overruled. the firearms have blanks and others of Atty. Dist. Gen. Davies: So shoul- pur- them have the live bullets and the dered their responsibility pose that of course is that when the charged this man with murder in the first is out no one execution carried knows degree. Then person the next in line was actually who it is that fired the shot that the District Attorney, he had to meet his responsibility killed the man. The is tre- responsibility doing and in that and in spread mendous and the idea is to the determining whether or not this is a case In much responsibility around. the same that I should ask for the death penalty I way responsibility the is shared in this many thoughts had and one of the things all, you Jury, situation where as the that disturbs me about the law is the called perform important on to a most misconception people that have about the begin function. To responsibili- with the you law and know that there is a common ty ninety-nine started with the members thing I don’t know really that it’s as Representatives the of House of of this widely believeed as someone would [sic] thirty-three and the State Senators you have think but there is a common they passed studied the matter and misconception that the only people that killing a law that where a was done un- face the death penalty poor people that der such conditions made it first blacks, you’ve heard that repeatedly. degree murder that there was no further Well I don’t believe that that’s true but I

discretion, only applicable that the sen- know widely that the is talked about and death, that deci- tence was the made it bothers that any me this Court or of sion, they responsibility, took that that the four Courts in this Circuit would have Judge charge you the law and the will is reputation that that is the kind of thing the the law. Then Governor of that we did and because this defendant approve had to that law so he took State my thought well, was a black responsibility. on his Then down to the No because he’s black don’t ask case, of Rob- for the individual this case Charles penalty death thought again and then I Sparks, responsibility ert had to well that’s not responsibility really be the Charles because that’s Sheriff decision, Qualls, trying he had to make the first what I’m to think about man, because the charge the first decision to so woman that he killed was responsibility. he the And then changes shared black and that the whole thing after him the thirteen members as far as I am concerned. When everybody closing argument. given I you all were selected asked But long question, you if would the fact involved the sentence was twice the though people these just penalty treat this case as minimum for the offense of second you every murder, as were of the same race the extent and nature of may very This be a you one argument, said would. attorney’s district with its do, though you even thing overtones, difficult inflammatory racial the failure may very still be a you said it would of the trial to intervene in response my thinking difficult but is thing to do thereto, his error in subsequent refusing to that all in this case is evidence sustain timely objection defense counsel’s present, elements have been all of the the argument, resulting lack any actually is proved, nothing. the defense cautionary to the jury, instructions we are people these back say would if unable to say that the outcome of the trial August Perry County were white 31st prejudice not affected to the just them people senselessly and one of closing argument. defendant the State’s shotgun went out into his and shot See generally Judge supra. reason than the fact niece for no more the car late that recognize that she had returned that reasonable lati where you this would be a case would tude must to counsel in expressing say- return the Now I’m penalty. death their views jury. of the case to the Because ing this, black is no reason because judges have wide discretion in to do different. controlling counsel, arguments their action will not be reversed absent an argument is that thrust of Nevertheless, abuse of discretion. we think legislature responsibili its “shouldered it is clear in this case ty” passing mandatory penalty, death did not meet requirement under Ten governor responsi that the “shouldered his nessee law that his must be it, bility” by approving sheriff did “temperate, predicated must be on evidence defendant, likewise arresting during introduced the trial of the grand jury heard evidence and dis pertinent must be to the issues tried.” charged responsibility charging its State, Russell v. at 271. supra We con murder, and defendant with that the dis clude that the defendant is entitled to a trial attorney trict his responsibili “shouldered which is punctuated closing argu not ty” by seeking penalty. the death The mo ment which this clearly so violates standard. mentum of this is almost palpa ble, even on the record: written remanded, Because the case must we jury’s resulting responsibility impose was to find it advisable to with deal several other penalty, merely to not determine may upon issues which resurface retrial. guilt testimony or innocence on the based judge’s first concerns the trial refusal the case. sheriff, sequester to the local over the ob- jection counsel, argument,

In of defense delivering prosecu- ground that the ranged widely espe- tor sheriff is “the constitutional outside officer cially regard presented county anything the evidence that’s happened to grand jury process county opinion to the and the he fol- in the I’m of the that he’s degree privileged lowed in seek a first deciding to to it.” Thus the sheriff was not jury subjected acquit- sequestration conviction. It true to even though is ted the defendant of State conceded its intent to call him as a and thus witness after the imposition production prose- avoided then other mandatory penalty sought passion- (The death so cution witnesses. State conceded ately by prosecution closing argu- in its that the sheriff was the official prose- not argued that cuting ment. It could be this action witness in because any question jury preju- grand jury presentment, requir- mooted returned a arising obviously improper ing prosecutor. 40-1705.) dice from this T.C.A. § 570

We know of no authority sup themselves, to The x-rays while probably port the trial ruling court’s broad on this cumulative, were apparently relevant to However, issue. we are aware that there show the nature and extent of the victim’s specific have been exceptions some created Furthermore, wounds. we find nothing in- general to the rule sequestration. of total herently inflammatory x-rays. about In 24-106; Shown, T.C.A. Dougherty v. § 48 fact, point of and when compared photo- (1870); Elmore, Tenn. 302 Rainwater v. 48 graphs corpse, of a the reverse is probably (1870); Tenn. 363 Smith 72 Tenn. long true. As as the trial is con- (1880); Smith, 428 Lenoir Car Co. v. 100 (i. vinced of their relevancy e. that 127, (1897); Tenn. 42 879 S.W. Adolff v. x-rays question depict what Irby, 222, 110 75 710 S.W. purported depict in such a fashion that Hughes 40, 126 Tenn. 148 S.W. 543 helpful to the determi- (1912). addition, always it has pru been nation of a material trial), issue at there is dently recognized (usually in the form of no error in their introduction into evidence. dicta) justice the needs of public require interest a certain In closing, we note that retrial judicial amount of discretion be maintained this case will be made more difficult than mean, however, in the area. This does not usual because the passage of more than the trial court liberty is at to make two years since the date of the victim’s (to what are arbitrary exceptions otherwise 31, death August 1975. The defendant rule) general that are not based on date, arrested on the same he was some articulated demonstration of necessi indicted at the court, October 1975 term of ty. Pennington v. and he was March, tried in 1976. The (1916). S.W. amended motion for a new trial was over Therefore, upon timely motion 1976; July, ruled in the defendant giv sequester, we practice think the better is days en 90 in which to prepare and file his to exclude all witnesses until are called bill of exceptions. reporter, The court how otherwise, testify by necessity, or are ever, did not transcription submit a until (The single excused from the rule. recog August, year more than a after the is, course, exception defendant, nized motion for a new trial was overruled. This who is afforded a constitutional to be delay occurred despite an order on Novem stages at all of his trial. Brooks v. 1,1976, ber following filing of the tech Tennessee, 406 U.S. S.Ct. court, nical record in this directing the im However, (1972).) L.Ed.2d 358 the defend filing mediate transcript. This court ant in this case concedes that there was no has since been informally notified cer prejudice actual as a result of the trial tain of its officers that the delinquent court ruling, court’s because the sheriff’s testimo reporter has reason, retired. For this and ny directly was not the testimony related to other, prosecution we decline to invoke Supplemental of other witnesses who testified presence. Court, in his While we Rule 7 conclude that the of this allowing citation for harmless, error here was thus we caution contempt under circumstances such as those repetition its on retrial. presented rule, in this case. That other promulgated Court, rules by this Finally, assigns the defendant as designed to effect the efficient administra error introduction of certain medical justice, tion goal which is undermined x-rays testimony as an exhibit to the of by delays such as have occurred here. In unsuccessfully doctor who treated the vic conclusion, we call attention to T.C.A. tim after she was rushed to the hospital 40-2032, authorizing § a criminal court emergency room. The defendant insists judge, with approval these Executive x-rays cumulative to the were, therefore, testimony Secretary, designate doctor’s and un auxiliary court re necessarily inflammatory. disagree. porters when needed. jury finding appellant With is reversed judgment conviction than murder in pro- a lesser offense guilty for further the case is remanded ample degree, and with evidence to opinion.

ceedings not inconsistent premeditation found support would, overwhelming evi I in view of the DWYER, J., RUSSELL, J., P. concur. punishment from guilt, reduce the dence of if ten the State years years, twenty DWYER, Presiding Judge, dissenting. short, would invoke the I accedes. closing his re- When Supreme Court found thinking of our argued that all officials associated marks (Tenn. Smith sheriff, case, legislature, governor, with this 1975), subject the consent jury judge, duty, had done their grand punishment the statu reduce the remarks exceeded I concede that those must other ten In all tory years. minimum of legitimate argument. While the bounds of as concur in views ex assignments I not indi- it is true that did pressed by majority. appel- officials cate all these found guilty, implication lant think an indirect I guilt a direct inference that would, infer from the

could remarks.

however, majority in and do differ from the

reversing remanding this case re-

trial.

Case Details

Case Name: Sparks v. State

Court Name: Court of Criminal Appeals of Tennessee

Date Published: Feb 6, 1978

Citation: 563 S.W.2d 564

Court Abbreviation: Tenn. Crim. App.