State v. Robbins
512 S.W.2d 265
Tenn.
1974
Check Treatment

*1 of favor the issue decided jury opened had the blade of that deceased approved judge trial theory, the the State’s knife, if he had one. indeed pre- not evidence verdict ground of a homicide on the “To excuse finding. ponderate life, self-defense, danger Ap- Criminal real, the Court reverse harm, We bodily must be either great the conviction. so, peals affirm and the time honestly to be at believed danger killing, such belief of grounds. must founded on reasonable McCAN- DYER, J., CHATTIN C. cause only must be sufficient There LEECH, Justice, Special LESS, JJ., great death or to authorize the fear of concur. really harm, must be bodily but such fear entertained, under killing done that it belief

an honest well-founded necessary absolutely in self-defense.” State, Tenn.Cr.App., S.W. v.

McGill (1972)

2d 223 May State,

From 220 Tenn. Petitioner, Tennessee, (1967) S.W.2d 647 comes statement STATE “ that, go . . . one further cannot than reasonably necessary of his defense Respondent. ROBBINS, Jr., Reeder person”. Tennessee. Also well established in the law of ex- 3, 1974. June requirement cusable homicide is the slayer employed must have all means power, safety, consistent with his own danger necessity to avoid and avert the

taking Am.Jur.2d, another’s life. 40 Homi-

cide, seq. Section 160 et jury

On evidence plea

could have sustained the of self-de- hand,

fense. On the other it is clear that could, jury did, they reject plea. said elementary person

It that a bent on another,

combat wounding or mortal knife, unopened

armed with an sud- who

denly looking finds himself into the barrel pistol, instantly

of a loaded must lose all fray.

enthusiasm found, in this case could have testimony,

from defendant’s own

necessity to take the of deceased had life matured, warning for lack that he it, pistol

had a and would use or that de-

ceased did a real threat of loss harm, great bodily life or an un- with

opened knife, walking toward defendant possess-

four away, or five feet defendant pistol. a loaded *2 body

dent’s feet from the which was 39 point impact. The weather was clear pavement dry. per- first scene, deputy son sheriff to reach the accident, testified who witnessed influence of was under the *3 like an intoxicant and smelled alcohol. respon- that the The sheriff also testified drinking staggering dent had been and was highway at of the accident. The the scene patrolman an who administered SM-7 breath test two and one-half Gen., Pack, Atty. Bart C. Dur- David M. accident, that re- hours after the testified Nashville, ham, Gen., III, Atty. Asst. John spondent intoxicated at the time of the was Gen., Williams, Atty. Huntingdon, L. Dist. foregoing test. In addition to the testimo- petitioner. for ny, respondent admitted that he drank sev- en eight tall cans of beer between 1:00 Jackson, respon- Ethridge, Jr., H. T. day and 6:00 P.M. on accident. dent. Moreover, the result breath SM-7

test reflected an alcohol concentration level OPINION legal presump- above that which raises the tion of intoxication. LEECH, Special M.W. Justice. respondent’s Inasmuch as was conviction Robbins, Jr., was Respondent, Reeder as a result the admission into reversed involuntary manslaughter and

convicted of evidence of the results of the SM-7 breath con- punishment by fixed his test, necessary it is that the facts related to in the year for not than one finement more that test be set out more detail. Since timely appeal in the penitentiary. A state adequately Judge this was Oliver’s done perfected at- nature a was of writ of error dissenting opinion, adopt his state- we shall The validity tacking the of the conviction. They ment of those facts as own. are our Judge Appeals, with Court of Criminal as follows: holding that T. dissenting, reversed Oliver con- C.A. 59-1049 was violative jail that at the record shows “[T]he clause, therefore, allowing evi- frontation Highway following the fatal accident pursuant thereto was dence to be admitted Horton administered an Patrolman John granted State’s reversible error. We (balloon test) breath test SM-7 for the writ of certiorari so defendant, he consented and to which sec- constitutionality foregoing of the Code agreed explanation rights, after tion could be determined. samples and that taken were mailed toxicologist’s laboratory in Mem- from pertinent facts as ascertained phis. record reveal that: Stafford, official custodian of 14, 1972, “Dr. approximately at August On records, laboratory testi- toxicology P.M., driving respondent, while 7:00 intoxicant, a according to his records fied an under the influence of car analysis breath seventy-nine request for SM-7 a instantly struck and killed to the defendant was strik- test administered pedestrian. Prior to year old female Horton; that Paul Kosko decedent, respondent’s car skidded ing the John analyzed laboratory and feet, worked in the it went ditch then .a taken; the test results culvert, specimen the road struck came back across a by the Chief Medical were then certified finally stopped feet from the dece- copy only if following Examiner of the and a of the dence conditions are sender; results sent to the met: results showed alcohol con- attested, Said certificate is properly 1. per centration to be .18 cent. record Dr. referred to was a Stafford Department Tennessee of Public Health party taking 2. The causing the tak- form,

Toxicology Laboratory report at specimen the party top request for an of which was testing specimen are available to analysis specimen taken the breath testify. from the defendant and at the bottom The second of foregoing the two condi- signed which the the test was results of however, operative, tions does not become Kosko and certified the State unless either to the cause demands Examiner, Chief Medical and was admit- Although such. it is clear that T.C.A. § ted as an exhibit the trial. Dr. Staf- *4 require 59-1049 testimony does not the of ford then also testified Kosko was that unconfronted witnesses to be admitted into State, attending out of the medical evidence, merely but allows such evidence Mississippi.” school in to be admitted when the defendant does object; question the remains whether only The issue be considered herein to this violates the clause as confrontation

whether T.C.A. the 59-1049 violates con- § authoritatively has been by construed the frontation clause in Ar- which embodied courts. 1, ticle Section 9 Tennessee Consti- the. tution the the Sixth Amendment to Texas, 400, In Pointer v. 380 U.S. 85 S. Federal Constitution. In order resolve 1065, Ct. 13 L.Ed.2d 923 the (1965), United issue, foregoing questions the two must be Supreme States the Court held that Sixth First, answered. whether the admission of right Amendment applies confrontation testing the results of laboratory Kosko’s through to the states the Fourteenth respon- made a against” him “witness the However, case, Amendment. since that second, dent respondent whether has not set out the boundaries right “waived” of confrontation. fact, In rule. state of the con- See, frontation clause is one of chaos. e. provides pertinent T.C.A. 59-1049 § Evans, 74, g., Dutton v. 400 91 U.S. S.Ct. part: 210, 27 (1970); L.Ed.2d 213 Bruton v. States, 123, 1620, United 391 U.S. 88 S.Ct. provided “The certificate for in this sec- 20 L.Ed.2d (1968); 476 shall, California v. tion duly when attested Green, 149, 1930, 399 90 U.S. S.Ct. L. 26 duly ap- chief or his medical examiner Page, 489 (1970); Ed.2d Barber v. 390 U. pointed representative, be admissible 719, 1318, S. 88 20 S.Ct. L.Ed.2d 255 court, any any proceeding, as criminal (1968); Douglas Alabama, 415, 380 U.S. stated, evidence of the facts therein 1074, 85 S.Ct. 13 L.Ed.2d (1965). 934 of the results of test if person such Thus, gain guidance this Court can little speci- taking causing taken the from the Supreme United Court. States person men test performing available, specimen of such if shall be Nevertheless, having ex witnesses, subpoenaed upon as demand authority haustive search for that would cause, or, either to the un- when a bearing have on the the in outcome witnesses, appear able to shall as submit case, stant we the case have found deposition par- a upon demand either Beasley, United States F.2d 438 1279 ty to the cause.” denied, (6th 866, 1971), Cir. cert. 404 U.S. 124, foregoing paragraph 92 (1972), allows S.Ct. 30 L.Ed.2d 110 to be Therein, helpful. certificate to be evi Contended admitted defendant enunci- call United Court first failure to States that Government’s ated of Sixth Amend- laboratory processed the test waiver technician who “relinquishment or rights ment palm print a defendant’s from hold- latent right privi- a abandonment of known up note Sixth Amendment violated Similarly, Lea v. lege.” ex rel. his ac- right to confront and cross examine 669, Brown, thereto, 166 Tenn. S.W.2d response In the Court cusers. (1933), denied, 54 S.Ct. cert. 292 U.S. said: Court, in a (1933), 78 L.Ed. nothing have been accu- could “[T]here personal consti- split declared that opinion, testimony satorial in the technician’s that in- In the waived. rights can be tutional properly performed he the mechanical stant it clear prints ‘bringing on out’ the latent right personal any waived constitutional paper; the note he was therefore knowingly he Kosko because confront ‘against’ Appellant, Therefore, re- subpoena him. failed to guarantee Sixth Amendment of confron- spondent complain that he was now cannot tation cross examination deprived right. apply.” 438 F.2d at 1281. only possible question remain Likewise, testimony in the instant case ing is clause of T.C.A. last § whether Kosko, technician, laboratory However, hav is constitutional. 59-1049 properly analyzed specimen he would 59-1049 ing previously that T.C.A. found not make a witness the re- *5 Kosko a witness the technician not make spondent. Thus, the re- admission the forego accused, the against and since the analysis, sults of the in breath not was vio- question factually this ing is before not lation the confrontation clause. Court, be question not said will considered. Moreover, Green, in California v. 399 conclusion, the at 161-162 hold that

U.S. 90 S.Ct. at 1936 In we (1970), Supreme the involun proof United is sufficient sustain States Court said to conviction, manslaughter and that T. tary concern most cases has of our “[t]he 59-1049, instant applied been . focused on C.A. situations [the] case, respondent’s right where to statements have been admitted did not violate necessarily fol the absence It (Emphasis declarant.” accusers. confront added). lows, therefore, the hold instant reverse In the Kosko that we Appeals and no statement and none admitted Court Criminal was evidence, therefore, trial judgment court. to affirm the nothing there was therefore, confront. It results that we

find and person per- hold that since CHATTIN, DYER, J., Mc- C. forming the test made “statement” and no CANLESS, FONES, JJ., concur. against” not “witness the defendant no there is violation the confrontation 1,

clause as in Article found 9. Section TO REHEAR PETITION OPINION ON Assuming however, that arguendo, Kos- has been filed petition A to rehear respondent, against” ko was a “witness alleged three errors the defendant in which question remains whether They are: urged are for consideration. his right waived of confrontation not demanding presence at Kosko’s trial. of this Honora- opinion “1. From thinkWe he did. Court, verily petitioner ble believes de- the fact that he overlooked Court Zerbst, 458, that Mr. Kosko 304 U.S. manded In Johnson 1019, he be cross-examined S.Ct. Court could (1938), 82 L.Ed. 1461 so

by petitioner; McCartney, it is true un- (1911). Tenn.App. he was not Cox v. subpoena your 242-243, 736, der petitioner 235, did but (1950). 236 S.W2d day know until the of the trial to rehear denied. therefore, present, peti- did not him have any tioner states that he did all that rea- DYER, CHATTIN, J., C. Mc- sonable man would do circum- under the CANLESS, FONES, TJ., concur.

stances. opinion given by In Hon- “2. they only orable the test cited given by

(sic) the officers as whether to your the in- petitioner was under intoxicate,

fluence of did but

seem presented to consider the witnesses petitioner. CITY OF MEMPHIS Robert R. Roberts petitioner

“3. Your to un- unable this Court derstand how came conclusion that Mr. Kosko not a was John M. BETTIS et al. him in this cause because Tennessee. Court of papers learned from the submit-

ted to them that SM-7 breath June 1974.

showed was .18 which above the allotted person.”

amount for a sober assignment

As the de No.

fendant represented by counsel, able

and if it was deemed material for the tech

nician testify as to the method used

making test, ample there was time

prior to the trial to either subpoena the deposition. to take A

can not wait until the date of trial com

plain of being witnesses not present. assignment

As to we did No.

consider testimony of the defendant witnesses,

and his and in opinion our

testimony of the defendant established be

yond a doubt that reasonable he was intox

icated at the time accident.

Assignment goes only No. 3 to de disagreement

fendant’s in with the Court’s

terpretation of law. Our were reasons

given opinion: original “The office

of a is to the atten to rehear call overlooked,

tion of the to matters court supposes those things which counsel improperly

were decided after consid full L

eration.” N Rd. Co. v. F. & G. & U. S.

Co., 658, 691, S.W. Tenn.