HAMILTON COUNTY. HON. STEPHEN M. BEVIL, JUDGE. First degree murder; Possession of prohibited weapon.
Permission to Appeal Granted June 2, 1997,
John K. Byers, Senior Judge, Concur: (See separate Concurring opinion) John H. Peay, Judge, (See separate Concurring in part Dissenting in part opinion) Jerry L. Smith, Judge.
The opinion of the court was delivered by: Byers
The defendant was tried by jury on September 20-23, 1994 and found guilty of one count of first degree murder and one count of unlawful possession of a machine gun.
In this appeal, the defendant presents the following issues for our review:
(1) Whether the trial court erred in allowing testimony of the deceased given in an unrelated matter in juvenile court and on police 911 tapes;
(2) Whether the defense trial attorney provided constitutionally ineffective assistance;
(3) Whether the trial court erred in allowing evidence of a prior conviction without proper notice of the State's intention to use the evidence for impeachment; and
(4) Whether the trial court erred in refusing to instruct the jury on voluntary manslaughter and other lesser charges.
Because the trial court failed to charge the lesser offense of voluntary manslaughter, the judgment must be reversed. A new trial is ordered.
At approximately 4:40 a.m. on July 24, 1993, Delany Thomas was found dead of a gunshot wound to his head as he sat in the driver's seat of his automobile in the alley adjoining his mother's home. The car's engine was still running.
Prior to discovering Thomas' body, the Chattanooga Police Department had received several telephone calls that morning concerning Thomas and defendant.
At 3:37 a.m., Thomas phoned 911 and reported that he ". . . had a conflict for my [unintelligible] momma's brother-in-law, he just shot at my car. He shot it up. There's some bullet holes in it right now. If they don't come, I'm gonna get him."
At 4:37 a.m., defendant phoned 911 and reported ". . . I believe I shot somebody . . . I followed him and he laying in the car . . . Get the police out here right now. The man might be dying, he might be dead, I don't know. He around the corner from me. He in a Cadillac . . . I got the gun in the house now . . ."
A police officer arrived and found defendant at his home. She went with defendant and defendant's brother to a nearby alley where she found Thomas dead in his car. Defendant's brother went into defendant's house, brought out a Norinco AK-47 semi-automatic rifle and gave it to the officer. Fourteen shells of bullets from the rifle were found in Thomas' car and on the street nearby.
Defendant gave a statement to police indicating that Thomas had fired gunshots at his home and that in response, he had chased Thomas and fired shots to draw Thomas away from his home. Defendant stated he only fired one shot toward Thomas, and then only because Thomas pointed a handgun at him from the auto.
The Hamilton County medical examiner testified that the victim was not facing the shooter when he was shot and that had the victim been holding a gun, the gun should have been in his hand or nearby in the auto. No such gun was found.
A neighbor testified that she heard shots and then saw a man drive up in a small car, get out, approach the alley, return to his car and leave. Soon afterward, she saw two men walk down the street, reach behind a wall, retrieve a gun while looking furtively around, and walk off.
Evidence was introduced at trial that Thomas was, at the time of his death, living with a woman whose daughter, Glorissa Buchanan, had been in a knife fight with defendant's sister, Valencia Williams. The week before Thomas was murdered, Glorissa Buchanan had been found delinquent at a juvenile hearing and sent to a juvenile detention facility.
Defendant first raises the issue of whether the trial court erred in allowing testimony about Thomas' statement at Glorissa Buchanan's juvenile hearing. The following testimony is challenged:
Q: What did your boyfriend, Delaney Thomas, the victim in this case, what did he say about what Willie Williams did with respect to your daughter in court, what did he testify to?
A: He said when my daughter stabbed Valencia, Willie hit her with a ...