The opinion
FILED
January 5, 1996
Cecil Crowson, Jr.
IN THE COURT OF CRIMINAL APPEALS OF Appellate Court Clerk
TENNESSEE
AT NASHVILLE
MARCH SESSION, 1993
STATE OF TENNESSEE, )
) No. 01C01-9209-CC-00290
Appellee )
) Lincoln County
v. ) )
Hon. William Charles Lee, Judge
CARLA JO FITCH, )
) (First-Degree Murder)
Appellant )
CONCURRING OPINION
I concur with Judge Cornelius' reversal of this
case, but write separately to address other issues.
First, I agree with the grounds upon which the court
has reversed and remanded this case. The trial judge's
statement indicates either a dissatisfaction with the jury's
verdict or a misunderstanding of his authority to act as
thirteenth juror. An appellate court must grant a new trial
under both circumstances. Helton v. State, 547 S.W.2d 564,
566 (Tenn. 1977); State v. Andrew Lee Moats, No. 03C01-9302-
CR-00038 (Tenn. Crim. App., Knoxville, May 2, 1994), perm. to
appeal granted, (Tenn. 1994).
Secondly, because this case will be retried and
because of our obligation to the litigants and the
administration of justice, I note other egregious errors in
this record.
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The evidence of premeditation and deliberation in
this record is entirely circumstantial, consisting mainly of
proof relative to defendant's affair and planned divorce. In
order for circumstantial evidence alone to sufficiently
establish a requisite element, the facts and circumstances
must be such that the "jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable
doubt." State v. Crawford, 470 S.W.2d 610, 613 (Tenn. 1971).
The state's theory is that defendant murdered her
husband to assure she would get custody of her children or to
collect his life insurance proceeds. These inferences are not
sustained by the proof.
Both defendant and her husband were dedicated to the
children. Nothing in the record suggests that defendant had
any reason to fear that she would be denied custody. Further,
neither defendant nor her lover had financial concerns.
Defendant had a good job with prospects of better employment
after she finished college.
More importantly, the state's expert detailed the
methods by which this gun could have fired. In addition to
the method which would indicate a deliberated, premeditated
murder (cock the hammer, pull the trigger), it is equally
likely that the gun could have fired by the exact method
defendant claimed (hammer is back, finger on trigger, victim
reaches and pulls gun toward him).
While I do not go so far as to conclude that the
evidence was insufficient to establish premeditation and
deliberation, I, nonetheless, urge the state to consider the
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scant nature of the evidence on these essential elements on
retrial. See State v. West, 844 S.W.2d 144, 147 (Tenn. 1992);
State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992).
As her second issue defendant alleges several
incidents of prosecutorial misconduct. The court determined
that the issue was pretermitted. I do not agree. While I do
not find it necessary to determine whether these incidents
would require a reversal, I believe that we are obliged to
address the issue, particularly in light of the seriousness.
Three of the specific errors alleged concern the
prosecution's failure to produce evidence, including
defendant's statement pursuant to Rule 16, Tennessee Rules of
Criminal Procedure, witness Wanda Fitch's statement pursuant
to Rule 26.2, Tennessee Rules of Criminal Procedure, and
exculpatory information pursuant to Brady v. Maryland, 373
U.S. 83 (1963). The fourth addresses the prosecutor's closing
argument which suggested that defendant had conspired with her
lover to murder her husband despite the absence of facts to
support that conclusion.
The three discovery violations were serious.
Defendant was entitled to all of her "written and recorded
statements" and "the substance of any oral statement which the
state intended to offer in evidence." Tenn. R. Crim. P. 16.
The state's claim that discovery was not required since the
statements were not a part of the "official report" is without
merit. Likewise, the claim that the statements were not
discoverable because they were not in response to
interrogation is incorrect. Defendant should have been given
these statements prior to trial.
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Likewise, the statements of witness Wanda Fitch
should have been produced, at least after her testimony.
Tenn. R. Crim. P. 26.2(a). The state's claim that they did
not have or were not aware of having the statements does not
excuse the mandatory obligation imposed by Rule 26.2.
Likewise, the fact that defendant may have access to a witness
who has provided exculpatory information does not necessarily
negate the obligatory Brady disclosure.
As to defendant's prosecutorial misconduct claim, we
emphasize again for the benefit of the bar that it is
unethical for counsel to make arguments that have no basis in
fact. D.R. 7-102(a)(5), Tenn. Sup. Ct. R. 8. The court
should disallow such conduct on the part of counsel, even
absent objection. See State v. Sutton, 562 S.W.2d 820, 823-26
(Tenn. 1978).
The other issues raised by defendant do not merit
consideration given the disposition of this appeal. For the
reasons I have given I concur in the reversal of this
conviction and the remand for a new trial which, at either
party's option, may be before a different judge. Tenn. R..
Crim. P. 33(f).
____________________________________
Penny J. White, Judge
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