                                                     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.

                                  1
              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

                                     2
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.



                                     3
              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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