author: TATUM, Judge.

text:
    Walter HEMBREE and Lola Hembree, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 4, 1976.

      Ben Hooper, II, Newport, John F. Dug-ger, Morristown, for appellants.
    R. A. Ashley, Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, for appellee.
   OPINION

TATUM, Judge.

Appellants, Walter Hembree and his wife, Lola Hembree, and their son, Larry Hembree, were indicted in Cocke County for murder in the first degree. There was a joint trial that resulted in Walter Hem-bree being convicted of Murder in the Second Degree and sentenced to serve 10 years in the State Penitentiary. Lola Hem-bree was convicted of involuntary manslaughter and sentenced to 11 months 29 days in the County Jail and Larry Hembree was acquitted. We must reverse the convictions.

The evidence accredited by the jury was that on April 10, 1974, and prior thereto, Walter Hembree had an arrangement with a poultry company to catch chickens purchased by the company. All three appellants engaged in this activity and Glen Ball and the deceased, Jimmy Henderson, assisted them. These two young men had spent the previous night with the Hembrees, catching chickens, and they intended to catch chickens the night of April 10. Ball and Henderson were about 16 or 17 years old.

In the late afternoon on that date, these persons were all at the Hembree residence. Lola Hembree was in the back room taking a bath. Glen Ball went to Walter Hem-bree’s automobile to get wirepliers. He found no wirepliers in the automobile but found a .22 caliber pistol and brought it back into the house and gave it to Walter Hembree, telling him, “Here is your ole gun before you get caught with it.”

Walter Hembree was “waving” the gun around and Henderson told him that he had better put the gun down before he shot someone with it. Whereupon, Walter Hem-bree pointed the pistol at Jimmy Henderson and shot him in the chest. There had been no ill will or argument or difficulty of any kind between any of the parties prior to the shooting.

The deceased, Jimmy Henderson, walked outside to the road where he fell. He was alive when loaded into the automobile of Walter Hembree to be taken to a hospital. Larry Hembree was not in the room when the shooting occurred.

Lola Hembree, while still taking a bath, heard the shot fired but at first thought it was the television until she heard Larry Hembree scream. She put on a robe and went outside and assisted in placing deceased in the automobile. She was completely nude except for the robe. She was wearing no shoes.

Prior to leaving, Walter Hembree threw the gun outside into the yard.

Lola Hembree and Walter Hembree brought the deceased to Mim’s Clinic in Newport. Lola Hembree was still dressed only in the robe. Walter Hembree went inside looking for nurses and Lola Hembree took the car and went back to her home which was about six miles away.

Ball and Larry Hembree started to the hospital in another automobile when Ball told Larry Hembree to “wait a minute”. Ball went into the Hembree home and found a nylon string. He made a loop in the string, found the pistol, hooked the loop of the string over the pistol handle and brought the pistol back into the house and laid it on a cushion on the couch. Larry Hembree was waiting outside.

Immediately after nurses were procurred at Mim’s Clinic, Walter Hembree ran across the street to the Courthouse and told Sheriff Bobby Stinson that Jimmy Henderson had shot himself and that the gun was at his home.

Whereupon, the Sheriff deputized one Fred Barnes. Barnes and the Sheriff went in the direction of the Hembree home which was about six miles from town but met Lola Hembree coming back to town. The officers blocked the road and the Sheriff read Lola Hembree her Miranda rights and asked her why she left Mim’s Clinic. She told them that she wanted to notify Jimmy Henderson’s parents and to get a preacher to pray for Jimmy. She had clothed herself while at home. The Sheriff told Lola Hem-bree to follow them to her home, that they wanted to look for the pistol. They asked her if “she cared if we go in the house,” and she replied in the negative. The officers searched the house and premises but did not find the pistol.

All of the Hembrees and Glen Ball were placed under arrest. Glen Ball then told the officers that he took the gun in the house with a string. The Sheriff asked Deputies Roger Stinson and Fred Barnes to accompany Ball back to the Hembree home to search for the nylon string and Larry Hembree consented to go for that purpose. Barnes, Roger Stinson, Larry Hembree and Ball then returned to the home where officers made a search and found a piece of nylon string under a pillow on the couch.

Subsequently, Glen Ball confessed to appellants’ attorney, to officers and to the Juvenile Judge of Cocke County that he had shot Jimmy Henderson. He then repudiated this confession claiming that Lola Hembree and her son, Ricky, had threatened to kill him if he did not confess. Ball repudiated the confession in the office of the Juvenile Judge in the presence of the Sheriff and Ball’s father, who was a part-time Deputy Sheriff.

Appellants’ proof was that Ball and Henderson were pitching the pistol back and forth to each other and that Walter Hem-bree was asleep on the couch and did not know of the shooting until it was over and that Ball had told several persons that he had accidentally shot Henderson. There was sharp conflict in the testimony and theories of the State and the defendants. There was evidence of many inconsistent prior statements made by each of the four surviving parties who were at the Hembree home when this tragic and unnecessary shooting occurred.

In the first two assignments of error, appellant states that there is no material or substantial evidence to support the verdict of the jury as to the defendant, Lola Hem-bree, and that the evidence preponderates against the verdict of the jury and in favor of her innocence. We must agree.

All of the evidence is that prior to the time the pistol was brought into the house, Lola Hembree went into a rear bedroom to take a bath and she remained there until after the fatal shot had been fired. The State says that we should sustain Lola Hembree's conviction as a principal (aider and abettor) on the following grounds: (1) That she had knowledge of the existence of the gun; (2) that she eagerly assisted in the disposition of the body; (3) that she went back to the Hembree home after taking the body to the hospital or clinic; (4) that she did not tell Jimmy Henderson’s family of the shooting; (5) that she did not procure a preacher; and (6) that the gun was not found after Lola Hembree returned to the home.

The State relies on Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895 (1963), in support of its contention that the conviction of Lola Hembree as a principal should be sustained. In the Flippen case, the defendant was a passenger in an automobile being driven at an excessive rate of speed and ran into the rear of another automobile knocking it into a lake and drowning a small boy. We will not detail the evidence here in the Flippen case but it is sufficient to say that the Supreme Court, in affirming the conviction of Flippen for involuntary manslaughter, found that there was evidence that he was an actual participant in the crime. The Court, speaking through Justice Burnett, said:

“As we see it there must be some evidence of a participation in the crime before one can be convicted as an aider and abettor. By § 39-109, T.C.A., aiders and abettors are deemed principal offenders and may be punished as such. Before one can be thus convicted there should be some evidence, at least circumstantial, that the aider and abettor participates in the crime. This record contains some evidence and many circumstances of his participation. An excellent statement of what is required may be found in 16 C.J. § 112, page 125; 22 C.J.S. Criminal Law § 85.” 365 S.W.2d 895, at 899.

Thus, we see that the Supreme Court in Flippen v. State, supra, recognized that in order to aid and abet another to commit a crime, it is necessary that accused in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree. Jenkins v. State, 509 S.W.2d 240 (Tenn.Crim.App.1974).

T.C.A. Section 39-109, defining aiders and abettors, states as follows:

“39-109. Aiders and abettors deemed principal offenders.—All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such.”

There is no evidence that Lola Hem-bree could have known of or participated in the shooting. All of the evidence is to the contrary and we find absolutely no evidence upon which conviction of Lola Hembree could be predicated. Assignments I and II are sustained.

Assignments III and IV say that the evidence preponderates against the verdict of the jury and in favor of the innocence of the defendant, Walter Hembree and that under the evidence, the jury was not warranted in finding him guilty of second degree murder.

In Hawkins v. State, 527 S.W.2d 157, 160 (Tenn.Crim.App.1975), this Court said:

“The law in Tennessee is that all homicide is presumed to be malicious, and thus second degree murder, in the absence of evidence which would rebut the implied presumption. (Cases cited). To reduce the degree of the homicide the defense must prove an absence of malice, and a corresponding burden rests on the state to prove premeditation or some other ingredient to raise the degree of homicide. (Cases cited)
In Gann v. State, supra, the court stated the law in this manner:
‘The law in Tennessee is that all homicide is presumed to be malicious, in the absence of evidence which would rebut the implied presumption. (Cases cited) Likewise, if a weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, malice will be presumed from the use of the said weapon. (Cases cited) Thus, the proof of the use of deadly weapon is sufficient to sustain a charge of second degree murder unless it is rebutted by other facts and circumstances. (Cases cited)’ ”

It is true that the proof reveals no motive for this shooting. However, the evidence accredited by the jury does show that appellant, Walter Hembree, pointed the pistol directly at deceased and pulled the trigger without cocking it (double action). We think that the jury found that Walter Hem-bree committed an intentional assault on the deceased and purposely shot him and that the testimony of the State’s witnesses is insufficient, as a matter of law, to rebut the presumption of malice. This was a jury question and the evidence supports a conviction for second degree murder.

A jury’s verdict of guilty, approved by the Trial Judge, resolves all conflicts in favor of and establishes the State’s theory of the case and replaces the presumption of innocence with one of guilt. A guilty verdict will be disturbed only if the defendant shows that the evidence clearly preponderates against the verdict of guilty and in favor of the innocence of the accused. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). Assignments III and IV are overruled.

Complaint is made by appellants of an unresponsive statement made by the State’s chief witness, Glen Ball, to a question asked him by appellant’s attorney on cross-examination:

“Q. You, myself and Roger Stinson? And did you not tell Roger Stinson, on that occasion that you had that gun in your hands when it was discharged?
A. Yes Sir, then we . Roger Stinson and Bobby Bryant took me to Morristown and got a lie detector test.”

Appellant then moved to strike the testimony about the lie detector test as not being responsive. The Attorney General then said, “He asked the question, Your Honor”, and the Court said, “It was unresponsive”. The Court then said, “Sustained”.

The jury was then excused and appellant moved for a mistrial. The Court then stated that, “Almost every question and every answer has been disputed”, and held the answer concerning the lie detector test to be spontaneous and denied the motion for a mistrial.

As before stated, the witness, Ball, had previously confessed and then retracted the confession. He was the only witness who testified at the trial that Walter Hembree shot the deceased and Walter Hembree introduced substantial evidence that Ball had shot the deceased. The weight to be given the testimony of Ball was crucial. It is true that Ball did not testify as to the results of the lie detector test, but he did say that he was accompanied by officers to Morristown to take the test and any reasonable person listening to his response would conclude that he said this to bolster his testimony, i. e., that he passed the test. The Trial Judge did not specifically instruct the jury any further than to sustain the Motion to Strike.

The results of a lie detector test are inadmissible in evidence and the circumstances surrounding the taking or not taking of such test is likewise inadmissible. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391 (1964); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958).

The granting of a mistrial is in the discretion of the Trial Court where there is no abuse of that discretion. Layman v. State, 1 Tenn.Cr.App. 83, 429 S.W.2d 832 (1968); Jones v. State, 218 Tenn. 378, 403 S.W.2d 750 (1966).

In Brown v. State, 220 Tenn. 709, 423 S.W.2d 493 (1968), prejudicial and immaterial medical evidence was given against a defendant and he moved for a mistrial. The Supreme Court observed that if the jury were properly admonished and instructed, such error could not be prejudicial.

However, in the ease sub judice, we are not satisfied that this statement was not prejudicial. The proof was that either this witness or the appellant, Walter Hem-bree, shot the deceased and the jury’s knowledge of a successful lie detector test probably served to bolster and give greater weight to this witness’s testimony. In the light of all of the circumstances in this particular case, we do not believe that the prejudice was cured by the sustaining of the motion to strike and we are obliged to sustain Assignment V.

The Sheriff testified that Walter Hem-bree, after receiving his Miranda warnings, told him that the deceased had shot himself and then that he, Hembree, had thrown the gun into the yard. He said that Lola Hem-bree was present during this interrogation and at one point Lola Hembree told her husband, “Just hush, don't say nothing else”. Whereupon Walter Hembree, “shut up”. The next day, Walter Hembree repeated his previous statement to the Sheriff in the presence of the District Attorney General.

Appellants complain of the Court admitting into evidence the statement made by Lola Hémbree to her husband admonishing him to speak no more and allowing testimony that he did not talk further on that day. This was merely a comment on the scope of the defendant’s statements and not a reference to the refusal of the defendant to make any statement at all. The defendant, Walter Hembree, had made numerous statements prior to the time he was admonished by his wife and made statements thereafter. His subsequent statement constituted a waiver of his Miranda rights. Bowling v. State, 3 Tenn.Cr.App. 176, 458 S.W.2d 639 (1970). It is not prejudicial for an officer to say that after making a statement or answering a question the one being interrogated refused to make any other statement and to give the circumstances of his refusal, when the accused voluntarily repeated the same statement on the following day. This evidence was not prejudicial. Assignment of Error VI is overruled.

Appellants next complain that the Court erred in admitting evidence showing the result of the first search of the Hem-bree home when accompanied there by Lola Hembree. A suppression hearing was held in the absence of the jury and the Sheriff testified that Lola Hembree had given her consent and permission to make this search. The Court so found and the finding was supported by the evidence. The search was legal. McCravy v. Moore, 476 F.2d 281 (6th Cir.1973). Assignment VII is overruled.

' The second search was made after Walter Hembree, Lola Hembree and their son, Larry Hembree, had been arrested. All three were in custody and the officers sought and obtained consent and cooperation from the son, Larry Hembree, without consulting with his parents, both of whom were readily available. We are now confronted with the question as to whether the consent of a son living with his parents is binding on the parents when the son and both parents are in custody and the parents are readily available to give or withhold their consent. No effort was made to obtain a search warrant.

The general-rule seems to be that a son or daughter cannot waive the rights of a parent. Davis v. U.S., 327 F.2d 301 (9th Cir.1964); U.S. v. Linderman, 32 F.Supp. 123 (D.C.E.D.N.Y.1940); People v. Jennings, 142 Cal.App.2d 160, 298 P.2d 56 (1956); Padron v. State, 328 So.2d 216 (Fla.App.1976).

The record does not show the age of Larry Hembree when he gave consent to this search but it does reflect that he could not have been more than 18 years of age. We have several cases holding that a husband’s constitutional rights are not violated when a search is conducted with the permission of his wife. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288 (1965); McCravey v. State, 2 Tenn.Cr.App. 473, 455 S.W.2d 174 (1970); Luallen v. State, 2 Tenn.Cr.App. 329, 453 S.W.2d 453 (1969); McGee v. State, 2 Tenn.Cr.App. 100, 451 S.W.2d 709 (1969). In Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545 (1946), it was held that where there was not a good relationship between husband and wife as where the wife was angry at her husband and hostile toward him, she could not waive his rights. The cases where the waiver of the husband’s rights by the wife has been sustained are all bottomed on the principle that husband and wife have equal rights to use or occupation of the premises and in these cases the absent spouse was not shown to be at home when his rights were waived. The rights of an 18 year old son to the use or occupation of the premises are not necessarily equal to the rights of use or occupation of his parents.

We hold that when parents are in custody of the law along with their son and are equally accessible to give or withhold consent to search, the consent and cooperation to a search by the son does not waive constitutional rights of his parents.

Recently, the Supreme Court of the United States in U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), discussed the criteria concerning the validity of searches based upon third party consent. The rule was therein stated, at 94 S.Ct. at page 993;

. more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” (Emphasis supplied)

Lola Hembree gave consent to the Sheriff to make the first search and she accompanied the officers while making this search. This did not amount to a continuing consent for different officers to make subsequent searches when she was not present. Assignment VIII is sustained.

Appellant complains that he was denied a fair trial because the members of the Cocke County Sheriff’s Department who guarded the jury were defendants in a law suit filed by appellant, Walter Hem-bree, against the Sheriff’s department officers in Federal Court for violation of his civil rights. Appellant cites no authority and there is no showing that prejudice resulted from custody of the jury by these officers. There is no showing that the officers in charge of the jury communicated with them in any manner inconsistent with their duties and no showing that the jury was influenced by them. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759 (1958). This assignment must be overruled.

Appellants say that they were denied a fair trial by virtue of the fact that State witness, Deputy Fred Barnes, communicated with members of the jury during the course of the trial. There was a hearing concerning these facts on the Motion for a New Trial. Several witnesses testified for both the State and the defendants. After hearing the evidence, the Trial Judge found that Fred Barnes did not communicate with members of the jury. The findings of the Trial Judge are conclusive upon us unless we find that the evidence heard on the motion hearing preponderates against the lower court’s judgment. Nix v. State, 530 S.W.2d 524 (Tenn.Crim.App.1975); Bratton v. State, 477 S.W.2d 754 (Tenn.Crim.App.1971). We do not find that the evidence heard on the motion for a new trial hearing preponderates against the Trial Judge’s finding. Assignment X is overruled.

Appellants contend that the Court erred in overruling their Motion for a Severance. The granting of a severance is a matter of discretion with the Trial Court and unless that discretion is abused, the action of the Trial Court will not be disturbed upon appeal. Monts v. State, 214 Tenn. 171, 379 S.W.2d 34, (1964). There is no showing that either defendant was prejudiced by the denial of their motion for separate trials. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969). Assignment XI is overruled.

Appellants next contend that they were denied effective assistance of counsel by requiring counsel to try the case from 9:00 o’clock one morning until approximately 1:00 o’clock a.m., the next morning.

Court convened at 9:00 o’clock a.m., and after hearing preliminary matters, a jury was picked. The defendants did not commence with their proof until 8:00 o’clock p.m. A few minutes before Midnight, appellants’ counsel advised the Court that they were tired and could not effectively assist their clients. Counsel told the Court that due to fatigue, his mind was not functioning clearly and counsel asked the Court to adjourn until the next day. The Trial Judge did not adjourn for the day but continued for another hour and adjourned after hearing all of the evidence at 1:00 a.m. Court was to convene at 9:00 o’clock a.m., that same morning.

The Sixth Amendment guarantees to a criminal defendant the right to effective assistance of counsel at every step in the proceedings. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); McKeldin v. State, 516 S.W.2d 82 (Tenn.1974). The last hour of a trial is an essential portion thereof. We hold that the Court erred in not adjourning at Midnight when counsel stated that they could no longer be effective and that they were not thinking clearly.

We are also mindful of the fatigue of the jurors. We think that absent unusual and compelling circumstances, the jury should not be permitted to listen to evidence until 1:00 a.m. No reasonable cause was given for proceeding until this hour and a defendant being tried for murder is not only entitled to reasonably alert counsel, but to witnesses who are reasonably alert and that the jury should likewise be clear-headed and not unduly fatigued. We think that the 14th Amendment of the United States Constitution and Art. 1, § 8 of the Tennessee Constitution grants appellants these rights.

This is not to say that night sessions per se are improper under unusual circumstances; however, we do hold that night sessions should be terminated at a more reasonable hour, absent consent of the parties and all members of the jury.

Before we can hold a Federal constitutional error to be harmless, we must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); McKeldin v. State, supra. We cannot declare a belief that the error is harmless beyond a reasonable doubt and we must therefore affirm Assignment XII.

The judgment of the Trial Court is reversed as to both defendants. The case is dismissed as to Lola Hembree and remanded for a new trial as to Walter Hembree.

WALKER, P. J., and GALBREATH, J., concur.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    Johnny Russell BROWN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 13, 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.
    Robert H. Schwartz, Seth W. Norman and Vance Cramb, Jr., Nashville, for appellant.
    R. A. Ashley, Atty. Gen., David L. Ray-bin, Asst. Atty. Gen., Nashville, Thomas H. Shriver, Dist. Atty. Gen., and Michael D. Noel, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

GALBREATH, Judge.

The defendant came to the office of William Gambill, his business associate, after threatening to made the latter’s wife a widow and shot him some four times with a pistol during an argument overheard by a number of witnesses and then fled to Kentucky. In a number of assignments of error he challenges the sufficiency of the evidence to support the jury’s verdict finding him guilty of murder in the second degree and fixing punishment at life in prison.

The defendant claimed that Gambill, whom he blamed in large measure for domestic and business difficulties, reached for his pocket in a threatening manner, but the theory of self-defense was rejected by the jury. The evidence supports the verdict. See McClain v. State, 1 Tenn.Cr.App. 499, 445 S.W.2d 942 (1969).

Even if it is eventually determined that the death penalty provisions of T.C.A. 39-2405 are unconstitutional, as the majority of this panel held in Morgan v. State, Hamilton County, November, 1975, now pending before our Supreme Court for review, this would not cause us to sustain appellant’s assignment of error based on the alleged infirmity. A ruling on the constitutionality will not affect otherwise valid convictions in which the death penalty is not imposed, or even where it has been imposed but commuted. See Bowen v. State, 488 S.W.2d 373 (Tenn.1972). Here the conviction was not even for the offense subject to capital punishment. The punishment imposed, while formerly reserved for murder in the first degree, was fixed within limits set for murder in the second degree by the General Assembly, and we cannot say that it was excessive under the facts which would have supported a conviction for murder in the first degree.

The assignments of error have been considered and are overruled.

Affirmed.

RUSSELL, P. J., and DAUGHTREY, J., concur.


author: DUNCAN, Judge. DWYER, Judge.

text:
    Johnny WALLIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 19, 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.

      Shockey, Boehm & Pinchak, Chattanooga, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., David Rotroff and Jerry Sloan, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   DUNCAN, Judge.

OPINION

The appellant, Johnny Wallis, was convicted in the Hamilton County Criminal Court, Division I, of receiving stolen property, and received a penitentiary sentence of not less than 3 years nor more than 6 years.

In one of his assignments of error, the appellant maintains that his counsel was denied an opportunity to rebut the State’s jury argument. We find merit to this assignment.

The record shows that at the conclusion of the proof, the trial judge asked the parties’ counsel if they wished to address the jury. The State’s counsel replied in the affirmative, stating that he would open. The record shows no response by the appellant’s counsel. The State’s counsel then made a short argument to the jury, generally explaining to them their duties and responsibilities; however, he did not comment on the facts of the case. At the conclusion of the State’s opening argument, the appellant’s counsel, obviously seeing the advantage that might accrue to his client because of the innocuous nature of the State’s opening argument, declined to present an argument, stating: “Your Hon- or, the defendant will stand on the proof.”

The judge then stated that he intended to permit the State’s counsel to close the arguments, and offered the appellant’s counsel the opportunity to reconsider his decision not to argue. The appellant’s counsel commented that he wanted “an opportunity to rebut any comment or any jury argument made by the State”; however, the court advised him that if he waived argument, the State could still present a closing argument, and that appellant’s counsel would “have nothing to say to the jury” after the State’s argument. The court then addressed the State’s counsel:

“Mr. Rotroff, if you have anything further which you would have said in your closing argument, you may conclude it; the defendant, through his attorney, having waived his right to address the jury.”

The State’s counsel then presented a closing argument to the jury which was three times longer than his opening argument. In the closing argument, he very competently, effectively, scathingly, and specifically attacked the appellant, his witness, and the defense theory, at the same time pointing out the meritorious reasons why the jury should accept the State’s proof and its theory. After this, the appellant’s counsel requested the opportunity to present a rebuttal argument, but this request was denied by the trial court.

We realize that on some occasions when the State waives its opening argument, or only presents a mild and not overly harmful opening argument, a defendant may waive any argument so as not to open the door to a scathing closing rebuttal by the State. For strategic reasons, a defendant may do this simply to have the case submitted to the jury without having facts that could be quite harmful to him recalled by the prosecution in its final argument.

In Tennessee, the uniform practice and procedure in the trial of criminal cases accords the State the right to open and close the argument to the jury, subject always to the discretionary authority and power of the court to regulate and control arguments of counsel to meet the exigencies of particular situations. Absent a manifest abuse of the trial court’s discretion to the prejudice of the defendant, the appellate court will not intervene to revise its action. Myers v. State, 3 Tenn.Cr.App. 414, 462 S.W.2d 265 (1970).

The general law that gives the State the right to open and close arguments is subject to some qualifications. If the defendant waives the right to respond to the State’s opening argument, then ordinarily the State should have no right to present an additional argument. In an early civil case, the Tennessee Court of Appeals held that if the plaintiff’s counsel gave an opening argument but did not consume the time allotted for argument and thereafter insisted on using the remainder of the time after the defendant had waived his right to argue, then the plaintiff had no right to give a closing argument. White v. White, 9 Tenn.App. 654, 661 (1929). In that case, the court said:

“Presumably counsel for plaintiff exhausted all the time wanted in opening the case and saved the rest to reply to counsel for defense, and when counsel for the defense declined to argue the case, there was nothing to reply to.”

In Tindall v. State, 99 Fla. 1132, 128 So. 494, 498 (1930), the Supreme Court of Florida said:

“While an attorney may not be required to make the opening argument (or if he makes a pretended one), yet the trial court, exercising its discretion, may permit opposing attorney to reply to any new material matter brought out on the former’s second or closing argument. Otherwise serious damage may result and possibly a farce be made of what ought to be an important step in the trial. In fact, it may even constitute reversible error for the trial court to unreasonably limit the time for argument to the jury. May v. State, 89 Fla. 78, 103 So. 115. See 16 C.J. 893, § 2234. Also where the attorney, having the opening argument, feigns or only makes a short statement, the opposing attorney may thereupon waive his right to argument and thus deprive his adversary of a reply; as was held in the case of Germak v. F.E.C. Ry. Co., 95 Fla. 991, 117 So. 391, 392, wherein this court said:
‘The defendant’s counsel having made no argument, there was nothing to be met or replied to by counsel for the plaintiff, and the presentation rested upon the opening argument for the plaintiff.’ ”

In 3 Wharton’s Criminal Procedure § 521, at 441-42 (12th Ed. 1975), the following statement is made concerning jury arguments:

“Ordinarily, the prosecutor is entitled to make the opening argument and, after the defendant presents his argument, the prosecutor is entitled to make the closing argument in rebuttal. The prosecutor’s closing argument is limited in scope; he is allowed only to reply to arguments made by the defendant. To allow the prosecutor to introduce new matter during his closing argument would deprive defendant of the opportunity to respond thereto.”

In Myers v. State, 4 Tenn.Cr.App. 314, 322, 470 S.W.2d 848, 851 (1971), this court held that the trial court did not abuse its discretion in ordering the Attorney General to give a closing argument after all defendants had waived their arguments. A significant and material distinction between that case and the present case is that in Myers, counsel for one of the defendants had stated at the outset that he desired to present an argument.

In Myers it should be pointed out that the content of the argument was not in the record. Further, in that case, it was pointed out that “the trial judge felt that defense counsel had misled the Court and the District Attorney General and that this was not proper, . . . ” The Myers court concluded its holding by saying:

“Generally, the State has the opening and closing arguments. The closing argument is limited to a rebuttal of what has been argued. But the trial judge has a discretion in controlling matters of argument; and where, as here, the Attorney General would have been denied a chance to personally argue because he had been told that a defense argument would be made before he assigned the opening argument to his assistant, we hold that the trial judge did not abuse his discretion. Since the content of the argument does not appear in the record, nor was any part of it objected to, this assignment could not rise above the status of harmless error in this case. T.C.A. § 27-117.”

In the present ease, unlike Myers, the Attorney General’s arguments do appear in the record, and the record shows that the appellant’s counsel duly interposed objections to the argument proceedings that occurred.

Thus, the true rule which we glean from the cases is that it is in the discretion of the trial court whether a defendant’s counsel should be allowed to rebut the closing argument of the attorney general. In our opinion, it would be only in exceptional circumstances where the defendant’s right to rebut the State’s closing argument would accrue; however, we think those exceptional circumstances are present here. After the appellant waived his right to respond to the Attorney General’s opening argument, we think it was error for the trial court to permit the Attorney General to present a second argument in which he introduced an entirely new line of argument. The error was further magnified when the trial court refused to permit the appellant’s counsel to respond to the only real argument made by the Attorney General.

The right to be heard by counsel is basic to the rights of any defendant, and such right is guaranteed by both the Federal and State Constitutions. Article I, Section 9, Constitution of Tennessee; 6th Amendment, United States Constitution. In the present case, we think the appellant’s right to be heard by counsel has been abridged, and in our opinion, the appellant was prejudiced thereby. Thus, we sustain this assignment of error.

Next, we find it was also error for the trial judge to indicate to the jury that the defendant’s only witness, Richard Lambert, had testified falsely.

Lambert had been jointly indicted with the appellant, had entered a plea of guilty, and had a petition for probation pending at the time of the trial. When he was called as a witness, the trial judge asked him, outside the presence of the jury, if he and his attorney had “discussed any possible ill effects on his testifying.” In the jury’s presence, the appellant’s counsel asked him: “I’ll ask you whether or not the Court has instructed you, prior to your testifying, as to whether it may have a bearing on whether you get that suspended sentence or not?” The witness replied, “Yes, sir.”

Thereafter, the trial judge made these comments in the presence of the jury:

“And I might also point out that what the Court advised Mr. Lambert was not quite what you brought out before the jury. I didn't mention that this would have any effect whatsoever on his being considered for a suspended sentence. I tried to bring to his attention to find out whether or not he had considered whether he had to testify or not, and whether you had advised him in any way whether he should testify or not since you represented him, as it has come out. So he has no threat in any way that this will have any effect on him. It’s certainly a situation that he should have considered and should have been advised on, and to what extent I think he’s been advised has perhaps come out. But I want the jury to understand that that was not what the Court told him. So if there’s anything else with this witness, either side may ask him.”

From these statements, obviously the jury could only conclude that the trial judge believed that appellant’s witness had testified falsely in connection with the matter under discussion. Perhaps the witness had testified falsely, but we think it was not proper for the judge to give the jury his opinion; however, this error would not rise above the harmless error category since the trial judge, in his charge to the jury, left the question of the credibility of the witnesses up to the jury.

In another assignment of error, the appellant alleges that he was prejudiced because of certain remarks made by the State’s counsel. In questioning the State’s undercover agent, Don Morgan, about his use of an alias, the State’s counsel commented: “You like to live and breathe and eat.” The court sustained the appellant’s objection to this remark; however, during the State’s counsel’s closing argument, the trial court overruled the appellant’s objection to the following portion of his argument:

“And he used an alias, you know, Gordon. He used an alias and he took notes, and so that’s bad, you know, that’s bad because he didn’t want to get killed maybe, because he wants to protect his identity.”

In our opinion these remarks were improper but, standing alone, we do not think they would constitute reversible error. Nevertheless, they should not be repeated upon the retrial of the case.

We find no merit to the appellant’s complaint about the State’s counsel’s voir dire of the jury. We do not interpret his colloquy with the jurors as securing promises from them. State’s counsel only asked the jury if they would acquit the appellant if they had a reasonable doubt about his guilt, and conversely, if they found him guilty beyond a reasonable doubt, would they set an appropriate punishment. We do not see that any error has been committed here. Obviously, had a jur- or answered either of these questions in the negative, such juror would have been subject to a challenge for cause.

The purpose of voir dire examination of prospective jurors is to enable counsel to become acquainted with their qualifications, interests, or biases, as a matter of fact, presupposing their statutory competence, and to enable counsel to exercise peremptory challenges. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). The scope of inquiry on voir dire rests within the sound discretion of the trial judge. State v. Jefferson, 529 S.W.2d 674 (Tenn.1975); Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1947). We find no abuse of discretion on the part of the trial judge in this regard.

Likewise, we find no merit to the appellant’s allegation that the best evidence rule was violated when the court allowed the State to introduce into evidence a photograph of the stolen television sets as well as allowing testimony about the serial numbers on the sets.

After the television sets were recovered, the officers photographed them and transcribed the serial numbers. The sets were then released to an insurance company, which in turn sold them to an employee. At the trial, the photograph of the sets was introduced into evidence, and the officers testified from their records regarding the serial numbers that had been transcribed from the sets.

Initially, it seems to us that if the appellant really thought it would have been advantageous to have the actual television sets produced as exhibits at the trial, he could easily have accomplished this by a subpoena duces tecum.

As a general rule, there is no requirement that stolen chattels, such as television sets, be introduced as exhibits into evidence, for the best evidence rule applies only to writings and documents. Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); Williams v. State, 179 Tenn. 247, 165 S.W.2d 377 (1942). However, the question remains whether inscribed chattels come within the framework of the best evidence rule.

It has been held that a witness by parol may show the writing on a trunk tag; a license hanging on a wall; the marks on clothing and other personal property; the brands on a cow; the marks on the heads of certain barrels; or the numbers on tires or automobile license plates. 3 Wharton’s Criminal Evidence § 550, at 61 (13th ed. 1973), and cases cited therein.

Wigmore propounds what seems to be the best rule regarding inscribed chattels:

“. . . The rational and practical solution is to allow the trial court in discretion to require production of an inscribed chattel wherever it seems highly desirable in order to ascertain accurately a material fact.” 4 Wigmore, Evidence § 1182, at 422 (Chadbourn rev. 1972).

In the present case, the police officers who transcribed the numbers from the television sets were both experienced officers, and the numbers were plain, legible, and easily transcribed. Considering the bulky nature of the television sets, and the fact their absence was explained by showing that they had been transferred to a disinterested third person, we are convinced there was no violation of the best evidence rule. Under the circumstances, the trial judge did not abuse his discretion in this regard.

Finally, we see no merit to the appellant’s argument that the trial court erred in failing to allow him to present an offer of proof.

During the appellant’s counsel’s re-direct examination of appellant’s witness, Richard Lambert, the court sustained objections to several leading questions. The appellant’s counsel then stated he wanted to make an offer of proof. After the trial court declined the appellant’s counsel’s request to excuse the jury so he could make an offer of proof, the court advised him: “If you have any other questions for this witness, you may ask him.” Thereafter, a bench conference was held, but the contents are not in the record. The court then inquired: “Is there any other testimony to be offered on behalf of the defendant,” to which the appellant’s counsel replied: “No, sir.”

Thus, the record does not show what the nature of the offered proof would have been. The record does show that the court gave the appellant’s counsel an opportunity to rephrase his questions. Further, the record shows that the witness was freely and thoroughly examined by both the appellant’s and State’s counsel. We see no error on the part of the court with respect to this complaint.

For the reasons expressed in the first part of this opinion, this case must be reversed and remanded for a new trial. It is so ordered.

DWYER, Judge.

In concurring I agree it was prejudicial error to allow the State rebuttal argument when the appellant had waived argument.

ERNEST PELLEGRIN, Special Judge, concurs.


author: DWYER, Judge.

text:
    Melvin SEYMOUR et al., Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 21, 1976.
    Certiorari Denied by Supreme Court Jan. 24, 1977.

      Stanley Fink, Memphis, for Seymour.
    James E. Thompson, Memphis, for Fleming.
    Walker Gwinn, Memphis, for Conley and Booker.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Leonard T. Lafferty and John W. Pierotti, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

DWYER, Judge.

The appellants appeal from their conviction for committing the offense of murder in the first degree with assessment of confinement to each of them for thirty years.

The first trial and conviction of these appellants was reversed by this court in an unpublished opinion released by this court at Jackson, February 4, 1975.

With all four appellants contending that the evidence is insufficient, a brief narrative of that evidence will suffice to put these assignments of error to rest. This homicide occurred about 7:3P p. m. on October 16, 1973, in the Shelby County Jail. The decedent was an inmate confined in Cell Block B on the third floor of that jail along with the appellants. In the same cell block were seven Mexican nationals who, after being apprehended for illegally entering this country, were detained in the jail prior to being returned to Mexico by the Immigration and Naturalization officers of this country.

The seven Mexicans testified to witnessing the assault and brutal beating of the decedent inmate, a Curtis Moore, which began in the walkway in front of his cell and continued inside his cell on that evening. They all related that the four appellants repeatedly struck the decedent with fists, feet, a broom or mop handle and strangled him with a sheet. They also related that when the decedent crawled under a bench, the appellants dragged him out and continued the animalistic, senseless assault which resulted in his literally being beaten and strangled to death. With sperm found in the mouth of the decedent the assault carried with it depraved sexual overtones. The lifeless body of Moore was then placed on a bed in a cell and a blanket placed over it with detection of this homicide not occurring until the following morning. The appellants did not testify and offered no proof.

We think from the facts as outlined the evidence is sufficient to sustain this conviction. With the continued hitting and beating as described, plus the strangling, and evidence that the assault was predicated on vile, depraved sexual motivation, we are at a complete loss as to why this jury was so lenient. Nevertheless, we think the facts from which the jury could and did infer that the assault was committed with the premeditated design to bring about the death that ensued are sufficient. State v. LaChance, Tenn., 524 S.W.2d 933, 937, 938 (1975). The assignments as to the evidence are accordingly overruled.

Appellants, Conley and Booker, assign as error the trial court dismissing their plea in abatement without an evidentiary hearing, with reliance upon Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692 (1975), alleging that women were systematically excluded from the composition of the grand jury which returned the indictment. It suffices for us to say that the indictment in this case was returned a true bill on October 26, 1973; that Taylor was promulgated on January 21,1975, and its progeny Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) held that juries selected prior to the Taylor enunciation were not subject to attack on that basis. In short, Taylor is not retroactive; hence, its inapplicability here. These assignments are overruled.

We find no merit in appellants’ Seymour and Fleming assignment that the court erred in denying their motion for severance. With no evidence in the record to support a motion being made by Fleming or action by the trial court on such a motion, Fleming’s assignment is accordingly overruled. We find no abuse of the trial court’s discretion in overruling Seymour’s motion for severance based on his urging that there were too many lawyers, too many appellants and too much evidence for his client to get a fair trial being tried with the others. In Woodruff v. State, 164 Tenn. 530, at page 538, 51 S.W.2d 843, at page 845 (1932), the following may be found:

“. . .It may have been to the interest of each that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. The state, as well as the persons accused, is entitled to have its rights protected, and when several persons are charged jointly with a single crime, we think the state is entitled to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defendants.”

We find no such prejudice here. These assignments are overruled.

With Farris v. State, Tenn., 535 S.W.2d 608 (1976) holding that “every tub must stand on its own bottom”, the trial court’s charging T.C.A. 40-2707 was, we think, harmless error and did not affect the results in any manner. This assignment of all appellants is overruled.

The photograph of the decedent was probative to show the nature and extent of wounds for the jury’s consideration on premeditation of the assault. There was no abuse of the trial court’s discretion in allowing it into evidence. Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128 (1968). This assignment of Seymour and Fleming is overruled.

There is no merit in Seymour and Fleming’s assignment that the court erred in allowing the State to qualify the jury in informing them that part of the case would be on depositions. The voir dire not found in the record to support the assignment, it is overruled.

With our finding the evidence to be sufficient, there is no merit in Seymour and Fleming’s assignments that the court erred in failing to grant their motion for a directed verdict. These are overruled.

They next contend that the court erred in allowing the State’s attorney to argue that the Mexicans were outside the jurisdiction of the United States. With the argument not being in the bill of exceptions, this assignment is overruled.

In conclusion, the thrusting question in the appeal, ably argued by all parties, is that the testimony of the Mexicans was read to the jury from the transcript of the first trial over objection. The appellants assert that constitutional guarantees in both constitutions, Federal and State, include the guarantee of confrontation. They further urge that the State did not make a good faith effort to return the Mexican nationals for the trial. They support this contention by testifying that they were able in a few hours to telephonically contact one of the Mexicans in Mexico and also talked to another; that both were willing to return to Memphis if expenses were paid. The State introduced testimony which reflected letters being mailed to each of the Mexicans at the addresses given by the nationals to the immigration authorities offering to pay their expenses and also letters being sent to the chief of police in each state of Mexico where the Mexicans resided, requesting their assistance in locating these witnesses.

A reading of this record clearly shows that at the prior trial the Mexicans were all thoroughly cross examined by counsel for each appellant here; the testimony was obtained by a translator being used when it was apparent the Mexicans could not communicate in our English language. In short, there was complete constitutional confrontation at the first trial. Our Supreme Court has held that when a witness is beyond the jurisdiction of the court so that his presence cannot be secured at the trial, his prior testimony may be used. Stubbs v. State, 216 Tenn. 567, 574, 575, 393 S.W.2d 150 (1965). The Supreme Court of the United States reaffirmed the above holding in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

The fact that the appellants telephonically contacted one or more of the nationals does not dissuade us from holding that the trial court did not err in allowing the prior testimony, when the proof convinced him that the witnesses were outside the continental limits of this country. We are further bolstered in this holding by the prior opinion of this court reversing the conviction at the first trial. This court recognized that this particular evidentiary problem might arise and suggested this method of using the prior recorded testimony. These assignments of all appellants are overruled.

We are not impressed with the argument that, due to Tennessee Public Acts of 1973, Chapter 192, which was in effect at the time of trial, being subsequently declared unconstitutional, the issues in the latter trial were different and that appellants were deprived of the opportunity to cross examine about premeditation by the use of the recorded testimony.

We disagree. The indictment at the first trial charging first degree murder in common law form alleged premeditation. Chapter 192 was charged in its entirety by the trial court with a full dissertation of premeditation being the essential element of murder in the first degree. Under Chapter 192, as the court charged, first degree murder was one committed with premeditation or one committed willfully and deliberately under conditions as outlined in the Act. In other words, the appellants at the first trial could utilize cross examination to show a lack of premeditation or that the killing was not a malicious, deliberate killing of another inmate. With the chapter being found unconstitutional and the case sub judice tried on the same indictment with the same allegations and with the attorneys for the appellants being the same, the only issue not present at the second trial was the necessity of proving that the victim was an inmate. We think the issues at the sub judice trial were the same, for confrontation purposes. This assignment is overruled.

The last assignment of error, based on an affidavit of the translator of the Public Defender’s office reflecting that two of the nationals may have lied about their names, contends that this discrepancy was denied appellants for purposes of cross examination by the use of the prior testimony. With the affidavit not being in the bill of exceptions, it is not considered. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857 (1968).

This assignment overruled and all assignments found without merit, the judgment of the trial court is affirmed.

WALKER, P. J., and TATUM, J., concur.


author: RUSSELL, Judge.

text:
    John Henry SNEED, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 27, 1976.
    Certiorari Denied by Supreme Court Jan. 24, 1977.

      Thomas W. Moon and Bart C. Durham, III, Nashville, for appellant.

      R. A. Ashley, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

RUSSELL, Judge.

The appellant, John Henry Sneed, Jr., appeals his convictions on two charges of first degree murder in the shooting death of Rufus Watts and Mary Johnson, for which convictions he received consecutive life sentences.

The initial assignment of error questions the legal sufficiency of the convicting evidence in each case. We hold that the assignment is without merit.

The evidence reflects that the bodies of James Rufus Watts, and Mary Johnson were found by relatives on the morning of March 26, 1973, in a Chattanooga, Tennessee house where the victims resided as man and wife. Each had a massive gunshot wound to the back of the head. Watts was lying face down in the hallway, while Mary Johnson was face down behind a bar in the den area of the house. A small child was also found, barely alive, in the den area. No weapons were found in the vicinity of either body. The only evidence of a possible struggle was a small broken glass figurine which was found in the den area. Watts’ arms were outstretched in front of his head, and a rolled newspaper and a pack of cigarettes were in the vicinity of the outstretched hands. There was also evidence that Watts had keys in one hand.

The medical examiner testified that death to each was caused by a massive gunshot wound to the back of the head. Mary Johnson’s was a contact wound. Watts was found to have been dead for three or four days, and Mary Johnson was said to have lived vegetatively about twelve hours longer than Watts.

Four days before the bodies were found, one Leon Williams encountered Watts in Chattanooga, and Watts was driving his pickup truck. Watts was well known to Williams, and Watts invited Williams to come by his home later that day to view a juke box that Williams was interested in buying. Williams, accompanied by one Margie Pollard, did go by Watts’ home at about 6:00 p. m. He saw three cars in the driveway, two of which belonged respectively to Watts and Johnson, and the third being a Buick Riviera with Nashville license plates. Watts’ truck was not there. Williams went to the back door and knocked. He could hear music and voices, but no one answered. He identified one of the voices as Mary Johnson’s. The other was that of a male, but he could not identify the male’s voice.

Williams and Pollard left and returned in thirty to forty-five minutes, this time finding all three cars plus Watts’ truck present. Williams testified that he started to drive on by when Margie Pollard saw someone coming out of the front door. Williams turned his car around and parked it in front of the house. He and his companion then got out of his car and had a conversation in the street with the man who had emerged from the house. He identified that man as the appellant, John Henry Sneed, Jr. Williams testified that Sneed told them that Watts, Johnson and the baby had gone to the bus station. Williams and Pollard then left, and observed Sneed leave in the Riviera.

Margie Pollard testified and basically corroborated the testimony of Leon Williams. She first testified that the appellant appeared relaxed when they were talking with him in the street, but she later testified that he was sweating and nervous at that time.

The State, through Police Chief James Davis of Chattanooga, introduced a statement taken by him from Sneed on July 11, 1973, in Los Angeles, California. Sneed admitted being in the Watts house on March 22, 1973. He said that he had borrowed a car from a friend in Nashville and had driven it to Chattanooga to pay Watts $500.00 which he owed him. He stated that he had stayed at Watts’ house until that evening, talking, watching television and listening to records. Sneed further stated that Watts went out for a couple of hours during the afternoon, and that when Watts came back Watts and Mary Johnson got into a heated discussion. Sneed stated that he told Watts that he was going back to Nashville, and left the house. He stated to Chief Davis that he then saw a man known to him only as Leon, and a lady, and that he told them that Watts would prefer that they come back later. Sneed stated to the officer taking his statement that Watts had told him to say this. Sneed further stated that he then drove back to Nashville and returned the borrowed car. Sneed contended in this statement that both Watts and Johnson were alive when he left.

Chief Davis testified that the investigation continued for another year. As the result of other information received, Davis and Detective Lloyd Lemley went back to Los Angeles on July 29, 1974. They had with them two murder warrants for the appellant. On July 30,1974, after advice of rights and the signing of a waiver of rights form, Sneed gave a tape recorded confession to both murders. He stated that he and Mary Johnson began to argue while Watts was gone on the afternoon of March 22, 1973; that she approached him with a gun and he then reached for a gun that was behind the bar; and that they struggled over the gun and it went off. Sneed confessed that he shot Watts after struggling with him in the hallway when Watts was going for a rifle.

It was further testified that during the airplane trip back to Tennessee that Sneed said that he threw the murder weapon into a river.

Chief Davis further testified that during the taping of the July 30, 1974 statement, the tape recorder was not turned off and on except to check to see if it was working at the beginning of the statement and to change the tapes. He denied that there was ever any promise made of a low bond in return for the July 30, 1974 statement. Davis said appellant did ask him about bond after the statement was completed. Davis testified that he told appellant a reasonable bond would not be opposed since he had cooperated. Davis was corroborated on this point by witness David Paige.

Detective Lloyd Lemley of the Chattanooga Police Department testified that the taped confession was reduced to writing after he, Chief Davis and appellant returned to Chattanooga on August 1, 1974. Lemley testified that appellant read each page of the transcript and initialed it. The last page of the written transcript of the confession was signed by appellant.

David Paige, a California Drug Enforcement Agent, testified to a conversation he had with the appellant on June 25 or 26, 1974. At one point Paige asked, “You really didn’t kill those two people anyway, did you Johnny?” Appellant’s response was, “Well, you know how it is David. A nigger’s got to do what a nigger’s got to do.” Paige informed Chief Davis of this response one week later in a telephone call.

Appellant took the stand in his own behalf. His testimony regarding the events of March 22,1973 was similar to his July 11, 1973 statement. He testified that he was at the Watts house on March 22,1973; that Watts left in the afternoon; that Watts returned a couple of hours later and immediately began to have a discussion with Mary Johnson; that he then told them he was leaving; that upon leaving the house he saw Leon and a lady; that he told them to come back later, or words to this effect, because Watts had told him to say this; and that he then left in a car borrowed from a friend in Nashville. On cross-examination appellant said that the car was a Riviera.

Appellant further testified that his July 30, 1974 confession was taken while he was “strung out” on heroin and that he needed a fix on this occasion. He also testified that he was promised a low bond in return for the confession. He said that he was in a small room with five officers at the time he gave this confession and that he feared for his personal safety. For these reasons he decided to cooperate and wait until he got to court to tell the real truth. Appellant also contended that the tape recorder was turned off and on repeatedly on this occasion and that the officers were “coaching like Cecil B. Demille”. He said he repeated whatever they told him to because of the factors outlined above. Throughout his testimony, appellant maintained that he was being tried for these murders because he had failed to cooperate with an investigation into drug related activities concerning Nashville Police Officers. He said that his failure to co-operate with this same investigation was the reason he had had to leave Tennessee.

Chief Davis was recalled after appellant finished testifying. He denied that there was any coaching during the July 30, 1974 statement.

We think the evidence was more than sufficient to support these verdicts. Photographs of the crime scene and the testimony of the coroner clearly reveal that both Watts and Johnson were shot in the back of the head. The female victim’s wound indicated that she was killed by a shot fired from a gun that had been placed directly against the back of the skull. The photographs and testimony regarding the position of Watts’ body do not suggest a man madly rushing for a rifle. No rifle was ever found in the house and no weapon of any kind was found in the area of either body. The photographs of Watts do suggest a man who was shot from behind while walking down the hallway in his house holding an afternoon newspaper and a pack of cigarettes. The newspaper was dated March 22, 1973.

Whether premeditation is present in a given ease is a question of fact to be determined by the jury from all the circumstances of the case, including the use of a deadly weapon upon an unarmed victim. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966). The manner in which Mary Johnson was killed clearly indicates circumstances from which the jury could infer that she was shot after her killer had premeditated and deliberated on the consequences of his act. Such premeditation and deliberation may be formed in an instant. Clarke v. State, supra. The jury could also infer from the circumstances of James Rufus Watts’ death that he was killed by someone who was lying in wait. This would be sufficient in itself to support a verdict of murder in the first degree. Ervin v. State, 4 Tenn.Cr.App. 682, 475 S.W.2d 211 (1971).

Upon leaving the Watts house, appellant told Leon Williams and Margie Pollard that Watts, Johnson and the baby had gone to the bus station. The victims’ two cars and truck were parked outside the house at the time Sneed made this statement. Premeditation may be inferred from proof of a cool and calm bearing on the part of the appellant when the killing was done or immediately preceding or subsequent thereto. Taylor v. State, Tenn.Cr.App., 506 S.W.2d 175 (1973).

Of course we do not know exactly what factors convinced the jury of defendant’s guilt, but we do hold that there was ample evidence presented to support the verdicts, even without his confession; and that the appellant has failed to carry the burden which is his on appeal to show that the evidence preponderates against his guilt. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The second assignment of error cites several instances wherein it is contended that the State prejudicially showed criminal activity by the appellant which was unrelated to these murders. This assignment of error was not included in the motion for a new trial, in violation of Rule 14(5), Rules of the Supreme Court, which have been adopted by this Court. One may not raise questions for the first time in this Court, and the trial judge will not be put in error upon matters not brought to his attention in the motion for a new trial. Bolin v. State, 4 Tenn.Cr.App. 387, 472 S.W.2d 232 (1971). Not only was this assignment of error not raised in the motion for a new trial, but of the alleged instances of misconduct cited, only two were objected to at the trial. Objections to evidence are waived unless they are timely made and they cannot be raised for the first time on appeal. Phillips v. State, 2 Tenn.Cr.App. 609, 455 S.W.2d 637 (1970); Stone v. State, Tenn.Cr. App., 521 S.W.2d 597 (1974). The two objections made came about when the State characterized a California defense attorney’s advice to Sneed to keep silent as “impeding the progress of the police department”, which statement was withdrawn upon objection; and when objection was made to questions asked of appellant on cross-examination regarding a case pending against him in California, which objection was sustained by the trial judge. The second assignment of error is overruled.

The third assignment of error is in two parts. First, it is contended that the statement made by appellant to David Paige, “A nigger’s got to do what a nigger’s got to do”, was unconstitutionally admitted because no Miranda warnings were given. The second part of the assignment of error insists that the July 30,1974 confession was unconstitutionally obtained from Sneed at a time when he was on heroin by the promise of bond leniency.

The first part of this assignment of error was not included in the motion for a new trial and no objection was made to the testimony concerning this conversation. This part of the assignment of error is therefore not properly before this Court. See Rule 14(5), Rules of the Supreme Court, adopted by this Court; Bolin v. State, supra; Phillips v. State, supra; and Stone v. State, supra. However, even if this alleged error were properly raised, it would still have no merit because we do not think this conversation occurred in the custodial interrogation setting that Miranda addressed itself to.

This conversation took place on June 25 or 26, 1974 while Agent Paige and Sneed were riding in Paige’s automobile. Sneed had requested Paige’s help in locating Mrs. Sneed who had been arrested. Appellant and his wife had been working with Agent Paige as informants. Paige testified that Sneed initiated the conversation in which the statement was made. Paige knew that the Chattanooga Police Officers had previously questioned appellant regarding the two murders since he helped set up the July 1973 interview with Sneed. Paige testified that appellant asked him if he had heard anymore from the Chattanooga authorities about the murders in Chattanooga. Paige replied that as far as he knew the case was closed. Sneed responded that it looked like the investigation was opening up again and that according to the papers it was pointing toward him again. After some more conversation Paige asked appellant, “You really didn’t kill those two people anyway, did you Johnny?”. Sneed replied, “Well, you know how it is David. A nigger’s got to do what a nigger’s got to do”.

Appellant testified that David Paige initiated the conversation in question. He corroborated Paige’s testimony that the conversation took place in Paige’s car while they were looking for his wife. Sneed denied saying, “A nigger’s got to do what a nigger’s got to do”.

The United States Supreme Court said in Miranda v. Arizona, 384 U.S. 346, 86 S.Ct. 1602, 16 L.Ed.2d 694:

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Appellant requested this Drug Agent’s help and he received it. He was not in custody while they were riding around looking for his wife. As appellant contends, it is probably true that the Chattanooga Police Department’s investigation into these murders had focused on him by the time he made this statement. However, this fact would not require that he be given the Miranda warnings before he made this statement, because he was not in custody at the time. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976).

As mentioned earlier, appellant also contends in his third assignment of error that the July 30,1974 confession was unconstitutionally obtained. Appellant contends that he was “strung out” and needed a fix of heroin when he made this confession. Appellant’s attorney in California at that time testified he talked to his client by telephone before the confession was given. He said that appellant sounded like a sick man when he talked to him. Chief Davis testified that in his professional opinion John Henry Sneed, Jr. was not withdrawing from drugs when he made this confession.

Appellant testified that Chief Davis told him on July 30,1974 that they had to get a statement, that they didn’t care how it went as long as it sounded good, that if appellant would do this he (Davis) would see that bond was set as low as possible. When they returned to Tennessee Sneed said that Davis did suggest to the judge that a low bond be set. Sneed in fact was released on a total bond of $10,000 for the two first degree murders a short time after his return to Tennessee.

Chief Davis specifically testified that any statements regarding bond were made after appellant completed his July 30, 1974 confession. He was corroborated in this by David Paige. Davis also specifically denied that he asked the Judge setting bond in Tennessee to set a low bond. He did acknowledge that upon their return to Chattanooga, bond was set at $10,000 and that appellant was back on the street within a week.

The defense brief cites Smith v. State, Tenn.Cr.App., 512 S.W.2d 619 (1974), in support of its argument that a promise of low bond in return for a confession renders that confession inadmissible. Smith v. State, supra, at page 621 says in part:

“It is argued that the confession of the co-defendant could not have been voluntarily given because confessors’ low bond was at stake. At the pre-trial hearing to suppress this confession the defendant Hopkins testified that the police officers promised to help him in obtaining a low bond in return for his confession. This was refuted by the testimony of all the police officers involved, whose testimony was unimpeached. This alone takes this case out of the framework of Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922, where the police officers corroborated the testimony of the defendant in regard to the coercion used to solicit her confession.”

The facts of this case are consistent with those in Smith v. State, supra. We therefore think that the case does not support the appellant’s defense contention. In Smith the co-defendant’s confession was held not to have been given involuntarily.

There is another reason why appellant’s assignment of error regarding the July 30, 1974 confession cannot be sustained. Before Chief Davis’ testimony began, the Defense made a continuing objection before the appellant took the stand and moved the court to strike the July 30, 1974 statement. After a hearing, (out of the presence of the jury), the trial court overruled the motion and made the following findings: that appellant was properly informed of his rights; that he did talk to this attorney; that the attorney did not advise him not to make a statement: but, even if he had, the appellant then proceeded, having had the advantage of his attorney’s advice, to waive his rights; and that Sneed's attorney did not communicate with any of the police officers in attendance on this date. The determination of the trial judge as to the voluntariness of pre-trial custodial statements by the accused is conclusive on appeal unless the appellate court finds that the evidence touching those questions preponderates against the trial judge’s findings. Briggs v. State, Tenn.Cr.App., 501 S.W.2d 831 (1973).

Assignment of error number four alleges that the Assistant District Attorney’s closing argument was prejudicial. This assignment of error was also not raised in the motion for a new trial. Furthermore, of the instances cited as improper, only three were objected to at the time they were made. This Court will not consider an improper argument or remark of counsel unless objection is made at the time of argument. Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53 (1970); Rye v. State, Tenn.Cr.App., 532 S.W.2d 941 (1975).

The first of the objected to remarks indicated that appellant only had one conviction for wiretapping. After objection this statement was withdrawn. Later the prosecutor argued, “That’s the type of man you’re dealing with. He will prostitute himself. He’s done it in the past — he’s done it in the very recent past”. This statement was doubtless made to imply that appellant had perjured himself at the trial. An objection was made and sustained, and that part of the argument was ordered stricken from the record. In closing, the prosecutor argued for a punishment that would deter others contemplating such crimes. The trial court took the objection to this argument under advisement. Even if these questions were properly before us, we find nothing to show that they affected the verdict to the prejudice of the appellant, which is the applicable test. Jenkins v. State, Tenn.Cr.App., 509 S.W.2d 240 (1974).

The assistant district attorney did at one point interject his personal opinion as to the reliability of the appellant’s testimony. This is, of course, improper. State v. Beasley, Tenn., 536 S.W.2d 328 (1976). However, as previously noted, no objection was made to this argument, and the assistant district attorney did go on to point out to the jury that there is a presumption that a witness will tell the truth, and that they would have to be the ultimate judge’s of the witnesses’ credibility. In the light of all of the evidence we do not find that this remark prejudiced the appellant. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965). The assignment of error is overruled.

By his fifth assignment of error the appellant contends that he was denied a fair trial because the trial court refused to admit into evidence certain exculpatory evidence. There is no merit to this allegation. The alleged exculpatory evidence included an inter-office memo of the Chattanooga Police Department regarding a telephone call received by the police. The call provided possible information regarding the murders. List of names found in the Watts house were also alleged to be exculpatory in nature. This information was in fact supplied to the Defense by the State.

The Defense contends that these names should have been admitted because they showed possible motives for murder that persons other than the appellant may have had. The trial court did not refuse to admit this evidence. The court did find that it was premature to admit these names when the relevancy had not yet been proved.

The trial court found the memo to be possibly exculpatory, but also found it to be multiple hearsay; and ruled that the State had carried its burden regarding the memo when it was turned over to the Defense. We concur.

All of the assignments of error having been carefully considered and overruled, the convictions are affirmed.

GALBREATH and DAUGHTREY, JJ„ concur.


text:
    Bernard CAMERON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 22, 1976.
    Certiorari Denied by Supreme Court Jan. 24, 1977.

      Joe J. Harrison, Jr., Chattanooga, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Thomas Evans and Lawrence Young, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

GALBREATH, Judge.

This case involves a conviction for receiving stolen property. The defendant was identified by an apparently innocent purchaser of tools, valued by their owner at over $800.00, stolen a few days before in a Chattanooga burglary, on or about July 4, 1975, as one of three men who brought the property to his Georgia home where he paid $100.00 for the goods. One of the three men, also apparently innocent, testified that he assisted the appellant and his eodefend-ant, Bobby Pittman, in taking the recently stolen tools to Georgia after helping retrieve the goods from a vacant lot in Chattanooga. All in all the evidence amply supports the verdict of the jury finding the defendants guilty of receiving stolen property over the value of $100.00 and fixing the sentence at not more nor less than three years in the penitentiary. We, accordingly, overrule the appellant’s assignments of error challenging the sufficiency of the evidence. The co-defendant, Pittman, has withdrawn his appeal.

Another assignment of error concerns proof which was interjected at trial concerning a copy machine transported to Georgia along with the tools that was not listed in the indictment as stolen. It is here contended, inasmuch as the defendant was not accused of having guilty possession of this property, that it was prejudicial to permit testimony and argument concerning its possession. Nowhere in the record is it suggested that the copy machine was stolen. The first suggestion that such a machine existed was adduced by defense counsel on cross examination. The trial judge held that argument concerning the machine was relevant to questions concerning the credibility of the witnesses for the State. We fail to find that making the jury aware of the possession of the machine along with the property proved to have been stolen prejudiced the defendant. He received the minimum sentence fixed by law, so even if the admission of the evidence had been error, we would be constrained to point out that it did not work to the obviously guilty defendant’s prejudice and thus would not be grounds for reversal. See Landers v. State, 157 Tenn. 648, 650, 11 S.W.2d 868 (1928).

It is contended that the judge’s instructions were not complete because of the omission of a special request to charge the result that would have been mandated if the jury had determined that the defendant was motivated by an innocent purpose. We find that the charge as given adequately and fully covered the law on the subject. There was no need for the additional instructions requested. See Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962).

Finally, it is contended that the trial judge erred in charging the jury as to the inference that they may draw from the proof of the unexplained possession of recently stolen property. Our Supreme Court has recently restated the controlling rule in this State on the permissible inference flowing from seemingly guilty possession: “ . . . [W]e are of the opinion that insofar as our cases hold that unexplained possession of recently stolen goods raises a conclusive presumption of guilt, they are out of step with the weight of authority in our sister states and contrary to decisions of the United States Supreme Court. ... It follows that it is improper to instruct a jury that a presumption of guilt arises, that if unexplained, is conclusive, or any words of similar import.” Bush and Bolton v. State, 541 S.W.2d 391, 397 (Tenn.1976).

The reasonableness of an explanation offered by one found in possession of recently stolen property is primarily a question for the jury to determine from all the evidence, the fact of possession being usually but one item of proof. Mere consistency demands that in those rare instances where there is no evidence other than possession, and the explanation is believed by the jury or judge or where a reasonable doubt is created by the explanation, that the uncertainty enure to the benefit of the accused found in possession. This is the general rule to be applied in all cases involving only circumstantial evidence. See Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958).

In this case the trial court, in pertinent part, charged the jury as follows:

“The possession of fruits of the crime recently after its commission raises a pri-ma facie presumption of guilt which may be rebutted by direct evidence, attending circumstances, good character or otherwise. Possession of recently stolen property is circumstantial evidence from which the jury may draw an inference, and the jury may convict on this evidence alone, but it is not bound to do so. It is for the jury to determine what weight is to be given such evidence. The inference is strong or weak according to the character of the property, the nature of the possession and its proximity to the time of the theft.”

This charge is proper in light of our Supreme Court’s pronouncements in Bush, supra. In this case there was a great deal more than possession from which the jury was justified in determining guilt.

We have considered all the assignments and find none of them meritorious.

Affirmed.

RUSSELL and DAUGHTREY, JJ., concur.


text:
    Cecil Sam ROBERTS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 30, 1976.
    Jan. 17, 1977.
    W. P. Boone Dougherty, Knoxville, for appellant.
    Brooks McLemore, Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, B. Rex McGee and James R. Dedrick, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   OPINION

GALBREATH, Judge.

This is an appeal from the action of the criminal court of Knox County in revoking a suspended sentence. The appellant pled guilty to professional gambling in November of 1975 and was sentenced to serve one year in the Knox County Penal Farm. He was permitted to serve one month on a work-release program that required actual incarceration only on weekends and the balance of the sentence was suspended, the judgment providing, in pertinent part:

Upon completion of one month’s imprisonment in the Knox County Penal Farm, the defendant will be released to the Knox County Probation Officer for a period of 11 months, probation to expire November 9, 1976. Defendant’s probation is conditioned upon his not hereafter violating any of the laws of any City, State, or of the United States or being guilty of any misconduct inconsistent with good citizenship. The Clerk will furnish a transcript of this judgment to the Superintendent of the Knox County Penal Farm at her earliest convenience. The Clerk will furnish a copy of this judgment to the defendant, his counsel and the Knox County Probation Officer.

Following the filing of the revocation petition alleging that the defendant had again engaged in the offense leading to his conviction an exhaustive evidentiary hearing was conducted in which it was established by convincing evidence that he had indeed been active in professional gambling on a rather extensive scale while on probation.

It is the sole thrust of the appellant’s position here that, although a copy of the judgment was furnished his counsel, he, himself, was never made aware of its contents and since the trial judge had not personally notified him of the conditions of probation he could not have have knowingly or otherwise have violated the conditions so as to subject him to revocation. We reject this contention out of hand.

The judgment was notice upon being put to record, not only to the defendant but to all concerned, of its contents. It is a general rule that the record of a judgment properly entered and docketed is notice of that which it contains or recites, as well as such other facts as may be fairly inferred from its recitals, to the parties and their privies. See 49 C.J.S. Judgments § 133.

A defendant who enters into a compromise or settlement is bound to take notice of the judgment against him in all its parts and he is conclusively presumed to know its contents. Covington v. Bass, 88 Tenn. 496, 12 S.W. 1033 (1890). A client is implied to have notice of facts transmitted to his attorney in the matter and course of his employment for such client. See Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20 (1901).

We here hold that all probationers, regardless of the terms of the judgment granting judicial clemency, are deemed to be on notice that they are not to engage in unlawful activity or in otherwise conduct themselves inconsistent with good citizenship, if they accept probation in lieu of imprisonment. The appellant had to know that it was the understanding of all concerned that he would refrain from the unlawful conduct resulting in his conviction that formed the basis for the rehabilitative measures taken on his behalf. The trial judge seems now convinced, and justifiably so, that the defendant simply has failed to demonstrate that such promise could be fulfilled.

The judgment below is affirmed.

RUSSELL and DAUGHTREY, JJ., concur.