author: TATUM, Judge.

text:
    Carl HOLT, George Overton, and Gazelle Holt, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 31, 1979.
    Permission to Appeal Denied by Supreme Court Nov. 5, 1979.

      Robert E. Burch, Dickson, for appellants Carl Holt and George Overton.
    Robert L. Littleton, Jerry V. Smith, Dickson, for appellant Gazelle Holt.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Douglas Bates, III, Asst. Dist. Atty., Cen-terville, for appellee.
   OPINION

TATUM, Judge.

Carl Holt, George Overton and Gazelle Holt appeal convictions of armed robbery for which each was sentenced to a term of ten years in the state penitentiary. In addition, Carl Holt appeals from a conviction of malicious shooting, for which he was sentenced to a term of not less than two years nor more than four years in the state penitentiary. In separate briefs, the appellants have made numerous assignments of error, all of which must be overruled.

Before discussing the assignments of error, we will first summarize the evidence. On the evening of 5 March 1978, shortly after 7:00 o’clock'P.M., the victim, Tommy Turman, heard knocks on his front door; when he answered the door, he was confronted with two black males, both armed with pistols. The taller of the two pushed him away from the door and hit him on the head with the pistol. They pushed him into his bathroom, where a safe was located, and commanded him to open the safe. When the victim refused to do so, the taller of the intruders shot him in the right leg. The victim then opened the safe; subsequently, the intruders pushed the victim into his bedroom and required him to lie face down on the bed. They tied his hands and feet with electrical cords from an electric fan and a desk lamp. Approximately $47,-000.00, two rings, savings bonds and a watch were taken from the safe.

The intruders then fled in an automobile, but the victim succeeded in freeing himself before the automobile was out of sight. He observed that it had vertical taillights, two to three inches in width and eight inches long; these lights were similar to those of an automobile later established to belong to Gazelle Holt. Immediately after observing the fleeing automobile, the victim telephoned Allen’s Store which was located diagonally across the street from the victim’s home.

The victim was able to view the intruders since lights were burning in at least the living room and bathroom of the house. Two days later, when the victim observed the appellants Carl Holt and George Over-ton in a police lineup, he positively identified both men as the intruders, indicating the taller one was Carl Holt, and the shorter one was George Overton. The victim also made an in-court identification of Carl Holt and George Overton.

Immediately after the robbery, while searching the victim’s home, a police officer found a knife which had electrical burns on the blade. The appellant, Carl Holt, admitted ownership of this knife. Police observed bloody footprints in the house and on the porch; these footprints were made by shoes with the same sole design as shoes worn by Holt to the police station two days after the robbery.

At two minutes before seven o’clock P.M., on the date of the robbery, a car dealer passed an automobile admittedly owned and driven by Gazelle Holt; Holt’s car was then approximately two miles from the victim’s residence and traveling in that direction. Gazelle Holt’s automobile was very distinctive: it was a 1973 black and white Monte Carlo with a Cadillac grill; it had a white stripe across the trunk, a “Playboy Bunny” in the center of the trunk, and a fireman’s license plate attached to the rear.

At very near 7:00 o’clock P.M., Mr. Ernest Allen observed Gazelle Holt’s automobile turn in front of Allen’s store onto the small street or alley where victim resided a short distance away from the store. The car turned into the victim’s driveway and stopped. Two men got out of the car and when they were near the victim’s front door, the automobile lights went out. About five minutes later, as the two men left victim’s house,, but before they reached the automobile, the automobile lights came back on. Another witness also observed this automobile parked in the victim’s driveway during this time. Later that night, when these witnesses saw Gazelle Holt’s automobile at the jail, they identified his car as the one they had seen in the victim’s driveway.

All three appellants gave exculpatory statements to police officers and testified in their own behalf. The appellants each had an alibi. Each statement contained details that were inconsistent with trial testimony, e. g., Gazelle Holt first denied that he had seen his co-defendants on the date of the robbery, but after learning that they admitted having seen him at about 3:00 o’clock P.M. on that date, he changed his statement to make it conform to their statements. There were other slight inconsistencies which we do not deem it necessary to mention here.

Gazelle Holt testified that when he passed by the car dealer immediately before and near the scene of the robbery, he was going to visit his girlfriend who lived at Wrigley. The girlfriend’s residence was 6.3 miles from the victim’s residence. One witness testified that Gazelle Holt arrived at his girlfriend’s house between five minutes before seven and fifteen minutes after seven. The girlfriend testified that he arrived at 7:15. Gazelle Holt denied lending his automobile to anyone on the date of the robbery and testified that he had possession of it at the time of the robbery. He denied that the automobile in the victim’s driveway was his.

George Overton and Carl Holt each admitted being with Gazelle Holt for a short time during the afternoon of the robbery, but stated that they left him shortly after 3:00 o’clock P.M. Overton and Carl Holt testified that they went to Nashville in Overton’s car, arriving there at about 6:30 P.M. or shortly thereafter. Overton testified that after stopping by his aunt’s home, he and others went to a show; Overton stated he returned to Dickson at approximately 12:15 A.M., on March 6. According to their evidence, Carl Holt did not accompany Overton to the show, but remained in Nashville all night, returning to his home in Dickson the next day. The appellants introduced other witnesses in support of their alibi defenses, and Gazelle Holt introduced two character witnesses.

Each of the appellants, through various assignments of error, attacks the weight and sufficiency of the evidence. We do not find that the evidence preponderates against any of the verdicts and we find substantial and material evidence to support all of them. The victim, at a pre:trial lineup and in court positively identified Carl Holt and George Overton as being the two individuals who entered his home and robbed him at gunpoint.

The victim, a Hickman County resident, had participated in a basketball tournament with the appellants, all residents of Dickson, but he did not remember seeing them before this incident, and they were not familiar to him.

He identified Carl Holt as the individual who shot him in the leg and hit him in the head with a pistol. In addition, Carl Holt’s knife bearing evidence that it had been used to cut electrical cords was found in the victim’s house after the robbery and there was substantial evidence that shoes owned by Carl Holt made the bloody footprints found after the robbery.

Immediately before the robbery, Gazelle Holt admittedly was in Dickson County driving his distinctive automobile in the direction of the victim’s house and very close to it. He had been in the company of Carl Holt and George Overton earlier in the day. The evidence is overwhelming that the two individuals who entered the victim’s house and committed the robbery arrived there in Gazelle Holt’s automobile. The automobile lights were turned off after Carl Holt and George Overton left the car, but were turned oh before the two robbers reentered, thus leaving the inescapable conclusion that a third person had remained in the automobile while Carl Holt and George Overton were in the victim’s home. Gazelle Holt admitted being in possession of his automobile during the time that the robbery occurred and, as stated, he admitted being in the vicinity. The alibi evidence of Gazelle Holt is, at most, marginal. His alibi witnesses testified that he reached his girlfriend’s house, only 6.3 miles from the victim’s house, as late as 7:15 P.M. while there was evidence that the crime occurred only minutes after 7:00 o’clock P.M.

We find substantial evidence upon which the jury could be convinced beyond a reasonable doubt of the appellants’ guilt as to all of the charges against them. The issue of alibi and all other issues presented by the evidence were for the jury. The guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. A reviewing court cannot reverse the verdict of a jury, approved by the trial judge, when the evidence does not preponderate against the jury verdict and when there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). We do not make either of these findings in favor of any appellant and must therefore overrule the various assignments relating to the weight and sufficiency of the evidence.

Carl Holt and George Overton say .that the court erred in admitting evidence of the victim’s identification of them at a pre-in-dictment lineup. They also say that the suggestiveness of the lineup tainted the in-court identification and rendered it inadmissible.

The rule is that constitutional due process is violated if a pre-trial identification is influenced by suggestiveness by police officers to such degree as to render the identification unreliable. If a witness’s in-court identification, is tainted by an unconstitutional pre-trial identification, then the in-court identification is not admissible in evidence. In determining whether the in-court identification is tainted by an ui.con-stitutional pre-trial identification so as to render the in-court identification inadmissible, the following factors must be considered:

“[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length óf time between the crime and the confrontation.” Bennett v. State, 530 S.W.2d 511, 514 (Tenn.1975).

These factors are considered only after a determination is made that the pre-trial identification is unconstitutionally suggestive; they are considered to ascertain whether the in-court identification is influenced and tainted by the suggestiveness of the pre-trial identification. This has been referred to as the “Totality of Circumstances” rule. See Forbes v. State, 559 S.W.2d 318 (Tenn.1977); Bennett v. State, supra; and the cases cited therein.

Before we consider the totality of the circumstances, we must first find as a matter of law that there was “a very substantial likelihood of irreparable misidentification” created by undue suggestiveness by the police officers who conducted the lineup. Forbes v. State, supra. The police officers set up an eight-man lineup and then had the victim view the lineup through the glass on a door. The victim happened to know one person in the lineup — a deputy sheriff. The deputy sheriff was standing in the center with Carl Holt and George Over-ton standing on each side of him; Gazelle Holt was standing at one end of the lineup. After the victim had studied the lineup for about five minutes, he identified Carl Holt and George Overton as the two intruders by pointing them out on a photograph of the lineup. Officers did not indicate to the victim in any manner who they suspected.

The appellants insist that placing the appellants on each side of the deputy sheriff in the center of the lineup would attract the victim’s attention. However, we do not find this fact of such consequence as to influence the victim’s identification of Carl Holt and George Overton at the pretrial lineup. There is no evidence that the victim was unduly influenced; the line-up was fair and lawful in all respects. At trial, the victim could not describe some of the physical characteristics of Carl Holt and George Overton; this circumstance did not render the identification evidence inadmissible, but went to its weight. See United States v. Dobson, 512 F.2d 615 (6th Cir. 1975); Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957); Young v. State, 566 S.W.2d 895 (Tenn.Cr.App.1978).

Since the lineup identification occurred during the investigative phase, prior to arrest of Carl Holt or George Overton, the Sixth Amendment right to counsel is not applicable. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). We hold that the identification procedure utilized did not deny the appellants any right under the due process clause of the Fourteenth Amendment to the Constitution of the United States or under the analogous “Law of the Land” provision of Article I, Section 8, Constitution of Tennessee.

The appellants complain that the trial judge erred in refusing to dismiss the indictment for want of a prosecutor. The charging instruments in these cases were signed by all of the members of the Grand Jury and in every respect, met the requirements for presentments. A presentment need not bear the name of a prosecutor. T.C.A. § 40-1705(1).

The appellants insist that the presentments should have been dismissed on a pre-trial motion because the prosecution was instigated by the District Attorney General who subpoenaed witnesses to a Special Session of the Grand Jury; the Grand Jury knew nothing of the case until it was in session. Therefore, the appellants insist that the prosecutions could not be instituted by presentment, but must be instituted by indictment. These same arguments were considered and rejected by our Supreme Court in Stanley v. State, 171 Tenn. 406, 104 S.W.2d 819 (1937). That case stands for the proposition that a Grand Jury can make an accusation by presentment instead of an indictment, though the presentment was not grounded upon knowledge of the Grand Jury or a member or in the exercise of the inquisitorial power of the Grand Jury, but was instituted by the District Attorney General who procured the witnesses. Also see Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532 (1959); State v. Davidson, 171 Tenn. 347, 103 S.W.2d 22 (1937). These assignments are overruled.

The appellants complain of the trial judge’s refusing to grant a special request of a charge taken from United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (D.C.Cir.1972). The request is lengthy, but the main gist of it is to inform the jury that the State has the burden of proving identity beyond a reasonable doubt; it also instructs the jury how to consider identification evidence. The trial judge gave a fair and thorough charge relating to identification. In one instance, he told the jury that it is “incumbent upon- the State of Tennessee, before you can convict the defendants of any one of the crimes charged or embraced in these indictments to establish to your satisfaction, beyond a reasonable doubt,— that the defendants now on trial are in fact the persons that committed said offenses.” The trial judge also charged Tennessee Pattern Instructions—Criminal 37.17 as follows: “The State must prove beyond a reasonable doubt each defendant’s identity as the person who committed the crime. If after considering all of the evidence in this case, you the jury are not satisfied beyond a reasonable doubt that the defendants are these persons, you must find them not guilty.”

Tennessee does not require the “Telfaire charge.” Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1974). The trial judge having given the jury, in substance, the same instructions as is contained in the special request, though in different language, it was not error to deny the special request. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962); Gunn v. State, 487 S.W.2d 666 (Tenn.Cr.App.1972).

Carl Holt and George Overton assign error that the trial court erred in refusing their special request for a jury charge to the effect that the failure of a defendant to flee is a factor to be considered in the defendant’s favor. The appellants rely upon Braswell v. State, 2 Tenn. Cases (Shannon) 595 (1877). This reliance is misplaced. In the Braswell case, the trial judge charged the jury that if the prisoners flee or resist arrest, this will be a circumstance against them, but if they do not flee or resist arrest, this would be a circumstance in their favor. In Braswell, there was evidence that the defendants resisted arrest and the reviewing court overruled an assignment of error aimed at the portion of the trial judge’s charge that flight or resisting arrest would be “a circumstance against them.” The portion of the charge given by the trial judge to the effect that the failure to flee or resist arrest could be considered in a prisoner’s favor was not applicable to that case and was not approved by the Supreme Court; in the Braswell case, this portion of the charge was given gratuitiously by the trial judge. Other than the Braswell case, the appellants have cited no authority in support of their contention and we have found none. The authorities hold unanimously to the contrary. See United States v. Telfaire, supra; United States v. Scott, 446 F.2d 509 (9th Cir. 1971); State v. Bernal, 13 Ariz. App. 177, 475 P.2d 6 (1970); Schwartz v. State, 379 N.E.2d 480 (Ind.App.1978); State v. Cunha, 193 N.W.2d 106 (Iowa 1971); State v. Anderson, 207 Or. 675, 298 P.2d 195 (1956). These assignments are overruled.

The appellants complain that the trial judge erred in holding court until 10:05 P.M. on the second day of the trial. At 6:45 P.M., the attorneys for the appellants informed the court that they were fatigued and requested an adjournment. The trial .judge, at that time, recessed until 8:00 o’clock P.M., and then continued to hear evidence until 10:05 P.M. This occurred on Friday and the trial judge was anxious to complete the case before Sunday, since the jury was sequestered.

The appellants rely upon Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App.1976) in which we held that the trial judge was in error for hearing evidence from 9:00 o’clock one morning until 1:00 o’clock the next morning. Counsel had told the court at Midnight that his mind was not functioning and he could not effectively represent his clients. We held that the holding of court until 1:00 o’clock A.M. was unreasonable under those circumstances.

However, in the case sub judice, the trial judge declared a recess from 6:45 until 8:00 o’clock P.M. and then continued to hold court for only an additional two hours and five minutes after recess. We do not think that this was oppressive or unreasonable; we do not find fault in the trial judge’s desire to prevent keeping the jury locked up during the following Sunday. This assignment is overruled.

The appellant, George Overton, assigned error that the trial court erred by refusing to declare a mistrial when the sheriff testified that this appellant refused to sign a statement. After Overton had been advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and had signed a waiver of these rights, Overton gave a full and complete exculpatory statement to the sheriff. The sheriff testified that after giving the statement, Overton refused to sign it; that testimony is the basis for this assignment of error. Obviously, it is erroneous for the State to show that the defendant claimed his privilege to remain silent when the privilege is exercised. However, the record in this case shows that Overton did not elect to remain silent, but made a full disclosure of his version of the facts to the sheriff. It was not improper for the sheriff to testify that Overton would not sign a written statement. See Ware v. State, 565 S.W.2d 906 (Tenn.Cr.App.1978). Moreover, we are convinced beyond a reasonable doubt that this evidence was not prejudicial to Overton. The assignment is overruled.

The appellant, Gazelle Holt, assigns error of the trial court “in failing to grant a mistrial as to Gazelle Holt after the proceedings were delayed three hours by the failure of the defendant Carl Holt to appear.” Gazelle Holt also avers that he should have been granted a severance because of this delay of the beginning of the trial.

The jury was selected on 15 June 1978 and the trial of the three appellants was to begin at 9:00 o’clock A.M. on 16 June 1978. On the morning of 16 June 1978, Carl Holt, who had gone to Nashville for one of his witnesses, had car trouble, which delayed him in getting to court. The trial judge delayed the proceedings until 10:35 A.M. when he orally pronounced a mistrial as to Carl Holt, but no minute entry was made in accordance with the orál pronouncement. Shortly thereafter, before the commencement of the trial of Gazelle Holt and George Overton, Carl Holt appeared in court. At the request of Carl Holt and George Overton, the oral order declaring a mistrial as to Carl Holt was vacated; the trial judge explained to the jury the reason for Carl Holt’s tardiness and proceeded with the trial of all three defendants.

We find that the procedure outlined above had no effect whatsoever on Gazelle Holt and we are convinced beyond doubt that it resulted in no prejudice to him. We therefore overrule these assignments..

Finally, Gazelle Holt insists that the trial judge committed error by failing to instruct the jury with regard to the good character evidence introduced on his behalf. This question is raised for the first time on this appeal as no exception or special request was made at trial and the alleged error was not mentioned in Gazelle Holt’s motion for a new trial. We therefore cannot consider this assignment. Taylor v. State, 544 S.W.2d 897 (Tenn.Cr.App.1976); Freeman v. State, 542 S.W.2d 629 (Tenn.Cr.App.1976); Brown v. State, 537 S.W.2d 719 (Tenn.Cr.App.1975).

All assignments of error are overruled and the judgments of the Criminal Court are affirmed.

DUNCAN and DAUGHTREY, JJ., concur.

      . Gazelle Holt’s attorney was present at the lineup. He testified that he found the lineup to be fair for his client.


source: Caselaw Access Project

author: O’BRIEN, Judge!

license: Public Domain

text:
    Robert Andrew KEY, Appellant, v. STATE of Tennessee, Appellee.
    Nos. 725, 750.
    Court of Criminal Appeals of Tennessee, Nashville.
    Aug. 16, 1979.
    Permission to Appeal Denied by Supreme Court Nov. 5, 1979.

      James H. Reneau, III, Celina, for appellant.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, Michael Coleman, Research Asst., John M. Roberts, Dist. Atty. Gen., Livingston, R. Laken Mitchell, Asst. Dist. Atty. Gen., Cookeville, for appellee.
   OPINION

O’BRIEN, Judge!

Defendant appeals from his conviction for rape and burglary in the first degree. Punishment was fixed at not less than nor more than twenty (20) years and one (1) day, and not less than nor more than five (5) years and one (1) day respectively. The very learned and comprehensive brief filed by defense counsel-includes several assignments of error.

First it is insisted the indictments should have been dismissed because they were a nullity due to improper appointment of an Attorney General, pro tempore.

It appears that under the aegis of Chapter 444 of the Public Acts of 1977 the State Legislature created a second division of the Criminal Court for the Fifth Judicial Circuit. This legislation was passed on May 10, 1977 and approved by the Governor on May 16,1977. By specific enactment it was not to become effective until July 1, 1977. The Act provided for the appointment of an attorney general to serve the new division within thirty days after the Act was signed by the Governor. The record shows that the indictment charging defendant with rape was returned by the grand jury on June 20,1977. On the same date the judge for the Criminal Court for the Fifth Judicial Circuit issued an order appointing A. F. Officer, Jr., assistant attorney general, as Attorney General pro tempore to act and serve as Attorney General for that term of court due to the absence of Baxter Key, Jr., the duly elected Attorney General for the Fifth Judicial Circuit. General Key was attending other court matters requiring his presence out of the courtroom. It is defendant’s contention that the indictment was void because it was proffered by an Attorney General pro tempore who was appointed illegally for insufficient reasons. Defendant contends that Baxter Key, Jr. was not the Attorney General on June 20, 1977 because of the appointment of John Marshall Roberts as District Attorney General for Division I of the Fifth Judicial Circuit by the Governor on May 16, 1977, and that Roberts had taken the oath of office and assumed the duties on that date.

The factual situation existing in this case does not warrant dismissal of the indictment. This is clearly elucidated in State v. Taylor, 199 Tenn. 507, p. 512-513, 287 S.W.2d 83, 86 (1955):

“It is settled law that the Constitution, Art. II, Sec. 8, provides that no general law shall take effect until 40 days after its passage, unless the same, or the caption shall state that the public welfare requires that it should take effect sooner. Also that the Legislature may, by the terms of the Act itself postpone its taking effect to a period beyond the 40 days. (Citation omitted).
That case also shows that a statute is duly enacted and vitalized immediately upon full compliance by the Legislature with the requirements of the Constitution for the enactment of laws, but that it does not become effective and binding upon the citizens to comply therewith except as provided by the terms of the Act itself, or in the absence thereof, by the provisions of the Constitution.”

Also see Wright v. Cunningham, 115 Tenn. 445, 91 S.W. 293, 295 (1905); and State ex rel. v. Trewhitt, 113 Tenn. 561, 572, 573, 82 S.W. 480 (1904). These cases emphasize that there is nothing in the Constitution to forbid the Legislature postponing the operation of an Act for an extended interval beyond the date of its passage.

Defendant insists there was no probable cause for his arrest and that a search of his person incident to the arrest was illegal. For these reasons a knife found in the course of the search should not have been admitted into evidence.

An out-of-jury hearing was held on a motion to suppress this evidence from admission to the jury. It was developed that the general description of her assailant given to the officers by the victim fit the description of defendant. The officers had knowledge that defendant had been accused of a similar offense just three weeks earlier. The defendant’s residence was within nine-tenths of a mile of the residence of the victim. They learned from defendant’s wife that he arrived at home on the night of the attack within a few minutes after it purportedly occurred. The officers were aware that a felony had been committed and had reasonable cause to believe it had been committed by the defendant. The standard for a warrantless arrest has been stated in Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930):

“The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit a felony. It is essential to the protection of society that a wide discretion be vested in officers chosen to enforce our laws against felonies. It is impossible to define ‘reasonable cause’ in terms to fit all cases arising. Each case must stand on its own facts. A narrow construction would open the way for the escape of desparate (sic) criminals and the defeat of justice. One too liberal would lead to the harassment of the innocent. But the officer may not be required to wait for assurance, for evidence which would convict; when circumstances fairly point to a felony it is his duty to act, and act promptly.”

It has also been stated that, “In dealing with probable cause, ... we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See also State v. Jefferson, 529 S.W.2d 674 (Tenn.1975). The trial judge held that the officers had probable cause to believe that defendant had committed a felony. This finding is to be given the weight of a jury verdict and is conclusive in this Court unless we find that the evidence preponderates against that judgment. Roach v. Moore, 550 S.W.2d 256, (Tenn.Cr.App.1977). The evidence does not preponderate against that finding. The search of defendant was incident to a lawful arrest and necessary for the officers’ protection. The knife found on his person was properly admitted into evidence. State v. Jefferson, supra. We overrule the assignment.

Defendant says it was error to admit into evidence a statement made by him shortly after his arrest while the officers were transporting him to the county jail. He says no proper foundation was established that he understood and knowingly waived his constitutional right against self-incrimination.

On this objection the trial judge held an out-of-jury hearing to establish the vol-untariness of the admission. The officers testified that they twice advised the defendant of his constitutional right against self-incrimination and that he replied in the affirmative when asked if he clearly understood his rights. He subsequently made an admission which was reduced to writing after he had been transported to the police station and for a third time was advised of his rights. He executed a waiver before his statement was reduced to writing. The uncontradicted evidence shows that the defendant knowingly, voluntarily and understandingly waived his rights against self-incrimination after being fully advised of those rights. We hold that the trial judge’s finding was correct in this matter and the defendant has failed to show that the evidence preponderated against that finding. See Braziel v. State, 529 S.W.2d 501, (Tenn.Cr.App.1975). The assignment is overruled.

Defendant says the admission of the in-court identification by the victim was error because it was based upon an out-of-court identification occurring during defendant’s interrogation at the Overton County Jail.

At defendant’s trial the victim testified she was employed as a Ranger by the U.S. Corp. of Engineers and lived in a house trailer in a rural section of Overton County between Livingston and Celina, near the town of Allons. On the 7th of May, 1977 she had worked a twelve hour shift and had returned home at about 7:00 p.m. After engaging in some small chores about the house she watched television for a short time and went to bed at approximately 9:30 P.M. Sometime after midnight she was awakened by someone on the bed. She felt a sharp prick at her throat and she was admonished not to speak nor move or she would be killed. Not fully understanding she asked the person to repeat what he said and he responded, “Did you hear me? I said, I’ll kill you.” The intruder continued to ask questions and she observed that he had a folded handkerchief tied over his nose and mouth. A conversation transpired relative to the intruder’s intent. He began to pull down the covers and placed his hands on her body. He advised her in very basic language of his intention to have sexual intercourse with her. This went on for some extended period of time with the defendant making several attempts at intercourse during which he threatened her with the knife by running the point of it around her neck and up and down her arm and leg. During all this time the conversation continued. At one time she persuaded him to take her to the kitchen in order to get a drink of water because she was sick, to her stomach. She was able to observe him more fully with the benefit of the nightlight in the kitchen. At times his mask would slip and his face was more visible. She could see his hair and his eyes and part of his nose. She was able to describe his physical characteristics and said that he was thickly built rather than slender. Defendant made seven or eight attempts at intercourse before he succeeded. During the course of this time, there was almost constant talk between them as well as ample opportunity for her to observe his features.

When defense counsel objected to her in-court identification the jury was retired from the jury room. The victim identified defendant and stated her identification was based solely on what she saw the night she was attacked. That she had enough light to observe every feature about him. She saw him in the kitchen and his face was directly in front of her for a long period of time. She recognized him immediately in the courtroom based solely on her observation on the night of the attack, although she had seen him at the jail after he was arrested.

Three days after the attack she was called to the jail. The officers had her stand outside a room with the door closed and listen to a number of people talking inside to see if she could recognize anyone’s voice. Officer E. C. Hale, a TBI agent, was interrogating a second party about events which occurred at her home on the night of the assault. She immediately recognized the voice of defendant because of his peculiar manner of speech. Although there were several people talking in the room she recognized his voice among all the others. The officers then opened the door and she observed several men standing about the room. She recognized one man who was sitting down as the person who had been in her trailer. The only other person whom she knew in the room was the TBI agent who was also sitting at one side. It is defendant’s complaint that under the totality of the circumstances the victim’s identification of him was unnecessarily suggestive and conducive to irreparable mistaken identity. He says also he was denied his Sixth Amendment right to counsel.

The trial judge found that the rape victim made a courtroom identification based on what she saw the night of her attack. He also held that any suggestiveness at the time of the jail confrontation was not of a nature that would require the exclusion of in-court identification. We concur with the trial court’s findings. Defendant obviously had characteristics of speech which enabled her to pick out his voice from among those of several unidentified men in the closed room. She was allowed to view the defendant in the presence of several other men dressed in plain clothes only one of whom was known to her. She testified that she recognized defendant by his hair, eyes, eyebrows and face. We are satisfied the evidence amply supported the trial court’s finding that the in-court identification was based upon the victim’s view of the rapist at the time of the crime. Moreover, while the witness testified she recognized defendant’s voice among those she heard in the next room at the police station, she did not testify before the jury about any other physical identification of him at that time. A rape victim who has had an opportunity to observe her assailant, and has been in contact with him for any considerable length of time is entitled to make an in court identification based on that observation. See Banks v. State, 556 S.W.2d 88, (Tenn.Cr.App.1977). Daugherty v. State, 478 S.W.2d 921, (Tenn.Cr.App.1972).

The complaint about denial of right to counsel was not raised in defendant’s motion for new trial and therefore is not to be considered here. Hawkins v. State, 543 S.W.2d 606, (Tenn.Cr.App.1976). Moreover, there is no indication that any adversary judicial criminal proceedings had been initiated against defendant at the time of the identification at the jailhouse. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Defendant had repeatedly been offered the opportunity to request counsel had he chosen to do so. He declined that opportunity on at least three occasions and signed a written waiver to that effect. We overrule the assignment.

The remaining assignments pertain to the weight and legal sufficiency of the evidence. The evidence included defendant’s admission as well as the positive identification of him by the rape victim based on her observations of him at the time of the crime. The proof was adequate in this case that an offense had been committed, and that defendant was guilty of the offenses for which he was indicted.

We note the judgments in this case include an adjudication of infamy, deprives defendant of the right to vote and to sit upon juries. A judgment of infamy does not carry any of the other foregoing proscriptions, and there is no statutory authority for such penalties. The judgment is modified to delete the deprivation of the right to vote or to jury service, and is otherwise affirmed.

RUSSELL and BYERS, JJ., concur.


author: CAMPBELL, Justice.

text:
    HARRIS COUNTY FLOOD CONTROL DISTRICT, Petitioner, v. SHELL PIPE LINE CORPORATION, Respondent.
    No. B-8428.
    Supreme Court of Texas.
    Nov. 7, 1979.
    Joe Resweber, County Atty., Edward J. Landry, Asst. County Atty., Houston, for petitioner.
    Vinson & Elkins, W. Allyn Hoaglund, Houston, for respondent.
   CAMPBELL, Justice.

This is an appeal by Harris County Flood Control District from a judgment of the trial court, affirmed by the Court of Civil Appeals, 578 S.W.2d 495, requiring the District to pay the cost of lowering Shell’s pipelines located in a public road. • Shell, pursuant to an agreed injunction, lowered the pipeline so that a flood control drainage ditch could be enlarged but reserved the right to seek payment for its costs. We affirm the judgment of the Court of Civil Appeals.

South Acres Drive, a public road in Harris County, was dedicated for “road and street” purposes on August 4, 1928. The following January, Shell obtained a pipeline easement within the roadway from the fee owner. This easement was subject only to the dedication of South Acres Drive for road and street purposes. Shell maintained pipelines within the roadway without disturbance until 1975. In that year it was required to lower the lines several feet so that the District could increase the width and depth of a flood control drainage ditch.

Shell concedes that it is not entitled to payment if the drainage ditch is for road and street purposes. The District contends (1) That construction of the borrow (bar) ditch for drainage for the immediate and general vicinity of Sims Bayou was a road and street purpose. (2) That the drainage of floodwaters from the immediate and general vicinity of South Acres Drive is a public purpose for which the road was dedicated. (3) The District’s right to cross the roadway is dominant to Shell’s easement to maintain the pipelines in the bar ditch.

South Acres Drive runs east and west. The drainage ditch runs north and south with drainage to the north. Shell’s pipelines are parallel to the road in the north side bar ditches.

Mr. Langford, Flood Control Engineer for the District, testified that this project, Sims Bayou, was a part of a county-wide flood control project authorized by bond election in 1969. The plan of the Sims Bayou project was to improve the laterals or channels that run into Sims Bayou with some work on the main channel. This particular channel (C-124) was to be made wider and deeper to increase its capacity to carry floodwaters from some 300 — 400 acres. Most of this area was south of South Acres Drive. Floodwaters from several subdivisions and streets will be served by the channel.

Mr. Couch, Chief Engineer for the District, testified that no work for this project was done on the bar ditches on South Acres Drive. Outfall pipes were placed from the flow line of the bar ditches into the channel to prevent erosion. The channel is over 6,000 feet in length and serves six or seven subdivisions and some undeveloped land.

The trial court, in a nonjury trial, found that the work performed on the drainage ditch was not a use of South Acres Drive’s right-of-way for “road and street” purposes. There is evidence to support the trial court’s finding of fact and it is controlling on this Court. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 (Tex.1964).

We hold that enlarging a drainage ditch to accommodate a drainage district is not a public purpose for which the road was dedicated. Easements for road and street purposes have been held to include the laying of sewer, gas and water pipes, City of San Antonio v. United Gas Pipeline Co., 388 S.W.2d 231 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.), telegraph and telephone lines, City of San Antonio v. Bexar Metropolitan Water District, 309 S.W.2d 491 (Tex.Civ.App.—San Antonio 1958, writ ref’d). The uses may be generalized as travel, transportation of persons and property and communication. Hill Farm v. Hill County, 436 S.W.2d 320 (Tex.1969). We do not agree with the District that the outfall ditch is a mode of transportation in that it carries storm water runoff.

Shell’s right to maintain its pipelines within the easement granted is dominant to the right of the District to cross the roadway. Shell’s easement was granted eight years before the District was created, and was subject only to the use of the roadway for road and street purposes.

The statute creating the District, Article 8280 — 120 § 9, provides:

The Harris County Flood Control District shall have a right of way .and easement over and across the roads and highways of the State and its subdivisions for the construction and maintenance of the flood control projects of the District, subject, however, to the concurrence of the State Highway Commission whenever such projects require the relocation or bridging of State highways.

This statute gives the District nothing more than a right-of-way and easement over or across South Acres Drive subject to rights of others using the land within the easement. Shell obtained its easement by deed from the fee owner. The easement is an interest in land for which Shell is entitled to compensation if it is taken or damaged. Magnolia Pipe Line Company v. City of Tyler, 348 S.W.2d 537 (Tex.Civ.App.—Texarkana 1961, writ ref’d).

The District relies on New Orleans Gas Company v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 571, 49 L.Ed. 831 (1905) and City of San Antonio v. San Antonio Street Railway Co., 15 Tex. Civ.App. 1, 39 S.W. 136 (1896, writ ref’d) for the proposition that a city can require the relocation of a pipeline at the expense of the owner. These cases are not applicable as they are franchise or contract cases whereby the city had granted to the private corporation the privilege of using the streets. Here, the owner of the fee granted the private corporation an easement by deed and the State an easement by dedication. In New Orleans Gas Co., supra, the franchise granted was in recognition that the use of the streets by the gas company was to be in such manner as to least inconvenience the city in its use. In the San Antonio Railway case, the rights of the railway were subject to the city’s right to locate sewers in the street as provided in the City Charter. In this case Shell is an easement owner and not a mere tenant, licensee, or franchisee.

The judgments of the courts below are affirmed.

      . Reference is to Vernon’s Texas Revised Civil Statutes Annotated.