Head v. State

570 S.W.2d 362, 1978 Tenn. Crim. App. LEXIS 321
CourtCourt of Criminal Appeals of Tennessee
DecidedJune 30, 1978
StatusPublished
Cited by2 cases

This text of 570 S.W.2d 362 (Head v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Head v. State, 570 S.W.2d 362, 1978 Tenn. Crim. App. LEXIS 321 (Tenn. Ct. App. 1978).

Opinion

OPINION

TATUM, Judge.

The appellant, Echol Eugene Head, was convicted of bank robbery and sentenced to [363]*363not less than twenty years nor more than twenty-five years in the State Penitentiary. He assigns error attacking the weight of the evidence, the admission of evidence of his silence at the time of apprehension, the admission of evidence of a prior felony conviction, and the competence of his trial counsel. We affirm the judgment of conviction.

The State’s theory is that the appellant aided and abetted Dewey Scott Frazier in the robbery of the Plaza Branch of the First National Bank of Sullivan County by driving the “get-away” car. Shortly before the bank’s 4:00 o’clock closing time, Dewey Scott Frazier entered the bank alone and robbed the bank employees of $4,014 by use of a .22 caliber pistol. During the course of the robbery, Frazier’s gun discharged, wounding one of the bank employees.

While the robbery was in progress, the appellant waited outside the bank in a white Corvair automobile with the motor running. The license plate on the Corvair was bent downward so as to conceal the numbers on it. The Corvair was registered in the name of the appellant’s wife.

After the robbery, Frazier ran to the automobile, carrying a brown paper sack containing the money taken in the robbery. The appellant commenced driving off “real fast” before Frazier could get completely in the car.

The police were alerted immediately and given a description of the appellant’s car. After recognizing the appellant’s car, a police car pursued it, but it stopped shortly. Frazier left the car from the passenger side with the money and the pistol. After Frazier left, the automobile again moved forward, but a police car stopped it by pulling in front of it. When the Corvair was stopped by the police, the license plate had been straightened, but the crease was still apparent.

The appellant’s version of the event was that on the morning of the bank robbery, he visited a woman with whom he was enamored, named Nina Waye, a sister of Dewey Scott Frazier. He spent several hours working on Ms. Waye’s automobile, drinking with her and other visitors at her home, including Frazier. About 3:15 P.M., the appellant took Frazier to a liquor store to purchase more liquor. Then, Frazier asked the appellant to take him to the bank to borrow money. The appellant remained in his automobile with the motor running while Frazier went into the bank, because the Corvair would not start once the motor had stopped running. The appellant did not know that Frazier was armed with a pistol or that Frazier intended to rob the bank. The appellant testified that when Frazier left the bank, he got into the Cor-vair with the bag and the money. Frazier stuck the pistol into the appellant’s ribs and ordered the appellant, “Get me the hell out of here, that I’ve shot a woman in the bank and I’ve robbed it.”

The appellant testified that he did not attempt to escape from the police after Frazier left his automobile. He said that his foot slipped off the brake, hitting the accelerator, causing his car to move forward. He made no complaint that Frazier victimized him until he testified in his own behalf at his trial.

In his first two assignments, the appellant says that the evidence preponderates against the jury verdict and that the verdict of the jury and judgment of the court is contrary to law. We do not agree. On appeal, a defendant is presumed guilty of the offense for which he was convicted and we cannot reverse a conviction on the evidence unless it appears that the evidence preponderates against the defendant’s guilt and in favor of his innocence. State v. Sneed, Tenn., 537 S.W.2d 699 (1976); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909). Conflicts in testimony and credibility of witnesses are settled by a jury verdict. State v. Grace, Tenn., 493 S.W.2d 474 (1973); Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962). On appeal, this court will view the evidence, together with all reasonable and legitimate inferences therefrom, in the strongest light consistent with the State’s theory of guilt. State v. Thompson, Tenn., 549 S.W.2d 943 (1977); State v. Grace, supra. Applying these rules, we [364]*364must overrule the first two assignments of error.

The appellant’s third assignment of error is: “The learned trial court erred in allowing the State, in its cross-examination of the appellant, to question and interrogate him concerning his invoking the Fifth Amendment of the United States Constitution at the time of his arrest and at the trial of Dewey Scott Frazier.”1 No reference was made by the State to the appellant’s silence at the time of arrest until the appellant’s cross-examination. We quote portions of the record to illustrate the character of questions asked the appellant on cross-examination, of which he now complains:

Q. Mr. Head, your testimony at this point_it’s my understanding that you’re saying now that you were, in fact, a victim of a crime yourself at the hands of Dewey Scott Frazier. Is that right?
A. Repeat that again. I don’t understand that.
Q. As I understand your testimony at this time and this is the first time I’ve ever talked to you, isn’t it?
A. Yeah.
Q. As I understand your testimony at this point you are taking the position that you were, in fact, the victim of the crime of being held as a hostage by Dewey Scott Frazier in his attempts to escape the law.
A. Yes, sir.
Q. And that’s what you’re telling this jury?
A. Yes, sir.
* * * * * *
Q. Today is the first time you’ve ever made a complaint about Dewey Scott Frazier, isn’t it?
A. Yes, sir.
* ⅜ * * * *
Q. You didn’t jump out and run to the police officer and say thank goodness you’re here?
A. No, sir. When that officer pulled a gun on me, it scared me that much more. I was scared. I didn’t know what to do or which way to turn.

In closing argument, the District Attorney General stated to the jury:

General Kirkpatrick: . . . Echol Head didn’t act like a victim of a crime when he got stopped. Common sense tells you that Echol Head didn’t act like the victim of a crime when the police stopped him .
General Kirkpatrick: Well, I didn’t know Echol Eugene Head. He testified on the witness stand that I was talking to him for the first time. The first time I ever talked to him was here in the Courtroom with him on the witness stand.

We agree that a defendant has a constitutional right to remain silent in the face of accusations against him and that the prosecution may not ordinarily use at trial the fact that a defendant stood mute or claimed his privilege in the face of accusations. Braden v. State,

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Related

State v. Martin
627 S.W.2d 139 (Court of Criminal Appeals of Tennessee, 1981)
Head v. Thompson
477 F. Supp. 2 (E.D. Tennessee, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
570 S.W.2d 362, 1978 Tenn. Crim. App. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/head-v-state-tenncrimapp-1978.