Hicks v. State

571 S.W.2d 849, 1978 Tenn. Crim. App. LEXIS 324
CourtCourt of Criminal Appeals of Tennessee
DecidedMay 23, 1978
StatusPublished
Cited by12 cases

This text of 571 S.W.2d 849 (Hicks 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
Hicks v. State, 571 S.W.2d 849, 1978 Tenn. Crim. App. LEXIS 324 (Tenn. Ct. App. 1978).

Opinion

OPINION

BYERS, Judge.

The Appellant was convicted of armed robbery and sentenced to serve twenty (20) years in the penitentiary.

The Appellant says the evidence does not support the verdict because there was no corroboration of the testimony of two accomplices who testified against him, that evidence of prior crimes were improperly introduced into evidence, that the introduction of rubber gloves found near the scene was error because the police had not revealed they had found these gloves, that he should have been granted a new trial on the basis of newly discovered evidence, and further claims the charge given on the defense of alibi was erroneous.

The undisputed evidence shows that on September 25,-1977, at approximately 10:30 p. m., two young men, later identified as Danny Pratt and Gary Comer, entered Super Stop Market on Long Hollow Road in Sumner County, and by use of pistols took from three to four hundred dollars of the money belonging to the owner of the store. They also took a wallet containing five dollars ($5.00) from a customer. In addition to the money, the robbers took a cigar box containing receipts and other papers connected with the business.

At the trial of this case, Danny Pratt and Susan Comer, whose testimony showed she participated in this crime, were called as State’s witnesses. In substance, they testified that the Appellant procured them and Gary Comer to commit this crime. They related that he bought a pair of rubber gloves to be used by the robber in the commission of this crime, that he furnished two guns, one for each of the young men to use, that he drove them to the store which was robbed, that he drove them away from the scene after the crime and took part of the money. A pair of gloves were found near the scene of the crime by investigating officers. These were found along with the cigar box which had been taken from the store and had been discarded. A State’s witness testified that the Appellant, in the company of a young woman, had been in a store where she worked just prior to this crime, that the young woman selected a pair of gloves similar to the ones found near the scene of the crime and that the Appellant had paid the purchase price thereof. The State also offered the testimony of a young man that on the day prior to the crime the Appellant asked him to assist in the commission of an armed robbery which he was planning.

The Appellant testified that he had nothing to do with the crime, that he was with a woman friend at the time of the crime, that he saw Gary Comer standing in the bushes near the scene of the robbery as he and this woman drove along the roadway. The woman testified substantially the same as the Appellant.

The assignments complaining of the insufficiency of the evidence hinge upon the complaints concerning the introduction of certain evidence in this case and we will therefore treat those assignments prior to the weight of the evidence complaint.

[851]*851The Appellant bases his claim of the inadmissibility of the gloves on an occurrence during the preliminary hearing. In the course of that proceeding, the Appellant’s attorney asked the investigating officer if he had found any physical evidence at the scene of the crime. The officer revealed what items he had found, with the exception of the gloves.

The Appellant insists that this amounts to a suppression of evidence which interfered with the formulation of a defense within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The State, on the other hand, asserts that the officer did not intentionally withhold this information and therefore did not create a violation of the Brady rule. In addition, the State takes the position that the failure of the Appellant to make a motion for discovery under T.C.A. § 40-2044 and § 40-2441 precludes the granting of relief on the basis claimed by the Appellant.

We agree with the State that a pretrial discovery motion should have been filed and in the context of the evidence in this case we think it was a prerequisite for a claim of error on appeal. However, we are not prone to agree with the explanation given by the officer for not revealing the discovery of the gloves during his testimony at the preliminary hearing.

The officer testified, at the trial of this case, that he did not know the gloves were connected to the Appellant. However, the gloves were found along with some of the property which had been taken from the store. The Appellant was charged with committing that crime. It must necessarily follow that the officer would recognize the likelihood that any physical evidence found at the scene of the crime might be relevant on the issue of the accused’s guilt. We think that the usual course would be to reveal this type of information, when asked about it in a judicial hearing, rather than not disclosing the same on the supposition that it might not be connected to the accused. The failure to do so might well bar the use of essential evidence to show the commission of a crime.

The Appellant’s contention that proof of a prior crime was admitted against him is based on the testimony given by a witness named Tommy Vetetoe.

Vetetoe testified that on the day prior to the crime in this case, the Appellant asked him to aid in the carrying out of an armed robbery.

The Appellant insists that this evidence should be excluded because it tends to show the accused guilty of another and unrelated offense than the one on which he was being tried and that this evidence did not show identity, plan, intent or any other relevant factors to qualify it for admission. McLean v. State, 527 S.W.2d 76 (Tenn.1975). The State, on the other hand, says it does qualify for admission because it shows motive, intent, absence of mistake, scheme or plan. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

We do not glean from this record that the testimony complained of showed the commission of another offense making it admissible or inadmissible for either reason claimed. Rather, we are of the opinion that this evidence was admissible as evidence of the Appellant’s preparation for and participation in the offense hereunder inquiry, and also qualifies for admission as part of the res gestae. Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159 (1966).

yfe are of the opinion that the testimony concerning the purchase of the gloves similar to the ones found at the scene of the crime and the testimony that the Appellant asked Vetetoe to aid in an armed robbery corroborated the accomplices’ testimony sufficiently to support the verdict of the jury.

Two of the participants, in this offense related the Appellant’s connection therewith. Two witnesses, who were not accomplices, gave testimony which gave credence to their testimony. This testimony was separate and apart from the testimony of the accomplices’ and tended to show the Appellant’s complicity in the commission of the [852]*852crime. This is sufficient corroboration. Boulton v. State, 214 Tenn. 94, 377 S.W.2d 986 (1964); Prince v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Howard Hawk Willis v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2016
Bo W. Prendergast v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2015
State of Tennessee v. Andra Guy
Court of Criminal Appeals of Tennessee, 2009
Erskine Leroy Johnson v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2009
Jamie Lou Haneline v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2007
Marcie A. Murray v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2004
State v. James Murray, Marcie Murray and Sharon Hurt
Court of Criminal Appeals of Tennessee, 1998
State v. Cory Gentry
Court of Criminal Appeals of Tennessee, 1998
State v. Pervis Payne
Court of Criminal Appeals of Tennessee, 1998
State v. Hart
911 S.W.2d 371 (Court of Criminal Appeals of Tennessee, 1995)
Teague v. State
772 S.W.2d 915 (Court of Criminal Appeals of Tennessee, 1988)
State v. Baker
623 S.W.2d 132 (Court of Criminal Appeals of Tennessee, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
571 S.W.2d 849, 1978 Tenn. Crim. App. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-state-tenncrimapp-1978.