Peabody v. State

556 S.W.2d 547, 1977 Tenn. Crim. App. LEXIS 291
CourtCourt of Criminal Appeals of Tennessee
DecidedApril 12, 1977
StatusPublished
Cited by8 cases

This text of 556 S.W.2d 547 (Peabody 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
Peabody v. State, 556 S.W.2d 547, 1977 Tenn. Crim. App. LEXIS 291 (Tenn. Ct. App. 1977).

Opinion

OPINION

RUSSELL, Presiding Judge.

The appellants, David Peabody and Bill Monroe Lofty, were, upon a joint trial, each convicted of the armed robbery and kidnapping of a service station attendant. Each was sentenced to ten years for the armed robbery and two years for the kidnapping, the sentences to run consecutively.

[549]*549The victim positively identified Peabody and Lofty as the men who first robbed him by presenting a pistol and demanding the paper money from the station cash register; and then forced him to leave in their automobile with them, and carried him across the State line into Georgia before releasing him. After their arrest, Lofty gave a detailed confession also implicating Peabody. The officers who took Lofty’s confession tape recorded it, and reduced it to typewriting, but Lofty did not sign it. Peabody orally confessed to his implication in the robbery, but his confession was neither recorded nor set out in detail.

The root question in this case grows out of the fact that Lofty confessed to the use of a pistol in the robbery, but the calibre of the gun was not a part of what was recorded and written down. This confession was introduced through a Detective Cook, who testified to what was confessed, and said that Lofty admitted to the use of a .38 calibre pistol. This was the first time that the size of the weapon had been established. The victim had testified that one of the robbers had presented a pistol to perpetrate the robbery; and, on cross-examination, the victim had admitted that so far as he could say it could have been a toy pistol or a B.B. pistol.

When the calibre of the gun was testified to it precipitated a motion for a mistrial, on the grounds that the copy of Lofty’s confession furnished to the defense did not contain that information; nor, it was said, were the names of witnesses to the confession of that information furnished. The problem was complicated by the impression of the trial judge that the victim’s testimony had not made out a case of armed robbery, since the witness could not negate the possibility that the pistol was a toy. The trial judge deemed that the evidence of the calibre of the pistol was essential to making out a case of armed robbery.

The trial judge subsequently held that the statement of Lofty as to the calibre was admissible as to him, and that the names of the witnesses present had been furnished to the defense, and held that Lofty had no ground to complain. However, since Lofty’s confession was not admissible as to Peabody, and the trial judge was convinced that evidence of the calibre was essential to make out the case of armed robbery, the trial judge indicated that this Court should reduce Peabody’s armed robbery conviction to simple robbery, erroneously believing that a trial court could not make such a reduction in a proper ease.

The trial judge misconstrued the legal effect of the victim’s testimony, and the effect and importance of the evidence of the calibre of the pistol used. When the victim testified that he was robbed by two men, one of whom was brandishing a pistol, this was all that was necessary to make out a case of armed robbery. The fact that the gun might have been, or could have been, a toy does not undermine the prima facie armed robbery case made out. In Hemphill v. State, 532 S.W.2d 286 (Tenn.Cr.App.1975), this language is quoted with approval:

On this issue, ... we hold that when a robbery is committed by the use of a pistol, and nothing appears indicating affirmatively that it was a toy or would fire only blanks, and it appeared to be a real pistol and was used as a real pistol to put the victim in fear of being shot so as to accomplish a robber’s purpose, such a pistol is officially shown to be a deadly weapon to support a conviction for armed robbery. To put the burden upon the State to positively prove that a pistol so used was not a blank or a toy pistol is unrealistic and unreasonable. The fact that the pistol was displayed and appeared to be real and was thus used to effect a forcible robbery is strong and sufficient prima facie evidence of its deadliness. If the robber is to rely upon the theory that he robbed with a toy pistol, he must carry the burden of proving his theory.

The defendants introduced no proof at all. There was and is nothing to support speculation that this might have been a toy pistol.

[550]*550Gun calibre is nothing more nor less than interior barrel size; or, to put it another way, a partial measure of the size of the projectile fired by the gun. Calibre is not an essential element of proof to make out a case of armed robbery. As a matter of fact, a pistol made to fire blanks, and even a toy pistol, has a barrel size or calibre; although neither would have a projectile size.

We hold that the evidence supports the convictions of both appellants of armed robbery. It is also apparent that the trial judge approved, as thirteenth juror, the conviction of Peabody; even though he erroneously concluded that the robbery by Peabody could not be classified as one committed with a deadly weapon, and expected us to reduce the conviction. We hold that proof that one of the robbers drew “a pistol” upon the victim is sufficient to support the armed robbery convictions of both defendants. There was no proof that the pistol was less than a deadly weapon, only the testimony of the victim that he was unable to negate the possibility that it might have been.

Appellant Lofty assigns as error the refusal of the trial court to suppress the confession, his contention being that he was under the influence of the drug valium when he gave it.

A statement is not rendered inadmissible by the mere fact that the relator was under the influence of drugs at that time, provided the accused was capable of making a narrative of past events or of stating his own participation in the crime. Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972).

The trial judge found that Lofty understandingly and voluntarily gave the statement. We will not disturb such a finding where, as here, the evidence does not preponderate against it. Janow v. State, 4 Tenn.Cr.App. 195, 470 S.W.2d 19 (1971). The transcript of Lofty’s statement clearly demonstrates his ability to at that time make a narrative of the past events in issue.

Error is assigned upon the Court’s giving a jury instruction defining the term “deadly weapon”. The appellant Lofty specifically objects to that part of the instruction which dealt with the right of a robbery victim to assume that a pistol is loaded. Looking to the entire charge, as we do (see Marshall v. State, 528 S.W.2d 823, Tenn.Cr.App.1975), we hold that the instruction clarified both the State’s theory and that of the appellant, and was not error. While it may have been a little broader than the factual theories called for, this resulted in no prejudice.

Appellant Peabody complains that the cases should have been severed. Obviously these cases should have been tried together, unless avoidable and illegal prejudice would thereby result. No such prejudice has been demonstrated on this appeal. See Gwin v. State,

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Court of Criminal Appeals of Tennessee, 2003
Parham v. State
885 S.W.2d 375 (Court of Criminal Appeals of Tennessee, 1994)
State v. Porterfield
746 S.W.2d 441 (Tennessee Supreme Court, 1988)
State v. Massey
757 S.W.2d 350 (Court of Criminal Appeals of Tennessee, 1988)
State v. Kennedy
595 S.W.2d 836 (Court of Criminal Appeals of Tennessee, 1979)
Saeger v. State
592 S.W.2d 909 (Court of Criminal Appeals of Tennessee, 1979)
Lowe v. State
584 S.W.2d 239 (Court of Criminal Appeals of Tennessee, 1979)

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Bluebook (online)
556 S.W.2d 547, 1977 Tenn. Crim. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peabody-v-state-tenncrimapp-1977.