Proctor v. State

565 S.W.2d 909, 1978 Tenn. Crim. App. LEXIS 296
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 26, 1978
StatusPublished
Cited by9 cases

This text of 565 S.W.2d 909 (Proctor 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
Proctor v. State, 565 S.W.2d 909, 1978 Tenn. Crim. App. LEXIS 296 (Tenn. Ct. App. 1978).

Opinion

OPINION

FRANK F. DROWOTA, III, Special Judge.

This is an appeal by defendant James Brake Proctor from a judgment of the Hickman County Criminal Court, in which he was convicted of armed robbery and of being an habitual criminal. Defendant was sentenced to 65 years in prison for the armed robbery, while a life term was imposed on the habitual criminal conviction as T.C.A. § 40-2806 requires. Defendant was tried and convicted along with a co-defendant, Jerry Wayne Stewart, whose appeal we address in a separate opinion.

The armed robbery of which defendant Proctor was convicted occurred on the evening of October 26,1974, at a store run by a 74-year old lady, Mrs. Faira Jane Foriest, and her son, James Martin Foriest, Jr. Two men, wearing ski masks and armed with pistols, robbed the store of an amount of money estimated at $15,000.00 by James Foriest and at $80,000.00 by his mother. Most of the money was stored in a green tackle box, which was also taken. The robbers forced their victims from the store to an adjacent house, in which the Foriests lived. James Foriest remained at the house during the entire robbery and never got a very good look at the two criminals. His mother, however, was taken by one of the men back down to the store, where she was able to see the other man without his mask. When the robbers had taken what they wanted, they tied up the Foriests and left them in the house. Within a few minutes, James Foriest managed to free himself and his mother, and they called the Sheriff to report the robbery.

James Foriest was able to give no details concerning the appearance of the two men, other than that they wore masks and “kinda heavy like coats” and that one was about five feet ten inches tall. Mrs. Foriest, however, did give the Sheriff a somewhat more detailed description of the man she had seen with his mask off. The description was of a white male, 30 years old or more, five feet ten inches tall, about 150 lbs., of slender build with a slim face, a pale complexion, and black hair parted on the left and combed to the right. Mrs. Foriest also said that the man wore a dark three-quarter length coat that was big and loose, and carried a blue steel pistol. She also furnished police with a less detailed description of the second robber.

In the several months following the robbery, Mrs. Foriest was shown approximately 600 “mug shot” photographs, but was unable to identify anyone whose picture she saw as the robber. Then, evidently as a result of information supplied by an agent of the Tennessee Bureau of Criminal Identification, defendant Proctor became a suspect in the case. The Sheriff, Frank Atkinson, arranged for Mrs. Foriest to go to the court house in Columbia, where defendant was being tried on another charge, to see if she could identify anyone. On May 23, 1975, after twenty minutes of scrutinizing about forty people present in the courtroom, Mrs. Foriest identified defendant Proctor as the robber she had seen without his mask.

Subsequent to his being identified by Mrs. Foriest, defendant was indicted for the armed robbery and for being an habitual criminal. He was tried with his co-defendant Jerry Stewart on August 28, 29 and 30, 1975.

At trial, the State first presented testimony of the Foriests and Sheriff Atkinson concerning the robbery and the description of the criminals given by Mrs. Foriest at the time. Mrs. Foriest also made an in-court identification of defendant Proctor as the robber whose face she had seen on the night of the crime.

Next came the important testimony of Terry Lee Stewart, the brother of defendant Proctor’s co-defendant Jerry Stewart. [911]*911Terry Stewart testified that his brother Jerry and defendant Proctor had carried out the robbery of the Foriests on October 26, 1974. He said that he had heard the other two discuss the possibility of robbing the store prior to that date, and that his brother had told him of definite plans to do so on the day before the robbery. On October 26, according to the witness, he and his brother and defendant Proctor had set out from Nashville. When they arrived at the store, they drove past, and found a place to park in front of a vacant house. The witness then drove the other two men to a point about a half a mile from the store and let them out. Defendant Proctor was carrying a blue steel .38 pistol, and was dressed in brown pants, a brown shirt, and a brown waist jacket something like a windbreaker. Following the instructions he had been given, Terry Stewart drove back to the vacant house and waited for his two companions. When they returned, defendant Proctor was carrying a green tackle box. Terry Stewart then drove the three back to Nashville. During the trip, the tackle box was emptied and thrown out alongside the road. According to Terry Stewart, the amount of money taken was $30,000.00, of which he was given $2,000.00 while his brother and defendant Proctor took $14,000.00 each.

Terry Stewart also testified on cross-examination that he had been in trouble with the law since the robbery. He said that, while he had made no deal with police, he believed he would be treated more leniently as a result of his cooperation in testifying.

For the defense, the father of Terry Stewart testified that Terry had told him that he might “have to tell — anything that I have to tell to get out of this.” Defendant Proctor testified that he had given up his life of crime prior to the date of the robbery, and denied any involvement in it. He said that he and his new wife had bought a store in Huntsville, Alabama, and that he had been at the store at the time of the robbery. Several witnesses, including Proctor’s wife and sister-in-law, testified in support of this alibi.

After hearing the evidence, the jury found defendant Proctor guilty of armed robbery and fixed his sentence at 65 years in prison. A brief trial was then held on the habitual criminal charge, and several of defendant’s prior convictions were documented. The jury then found defendant guilty of being an habitual criminal and sentenced him to life in prison. Defendant’s appeal has now reached this Court.

In his first assignment of error, defendant Proctor contends that he was “subjected to an identification procedure so suggestive and conducive to mistaken identity that [he] was denied due process of law.” He argues that testimony concerning Mrs. Fori-est’s identification of him in the Columbia courtroom was improperly admitted, and that her identification of him at the trial of the instant case should also have been excluded because it was tainted by the earlier one.

We note initially that this case does not involve the Sixth Amendment or rules governing identification procedures as set out in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The right to counsel and the rules of those cases apply only to identification procedures conducted after indictment. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The disputed identification in the instant case occurred prior to defendant’s indictment.

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Cite This Page — Counsel Stack

Bluebook (online)
565 S.W.2d 909, 1978 Tenn. Crim. App. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proctor-v-state-tenncrimapp-1978.