State v. Curtis

743 S.W.2d 195, 1987 Tenn. Crim. App. LEXIS 2620
CourtCourt of Criminal Appeals of Tennessee
DecidedJune 24, 1987
StatusPublished
Cited by2 cases

This text of 743 S.W.2d 195 (State v. Curtis) 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
State v. Curtis, 743 S.W.2d 195, 1987 Tenn. Crim. App. LEXIS 2620 (Tenn. Ct. App. 1987).

Opinion

OPINION

O’BRIEN, Judge.

John Haygood Curtis was indicted by the Lake County Grand Jury on two charges of armed robbery, and as an habitual criminal. There were two co-indictees whose cases are not involved on this appeal. Defendant came to trial on 31 July 1985 and was acquitted on the habitual criminal count of the indictment. He was convicted of the two armed robbery charges and has appealed.

Three issues are presented for review. Error is charged, (1) in denial of a motion to suppress identification procedures which defendant says were so suggestive as to give rise to a substantial likelihood of irreparable mis-identification; (2) on the sufficiency of the evidence to warrant the verdict of the jury; and (3) sentencing error by the trial court in finding defendant to be a Range II persistent and especially aggravated offender.

[197]*197We look first to the identification issue. A vigorous argument is made on behalf of defendant inviting a comparison of the facts in this case with those involved in Sloan v. State, 584 S.W.2d 461 (Tenn.Cr.App.1978), which does, as defendant’s brief notes, embrace the teaching and rationale of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). We have examined the facts in Sloan in conjunction with our review of the pretrial identification procedure in this case and do not find the similarity suggested in defendant’s brief.

At the conclusion of a hearing on the motion to suppress the identification evidence the trial judge made a finding of fact in which he reviewed the evidence at the hearing and held that the issue before the court was whether the pretrial photographic identification procedure utilized was impermissibly suggestive. He found there was no proof produced at the hearing which would require suppression of the identification evidence by the court. We concur in that finding. There was a series of twelve photographs displayed to each of the two robbery victims. One photo of the defendant is a type commonly referred to in police parlance as a “mug shot”. Another was a photograph of the defendant in a casual pose. There were also two pictures of a co-defendant among the grouping. There was no evidence to indicate that the witnesses knew anything about the progress of the investigation or that the police in any way suggested which persons in the pictures were under suspicion. See Simmons v. United States, supra. The victim witnesses were intensely cross-examined and were firm in their identification. One of these, Mrs. Connell, had no opportunity to view the defendant at the time of the robbery and only identified the other robber present. Mr. Connell identified both of them. In Stovall v. Denno, supra, the court held inter alia, that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Stovall was followed by Simmons, supra, in which the court made clear that convictions based on eyewitness identification at trial, following a pretrial identification by photograph, will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identi-fication. We find nothing suggestive about the identification procedure.

Defendant’s complaint relative to the sufficiency of the evidence must also be overruled. In addition to the eyewitness identification at trial by the victims, other witnesses placed Curtis and his co-defendant in Lake County prior to the robbery and at an Am-Vets club in the vicinity of the crime scene about an hour before the robbery occurred. When he was apprehended defendant admitted having been in Lake County on the day prior to the robbery but endeavored to establish an alibi for the time of the robbery. He denied ever having been in the veteran’s club. The credibility of the witnesses, the weight and value of their testimony, the inferences to be drawn from their statements, and all factual issues raised by the testimony and evidence introduced, direct and circumstantial, are matters entrusted to the jury as the triers of fact. See Braziel v. State, 529 S.W.2d 501, 505 (Tenn.Cr.App.1975). A jury. verdict approved by the trial judge accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the State. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978). Such a verdict removes the presumption of innocence of an accused which stands as a witness for him until he is convicted, and raises a presumption of his guilt. He has the burden upon appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. See Bailey v. State, 479 S.W.2d 829, 831 (Tenn.Cr.App.1972). The evidence in this case was sufficient for any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, [198]*198443 U.S. 307, 99 S.Ct. 2781, 2782, 61 L.Ed. 2d 560 (1979); T.R.A.P. 13(e).

The sentencing issue requires us to conduct a de novo review on the record without indulging any presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-402(b). The defendant asserts that the court erred in finding him to be an especially aggravated offender because neither death nor serious bodily injury was inflicted on either of the victims.

The trial judge found the defendant to be an especially aggravated offender under T.C.A. § 40-35-107(4), which provides that an especially aggravated offense includes “a felony committed while on escape status or while incarcerated on a felony if the felony committed results in death or bodily injury to another person.”

The defendant reasons that the final qualifying clause requiring proof of death or bodily injury applies both to a felony committed while on escape and to one committed while incarcerated. The State disagrees, arguing that the lack of a comma before the qualifying phrase makes it applicable only to the antecedent immediately preceding it, as held in Ingram v. Carruthers, 194 Tenn. 290, 294, 250 S.W.2d 537 (1952).

We conclude that the qualifying clause modifies both antecedents, because it refers directly to and reiterates the term “felony committed,” which term precedes and obviously refers to both types of felonies. The legislative intent seems apparent by examination of Ch. 406, See. 2,.

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

Related

State v. Russell
800 S.W.2d 169 (Tennessee Supreme Court, 1990)
State v. Peterson
777 S.W.2d 351 (Tennessee Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
743 S.W.2d 195, 1987 Tenn. Crim. App. LEXIS 2620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-curtis-tenncrimapp-1987.