State v. Donald

614 S.W.2d 66, 1980 Tenn. Crim. App. LEXIS 351
CourtCourt of Criminal Appeals of Tennessee
DecidedOctober 15, 1980
StatusPublished
Cited by1 cases

This text of 614 S.W.2d 66 (State v. Donald) 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. Donald, 614 S.W.2d 66, 1980 Tenn. Crim. App. LEXIS 351 (Tenn. Ct. App. 1980).

Opinion

OPINION

JOHN D. TEMPLETON, Special Judge.

Gary James Donald was convicted of murder in the first degree and sentenced to life imprisonment. We resolve against him all of the issues raised on appeal and affirm the judgment.

The first issue is whether the evidence was sufficient to support guilt. We outline the facts as disclosed by the state’s proof.

Late in the afternoon of September 28, 1978, a young female drifter was in the Knoxville area and had been picked up by appellant. They traveled in his car to a remote wooded place in Knox County where he stabbed her to death. When found she was nude and had been stabbed 111 times. However, she had not been sexually molested or robbed. Two persons happened to be in the woods at the time and although they did not see the murder they heard appellant’s car arrive and-soon thereafter heard sounds of conflict, including the cries of the [68]*68girl pleading for her life. They fled and with others soon returned to investigate. On the way back to the scene they met appellant leaving the area in his car. The road on which they met appellant was the only entrance to and exit from the scene and he was the only person in there at the time. Appellant went home and burned his clothes. A search of the car revealed the girl’s fingerprint and some personal items she had discarded. After arrest he admitted he picked up the girl, took her to the scene, and stabbed her. The state’s proof was overwhelming and there really was no doubt appellant committed the crime. We find the evidence was sufficient to find appellant guilty beyond a reasonable doubt of murder in the first degree.

Appellant insists his motion for a continuance should have been granted. The judge allowed 20 state witnesses to be added to the list 12 days before trial and appellant claims he did not have adequate time to interview them. It is not shown any of these witnesses were used or if they were then in what way their testimony prejudiced appellant. We see the judge carefully allowed counsel to interview witnesses not already interviewed before proceeding with the trial. Also, counsel had been appointed about three months before the trial and was entirely familiar with the proof. In fact we have not seen better representation of a defendant than was made in this case. In the face of conclusive evidence of guilt, counsel was able to present every conceivable defense available. We are satisfied the judge did not abuse his discretion in overruling the motion for a continuance.

Appellant claims he was arrested without probable cause, the evidence obtained by the search and seizure of his vehicle was not admissible, and his statements to the police that he committed the crime were not admissible. The judge conducted an elaborate hearing on these matters in which all of the facts were developed and denied the motions to suppress the evidence. The judge saw and heard the witnesses and we accept his findings on questions of fact unless we can say the evidence preponderates against his judgment. Sneed v. State, 546 S.W.2d 254 (Tenn.Cr.App.1977).

The officers began investigating the homicide in the evening of September 28. The witnesses who saw appellant leaving the scene were unacquainted with him and could describe him only generally as to sex, age and appearance. They saw him briefly seated in his car as he met them on the road and while his car and theirs were traveling in opposite directions at speeds of 15 to 30 miles an hour. However, they were proceeding to the scene with almost certain knowledge the girl was in distress and appellant was responsible for it. It is reasonable to assume, as their testimony showed, they took a good look at him.

Appellant’s car was an old model vehicle with distinctive features which the witnesses were able to describe quite well. It is entirely possible the vehicle had some primer paint on it in various places and if so the witnesses overlooked that but otherwise their observations were remarkable. One witness remembered two digits of the license number. Two of the witnesses had seen the car before and one knew the location of a house where he had seen it parked which turned out to be appellant’s residence.

The officers conducted the investigation with dispatch but much work was required. The scene had to be photographed and searched for clues and witnesses who lived near or were in the area had to be interviewed. The victim had to be identified which was difficult. The next day an officer, pursuing the lead that the car had been seen parked at a certain residence, found appellant lived there. The car was at appellant’s father’s house and with appellant’s permission the officer photographed the car. These photographs were shown to some of the witnesses who identified them as pictures of the car they saw leaving the scene. The appellant’s own physical appearance agreed with the description of him given by the witnesses. The officers concluded on the basis of this evidence they [69]*69would arrest appellant. The evidence was put together and the decision arrived at late at night. The officers went to appellant’s home and arrested him about 2:00 a. m., September 30.

We think under these facts the officers, acting as reasonably prudent persons, had reasonable cause for believing appellant committed the crime of murder. T.C.A. § 40-803(3); State v. Jefferson, 529 S.W.2d 674 (Tenn.1975).

Appellant insists his automobile was unlawfully seized and searched and the state relies on consent. An officer, of course, may search an automobile if the owner voluntarily gives his consent. Houston v. State, 593 S.W.3d 267 (Tenn.1980).

The officers seized appellant’s automobile when they arrested him. Afterwards they searched it and turned up the girl’s fingerprint, a fragment of leather from her pocketbook and part of a cigarette tax stamp from her package of cigarettes.

There was evidence that when appellant was arrested, officer Wilson said, “Gary, I need to take your car in for further evidence and examination. Can I have your consent to take it in?’’. To this he said, yes. According to the officer appellant said, “I’ll give you my consent, you’ve already took pictures, you are not going to find anything”. There was other evidence from which it could be inferred the permission was not so freely given. Also, at the station later he refused to sign a permit to seize and search the car. However, he orally gave permission. And his father had told him to cooperate but not sign anything.

We think that taking into account all of the facts and circumstances of the case, appellant voluntarily consented to and cooperated in the seizure and search of his vehicle as found by the judge.

Appellant insists his statement made at the police station after the arrest in which he admitted he picked up the girl, took her to the scene and stabbed her, should have been suppressed. He denies making the statement at all but in any event insists it was inadmissible for not being voluntary and lack of inadequate protection of his rights. Appellant was at the station late at night charged with murder. He expressly declined to sign a waiver. And he insists he did not waive his rights.

As already noticed, he had been advised by his father to cooperate but not sign anything.

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Related

State v. Fugate
776 S.W.2d 541 (Court of Criminal Appeals of Tennessee, 1988)

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Bluebook (online)
614 S.W.2d 66, 1980 Tenn. Crim. App. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donald-tenncrimapp-1980.