State v. Goad

692 S.W.2d 32, 1985 Tenn. Crim. App. LEXIS 3033
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 27, 1985
StatusPublished
Cited by25 cases

This text of 692 S.W.2d 32 (State v. Goad) 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. Goad, 692 S.W.2d 32, 1985 Tenn. Crim. App. LEXIS 3033 (Tenn. Ct. App. 1985).

Opinion

OPINION

BYERS, Judge.

The defendant was convicted of armed robbery and of assault with the intent to commit murder in the first degree. He was sentenced to serve two consecutive life sentences.

The state’s evidence, which is not challenged in this appeal, shows that on March 16, 1983, the defendant entered a convenience market, held a two-shot Derringer on the only employee present, and took money owned by the store. The defendant, after completing the robbery, ordered the employee to lie on the floor and then fired two shots into the head of the employee. The employee survived these wounds.

The defendant says the trial court should have suppressed the evidence of the Derringer pistol because it was seized during the course of an illegal arrest, says a photograph of the crime scene was overly inflammatory, says hearsay statements were admitted into evidence, says a sufficient chain of custody for two bullets removed from the victim was not shown, says a mistrial motion should have been granted because of improper conduct of the state in attempting to impeach the testimony of a defense witness, says the trial court erroneously ruled that prior robbery and armed robbery convictions could be used to impeach him if he testified, and says the conviction of armed robbery and assault with intent to commit murder should merge into one offense.

The judgments are affirmed.

In his first issue, the defendant says that the officer who stopped him did not have sufficient cause to do so, and therefore the gun taken from his person at that time should have been suppressed. He concedes that the trial court applied the correct legal standard — a brief investigatory stop must be justified by objective facts that would support a reasonable suspicion that the subject is or has engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Griffin v. State, 604 S.W.2d 40 (Tenn.1980).

The record of the suppression hearing shows that after the victim identified his assailant as William Goad, Tennessee officers obtained an arrest warrant. Their investigation gave them reason to believe [35]*35that Goad was in Panama City in the company of his girlfriend and her son and in contact with a relative of hers who resided in that city. They transmitted to Florida officers this information, as well as a description of the defendant and the car he was thought to be driving, and the warning that he was dangerous and armed with a Derringer pistol.

Florida officers located Goad’s companion and learned that he was waiting for her with several other persons at a particular unit of a local trailer court. Rather than approach the trailer, officers surrounded the area and waited for Goad to leave the trailer.

Officer Smith was stationed on a road that led from the park when he saw, walking from the trailer park, a man who fit the description supplied in the bulletin. He checked with his superior officer by radio and decided to stop the man and ask his identity. When the man walked past the patrol car, Smith ordered him to stop and place his hands on the car. He patted down the man’s clothing, felt a gun in his pocket, and removed the two-shot Derringer that was introduced at trial. The man identified himself as William Goad.

The defendant argues the physical description was so vague and the surveillance area so broad that Smith could not identify the man he stopped as the subject of the warrants. He relies on several decisions in which our courts, applying the Terry rule, have found an absence of objective facts to support an investigatory stop.

This is not such a case. Officer Smith was looking for a thirty-five year-old white male, approximately five feet ten inches tall, of medium stocky build, and having brown hair. He had recent, reliable information that the man was in a certain trailer park, which contained perhaps fifty units. He also knew that a warrant had issued for the man’s arrest and had reason to believe the man was armed and dangerous. He stopped a man with the described characteristics in the described location.

The officer articulated these specific facts, which we think were adequate to justify both the brief stop of the defendant to determine his identity and the pat-down for weapons. A stop and frisk on similar information was held reasonable in Griffin v. State, supra. The Constitution does not require absolute certainty in these situations, and the possibility that the officer might have stopped the wrong person on this information does not render his action unreasonable. The circumstances of the initial stop provided no basis for the exclusion of the Derringer from evidence.

The trial judge did not commit error in allowing a photograph which depicted the scene of the crime into evidence even though it showed blood of the victim.

The record shows that the trial judge carefully considered several photographs the state sought to introduce and that he allowed some into evidence and excluded others. The photograph complained of was a general depiction of the interior portion of the business where the crime took place. The trial judge clearly considered the probative value of this evidence versus the inflammatory effect it might have. He concluded the probative value outweighed the inflammatory effect which might be caused by the picture. This matter is within the discretion of the trial judge, and we see no abuse of this discretion in this case. State v. Banks, 564 S.W.2d 947 (Tenn.1978).

We agree with the defendant that the trial court erroneously allowed an officer to testify that the victim told him, “[H]e could identify the man who robbed him and if he ever saw the man or his picture that he could identify him.”

The trial judge overruled the defendant’s objection to this testimony and ruled that the evidence was admissible only to confirm what the victim told him and not for the truth of the matters contained in the statement.

The major issue in this ease was the identification of the defendant as the perpetrator of the crime. The victim had [36]*36testified before the jury as to the defendant’s identification and testified about the photograph of the defendant that he had selected from the pictorial array shown to him by the police. If the officer’s testimony was introduced to confirm the identification of the defendant by the victim, then it hardly answers the objection to say it is not hearsay because it is not offered for the truth of the matters contained therein. If it is offered for such a purpose, then it seems obvious that the intent was to establish the truth of the victim’s identification of the perpetrator of the crime and as such is hearsay. See State v. Lewis, 628 S.W.2d 750 (Tenn.Cr.App.1981); Blankenship v. State, 1 Tenn.Cr.App. 178, 482 S.W.2d 679 (1967). Contrary to the state’s argument, the victim in this case did not, in direct examination or cross-examination, testify that he made such statement. Nor was the identification testimony seriously challenged or impeached.

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Cite This Page — Counsel Stack

Bluebook (online)
692 S.W.2d 32, 1985 Tenn. Crim. App. LEXIS 3033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-goad-tenncrimapp-1985.