State v. Johnson

685 S.W.2d 301, 1984 Tenn. Crim. App. LEXIS 3017
Court of Criminal Appeals of Tennessee·Decided November 16, 1984·Published·Cited by 10 cases

Opinion

OPINION

DUNCAN, Judge.

The defendant, Randy Johnson, was convicted of simple robbery and was sentenced to the Department of Corrections as a Range I standard offender for ten (10) years. The trial court ordered this sentence to be served consecutively to other sentences which had been imposed upon the defendant for prior convictions. A co-defendant, Michael Johnson, was also convicted but he is not a party to this appeal. Another codefendant, Mitchell S. Berry, had previously pled guilty, and he was called as a State’s witness in this case. Also, another codefendant, Elvert Hendon, was granted a severance and he testified as a State’s witness.

In this appeal, the defendant, Randy Johnson, says the trial court erred in denying certain of his motions, and also contests certain other rulings made by the trial court during the trial. We find no merit to his issues.

First, we will consider the defendant’s contention that the trial court erred in denying his motion for judgment of acquittal, made at the close of the State’s proof. We note that the defendant rested at the end of the State’s proof.

The State’s evidence showed that on the night of August 17, 1982, at approximately 9:50 p.m., Nell Creasman, an employee of a Stop and Go Shop, was robbed by Mitchell Berry of the sum of approximately one hundred ninety-five dollars ($195). Berry was armed with a shotgun. The police arrived on the scene a few minutes after the robbery, saw a car leaving the area at a high rate of speed, and then pursued and stopped the vehicle. Michael Johnson was the driver of the car, the defendant was riding on the passenger side, and Elvert Hendon was in the back seat.

The defendant and his companions were taken to the police station, where the defendant gave a statement to the effect that he, Berry and Hendon were at Hendon’s house earlier in the day at which time Berry said “he needed some money and that he was going to rob something.” Berry had a shotgun and all of them got into the car. The defendant said he told Berry “they’d better not rob that place” as he knew the woman (Ms. Creasman), but that Berry got out of the car and had the shotgun with him. The defendant also stated to the police that he and his companions saw Berry “running down the road and we saw the police car coming and told Scott [Berry] to keep running and the law stopped us.”

Other evidence showed that the victim, Ms. Creasman, recognized Berry as the robber when he returned to the store. She called the police and Berry was arrested.

Mary Creasman, the daughter of the victim, had dated the defendant. She saw the defendant at his house on the day of the robbery. Hendon and Berry were there also. She saw a shotgun at the defendant’s residence. The defendant picked it up and put it in the bedroom.

Sheriff Avery Hickey went to the location where the vehicle had been stopped. He asked the defendant what had happened, and the defendant said “Berry got out of the car with a shotgun.”

Elvert Hendon, a codefendant, whose case had been severed, testified for the [304]*304State. He said that when he, Michael Johnson, Berry and the defendant approached the store in their vehicle, the defendant told Berry that “the old lady was blind ... and would be easy to hit.” Berry had the shotgun as he left the car, and Berry told Michael Johnson to pick him up around the corner from the store after he committed the robbery. Hendon further testified that when their car reached the corner, they saw the police, and that as Berry left the store and approached the car, the defendant signaled to Berry with his hands “to get back.”

On cross-examination, Hendon admitted that he had previously told defense attorney Howard Upchurch that the defendant had nothing to do with the robbery. According to Hendon he said this because he was scared.

Hendon’s testimony clearly implicates the defendant in this robbery as an aider and abettor. His testimony is amply corroborated by the defendant’s own admissions to the police and by the other direct and circumstantial evidence. In fact, the evidence, apart from Hendon’s testimony, was sufficient to warrant the jury’s verdict finding the defendant guilty beyond a reasonable doubt.

Unquestionably, the State’s proof meets the evidentiary tests as required by T.R.A.P. 13(e) and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We find that the trial court correctly overruled the defendant’s motion for judgment of acquittal.

Next, the defendant contends that the trial court should have dismissed the indictment because he was not arraigned until five (5) days before trial.

Tenn.R.Crim.P. 10 states that before “a person is tried, he shall be called into open court and arraigned. The rule mentions no time period between arraignment before trial. We find that the defendant was properly arraigned. Furthermore, we point out that the defendant was indicted on December 13, 1982, and was not tried until October 26, 1983. The Honorable Howard Upchurch was appointed to represent him on January 19, 1983. Thus, his attorney had several months prior to trial to prepare his defense and to file any desired motions.

We find that the trial court properly denied the defendant’s motion to dismiss the indictment.

Another contention by the defendant is that the trial court should have sustained his counsel’s motion to be permitted to withdraw from the case.

Prior to trial, Elvert Hendon had told Attorney Upchurch that the defendant had nothing to do with the case. Consequently, at the outset of the trial, when Mr. Upchurch learned Hendon would be a witness for the State, he made a motion to withdraw so he could be available to testify if Hendon testified contrary to his prior statement.

In denying defense counsel’s request to withdraw, the trial court indicated it could not delay the proceedings on mere possibilities of what might occur in the trial. Obviously, the motion was premature at that time.

An attorney should withdraw from the trial of a case where he foresees before trial that he will be a witness. Rules of the Supreme Court, Rule 8, D.R. 5-101(B), D.R. 5-102, Canon 5, Code of Professional Responsibility. However, our Court has held that when the need for an attorney to testify is brought about by testimony of other witnesses during trial, then his competency to testify is discretionary with the trial court. Bowman v. State, 598 S.W.2d 809 (Tenn.Cr.App.1980).

The defendant appears to argue that the trial court would not permit his attorney to testify. Some discussion was had about this matter after Hendon testified, but the record is unclear as to this matter, and we do not find in the record any express request by defense counsel that he be permitted to testify and no express ruling by the trial court that he could not testify. At any rate, the record shows that Hendon [305]*305admitted before the jury the inconsistency between his trial testimony and his prior statement to Mr. Upchurch. In view of this admission by Hendon, there remained no basis for any impeachment testimony.

From all of the above, we find that the trial court did not err in declining Mr. Up-church’s motion to withdraw.

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State v. Johnson, 685 S.W.2d 301, 1984 Tenn. Crim. App. LEXIS 3017 (Tenn. Ct. App. 1984).

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