State v. Keele

644 S.W.2d 435, 1982 Tenn. Crim. App. LEXIS 477
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 9, 1982
StatusPublished
Cited by11 cases

This text of 644 S.W.2d 435 (State v. Keele) 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. Keele, 644 S.W.2d 435, 1982 Tenn. Crim. App. LEXIS 477 (Tenn. Ct. App. 1982).

Opinions

OPINION

TATUM, Judge.

The defendant was convicted of murder in the first degree and of armed robbery. He was sentenced to serve life imprisonment on each conviction, and each sentence was ordered to be served consecutively.

The defendant says the trial court should have declared a mistrial because he says the state continued to introduce inadmissible evidence and because the jury saw him in shackles; says he was denied statements of a witness after making a motion for the statements in accordance with Rule 16(a) of Tennessee Rules of Criminal Procedure; says the court’s charge on the defendant not testifying was an improper comment thereon; says the trial court erroneously denied his request for an instruction on evaluating the testimony of a drug addict; and, says the indictment should have been dismissed because it was duplicitous. After reviewing the record, we conclude that the convictions for both offenses must be affirmed.

The defendant does not contest the sufficiency of the evidence. It is sufficient to say the state’s proof clearly shows the defendant entered the home of the deceased on the evening of December 4,1979, robbed him and killed him. The defendant did not testify.

The defendant’s claim for a mistrial based upon incompetent evidence being introduced by the state is not well taken. The defendant had filed a motion in limine to prohibit the state from showing the defendant was addicted to drugs. The state advised the trial judge they would not show this unless the defendant testified.

In the course of the testimony of a state’s witness, the state showed the witness and defendant had been together for several days in Florida during October of 1979. In the course of this testimony, the witness testified he was using drugs. There was an implication the defendant used drugs also.

The defendant did not object to the testimony when it was offered but waited until sometime later to do so. In our view he waived any complaint thereof. Furthermore, in view of the unquestioned guilt of the defendant, this would be at most harmless error.

The defendant’s motion for a mistrial based upon the jury seeing him in shackles resulted from an inadvertent and unexpected occurrence. On the last morning of this trial, the defendant along with other prisoners was being returned to the courthouse for the day’s proceedings. These prisoners were taken to the seventh floor of the courthouse where they were to be placed in a holding room. The door to the holding room was locked, and the prisoners were forced to stand in the hallway. While the prisoners were standing in the hallway, the jury arrived on the seventh floor to go to the jury room. Several of the jurors saw the defendant in shackles, and one juror became upset and wept and decided she “could not do it.” The jury went into the jury room, and the defendant made a motion for a mistrial based upon this occurrence.

The trial judge conducted a hearing on this matter, overruled the defendant’s motion and instructed the jury to disregard this occurrence. The jury was returned to the jury room. Evidence presented at the hearing on the motion for a new trial indicated the jury had reached a verdict before the trial judge instructed them on this matter.

The defendant relies upon Willocks v. State, 546 S.W.2d 819 (Tenn.Cr.App.1976), and on Billy Ray Collins v. State, Court of Criminal Appeals at Knoxville, filed February 4, 1980, in support of his motion based [438]*438on this incident. He further relies upon several cases which deal with jury separation to insist the burden is on the state to show there was no prejudice to him as a result of the occurrence.

In Willocks and Collins the convictions were reversed because the defendants were shackled in the courtroom during their trial. This, of course, is not the situation in this case. We are of the opinion this situation falls within the ruling of State v. Groseclose, 615 S.W.2d 142 (Tenn.1981), wherein the Supreme Court held a brief viewing of the defendant in handcuffs did not warrant a new trial where the record did not show anything further which would prejudice the jury against the defendant.

The record in this case is more complete than the Groseclose record. We do not think the defendant was prejudiced by the occurrence. The evidence of the defendant’s guilt is clear. The record indicates beyond a reasonable doubt this occurrence did not deprive him of a fair trial.

The defendant says he was denied a previous statement of a witness prior to cross-examination contrary to Rule 16(a) of Tennessee Rules of Criminal Procedure.

This statement was a recorded telephone conversation between the witness, Stoner, and an Officer McElroy, who was also a state’s witness. The state was unaware of the recording. However, McElroy testified at trial he was not sure he had recorded any conversation of Stoner.

During the trial the defendant did not make a motion for any previous statements of Stoner, and because of this, he would not be entitled to relief on this basis. The defendant insists, however, he is entitled to a new trial on the failure to be supplied with the Stoner statement because he asked for previous statements of McElroy and he would have had the Stoner statement if McElroy’s statements had been supplied.

Whether this is sufficient basis on which to grant a new trial or not we need not decide. The taped conversation was made an exhibit to this record. We have reviewed the tape and see hardly any contradictions in this conversation and the testimony of Stoner. In view of the extensive cross-examination of Stoner, we can find no harm done the defendant in this regard.

The defendant objects to the use of the word “failure,” in instructing the jury on the right of the defendant not to testify. The trial judge instructed the jury in accordance with the Tennessee Pattern Jury Instructions § 38.06. In Yelton v. State, 211 Tenn. 464, 365 S.W.2d 877 (1963), the Supreme Court approved a jury instruction containing this word. There is no error in this instance.

The trial court was not required to give the defendant’s requested instruction on how to evaluate the testimony of a drug addict. The judge’s instruction fully covered the manner in which the jury should weigh the testimony of witnesses and in how they should assess the credibility of the witnesses. When the general instruction covers the issue raised, it is not error to refuse a requested charge on the same issue. Edwards v. State, 540 S.W.2d 641 (Tenn.1976).

The first count of the indictment charged the defendant with murder in the first degree by alleging the killing was done feloni-ously, willfully, deliberately, maliciously and premeditatedly or in the perpetration of a felony, to wit: robbery.

The defendant filed a motion to dismiss the indictment because it stated two offenses in one count. The state moved to dismiss the felony-murder charge, and the court allowed the indictment to be amended to show only the charge based upon premeditation, etc. The court then denied the defendant’s motion to dismiss. The defendant objects to this procedure.

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

Related

State of Tennessee v. Tina Nichole Lewis
Court of Criminal Appeals of Tennessee, 2020
State of Tennessee v. Robert Andrew Hawkins
Court of Criminal Appeals of Tennessee, 2016
State of Tennessee v. Torrez Talley, Jevon Bryant, and Keith Ezell
Court of Criminal Appeals of Tennessee, 2006
State v. Copenny
888 S.W.2d 450 (Court of Criminal Appeals of Tennessee, 1993)
United States v. Mobley
28 M.J. 1024 (U S Air Force Court of Military Review, 1989)
State v. Williams
768 S.W.2d 714 (Court of Criminal Appeals of Tennessee, 1988)
State v. Duncan
698 S.W.2d 63 (Tennessee Supreme Court, 1985)
State v. Wright
695 S.W.2d 540 (Court of Criminal Appeals of Tennessee, 1985)
State v. Hopper
695 S.W.2d 530 (Court of Criminal Appeals of Tennessee, 1985)
State v. Frazier
683 S.W.2d 346 (Court of Criminal Appeals of Tennessee, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
644 S.W.2d 435, 1982 Tenn. Crim. App. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-keele-tenncrimapp-1982.