State v. Warren

750 S.W.2d 751, 1988 Tenn. Crim. App. LEXIS 30
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 14, 1988
StatusPublished
Cited by4 cases

This text of 750 S.W.2d 751 (State v. Warren) 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. Warren, 750 S.W.2d 751, 1988 Tenn. Crim. App. LEXIS 30 (Tenn. Ct. App. 1988).

Opinion

OPINION

BIRCH, Judge.

Convicted by a jury in the Criminal Court of Knox County of robbery accomplished by the use of a deadly weapon, aggravated kidnapping, and grand larceny, the defendant was sentenced to penitentiary terms of 60 years, 60 years, and 10 years, respectively. He appeals these judgments as of right, raising the following issues for our review:

1. Was the evidence sufficient to sustain the verdict?

2. Was the identification evidence properly admitted?

3. Was the defendant forced to wear clothing at trial which violated his due process rights?

4. Was the district attorney general’s argument prejudicial error?

5. Was it proper for the trial court to charge the jury on the law of admission?

6. Was consecutive sentencing appropriate?

The conviction for grand larceny is vacated. The remaining judgments are affirmed as modified.

Summarizing the evidence, the female victim was accosted at a shopping mall by a male who obstructed her path and ordered her to get into her car which she had just parked. Upon her refusal, the male produced a gun. At this point, a second male1 appeared, also armed with a gun. Her keys were taken from her by one assailant, who promptly slid into the driver’s seat of her car and unlocked the rear door for the other assailant, who snatched her purse from her arm, forced her into the back seat, and threatened to blow her head off if she did not keep quiet. The car left the area at high speed. The victim was able to unlock the rear door without being noticed. She then jumped from the moving car and was assisted by passers-by who observed her distress. This incident occurred during daylight hours.

Her car was recovered two days after the incident, and her purse was found in a dumpster a short distance from the car.

About a month later, the victim viewed photographs of suspects. Without hesitation, she identified the defendant as the first assailant.

The pictures were placed in different order three or four times and the victim again unhesitatingly selected the defendant each time.

Defendant was arrested about five weeks after the incident and was promptly advised of his rights. The detective testified that he asked the defendant if he had taken any drugs before “the case where the gal jumped out of the car.” The defendant responded to the effect that he was high on drugs as usual, and that he had taken a whole bunch of pills that some friends had given him, that he did not know what kind of drugs they were, but that they were good and he had taken a lot of them.

1.

The defendant contends that the proof is insufficient to support convictions for robbery accomplished by the use of a deadly weapon, aggravated kidnapping, and grand larceny. When the sufficiency of the evidence is challenged, the standard for appellate review is whether, after considering the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. On appeal, the state is entitled to the strongest legitimate view of the evidence, and all reasonable and legitimate inferences which may be drawn from the proof. State v. Cabbage, 671 S.W.2d 832, 835 (Tenn.1978). In a criminal action, a conviction will be set aside only where the reviewing court finds that the “evidence is insufficient to support the finding by the trier of fact of guilt [754]*754beyond a reasonable doubt.” Tennessee Rules of Appellate Procedure 13(e). In a jury trial, a guilty verdict, approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all conflicts in testimony in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the testimony, however, are matters entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App.1978). The jury in this case chose to accredit the testimony of the prosecution witnesses and reject the testimony of the defendant. The evidence fully supports their verdict. We conclude that any rational trier of fact could have found the essential elements of the crimes of robbery accomplished by the use of a deadly weapon and aggravated kidnapping beyond a reasonable doubt. See Tenn.Code Ann. §§ 39-2-501, 39-2-301, 39-3-1103. The evidence of defendant’s guilt in each of the two counts is more than ample to satisfy the requirement prescribed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Tennessee Rules of Appellate Procedure 13(e).

We find, however, that the taking of the purse and the taking of the vehicle were accomplished at the same time and are but parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense. See State v. Black, 524 S.W.2d 913, 917 (Tenn.Crim.App.1975).

We also faced this same issue in Keener v. State, 598 S.W.2d 836 (Tenn.Crim.App.1980), in which our esteemed colleague, Judge Daughtrey (also a member of the panel in the case sub judice), set aside a larceny conviction under much the same factual circumstances.

We accordingly vacate the grand larceny conviction.

2.

The defendant says that the trial court should have suppressed the victim’s in-court identification of the defendant because the photographic array, being unduly suggestive, tainted the later in-court identification. We find to the contrary.

Photographic arrays have been held to be appropriate in developing suspects. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Skye v. State, 506 S.W.2d 169, 174 (Tenn.Crim.App.1973). The question is whether the facts and circumstances reveal any evidence of suggestion, prompting, coaching, or any other activity which would influence the viewer. In the case sub judice, six photographs were submitted to the victim. She picked out the defendant without hesitation. The photographs were then shuffled into different order, and she again picked out the defendant. The defendant has not directed us to any evidence from which we could find that the photographic array was suggestive, and thus we need not reach the next plateau. But assuming for the sake of argument that the photographic array was improper and suggestive, the burden would yet be on the defendant to demonstrate how the photographic array created a “substantial likelihood of misidentification.” Simmons, supra; State v. Ward, 712 S.W.2d 485

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Bluebook (online)
750 S.W.2d 751, 1988 Tenn. Crim. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warren-tenncrimapp-1988.