Wheeler v. State

• Decision Date: 26 February 1976
• Citation: 539 S.W.2d 812
• Parties: Donnie WHEELER, Jr. and Johnny Lewis Carter, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 812

539 S.W.2d 812

Donnie WHEELER, Jr. and Johnny Lewis Carter, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Feb. 26, 1976 Certiorari Denied by Supreme Court July 26, 1976.

Robert S. Peters, Winchester, for Wheeler.

J. Harvey Cameron, South Pettsburg, for Carter.

R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, Robert J. Leiderman, Asst. Dist. Atty. Gen., Jasper, for defendant in error.

O'BRIEN, Judge.

OPINION

This cause was originally heard at the September, 1974 term at Nashville. In an opinion filed on March 25th, 1975, a majority of this court found that the minutes of the trial court affirmatively indicated that the plaintiffs in error were convicted by a jury of 13 members. The case was reversed under the authority of Grooms et al. v. State, 221 Tenn. 243, 426 S.W.2d 176.

Certiorari was granted by the Supreme Court on August 25th, 1975, and pursuant to T.C.A. Sec. 16--452, as amended by Chapter 77, Sec. 1, Public Acts, 1975, the case was remanded to the trial court of Marion County to determine, as a factual issue, whether the alternate juror, Jerry Morrison, participated in the deliberations and verdict of the jury entered on August 31st, 1973. The Supreme Court ruled that on a determination of this issue the record and the ruling of the trial judge should be authenticated and certified to this court for review, whereupon the opinion of this court and the trial record should be certified to the Supreme Court for final determination of all issues in the case.

We now have before us the original record, together with the briefs and assignments of error of counsel, and the findings of fact and certification of record of the trial judge on the factual issue of whether the alternate juror participated in the deliberation and verdict of the jury entered in the case.

It is now clear that on conclusion of the first day of trial a female juror on the panel, Mrs. Charlsie Fitzgerald, was excused for good cause, and was replaced on the panel by the alternate juror, Jerry Morrison. The minutes of the trial court reciting the verdict and judgment are in error insofar as they indicate that the juror, Mrs. Charlsie Fitzgerald, participated in the deliberations and the verdict of the jury. We now proceed to the merits of the case.

The first two assignments for each defendant attack the preponderance and legal sufficiency of the evidence to sustain the jury verdict.

The home of Joe Ware in the Midway Community of South Pittsburg, Marion County, Tennessee, was entered on the night of April 2nd, 1973, by two men who severly beat Mr. and Mrs. Ware in the presence of other members of the family and escaped after stealing in excess of two thousand dollars ($2,000.00). A bullet was fired into the kitchen ceiling, another through a window in the bedroom, narrowly missing Mrs. Margaret White, a daughter of the Wares. A third shot was fired into the mattress on the bed in an apparent attempt to hit Mr. Ware who had crawled under the bed to escape the beating being administered by the robbers. Carter was identified by Mrs. Ware, and both Wheeler and Carter were positively identified by Margaret White as the robbers. The fingerprints of both men were found on drinking glasses and a soft drink bottle left in the kitchen. Defendants interposed an alibi defense. Wheeler offered the testimony of witnesses who said he was in Johnson City on the night of the robbery. Carter's witnesses placed him in Chattanooga at the time. The jury rejected the testimony of the alibi witnesses. The State's evidence was adequate to warrant the verdict of the jury. The assignments are overruled.

The third assignment for Wheeler and the fifth for Carter say it was error to deny a mistrial when Mrs. Joe Ware on cross-examination, exclaimed that the defendants had killed her husband.

The record shows irrefutably that Mr. Ware died shortly prior to trial from natural causes. This fact was stipulated by the State's attorney for the benefit of the jury. From the record, it is obvious that the statement by Mrs. Ware was spontaneous and unresponsive to the cross-examination. The trial judge carefully instructed the jury not to consider the statement, after which the jury was polled. Each member of the jury assured the court they would not be influenced by the statement of the witness. Whether error in admission of evidence is prejudicial is gauged by the substance of the evidence, its relation to other evidence, and peculiar facts and circumstances of each case. Where it cannot be said from the record that evidence erroneously admtted was not prejudicial to the accused, or that it did not affect, or contribute to the verdict rendered, the reviewing court will reverse. Under the facts of this case, we do not find the comment of Mrs. Ware to be more than harmless error. T.C.A. Sec. 27--117. We overrule the assignments. Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159.

The fourth and fifth assignments for Wheeler and the sixth and seventh for Carter complain of admission of the testimony of the robbery victim, Joe Ware, taken at a preliminary hearing. It is said that the testimony was inadmissible, but if admitted at all it should have been admitted in unedited form.

Wheeler was apprehended within a few days after the robbery. Carter was not arrested until June 7th, 1973. A preliminary hearing was held on April 21st, at which Mr. Ware testified. Mr. Ware died on August 4th, 1973, about three weeks before the trial. At the preliminary hearing, Wheeler was represented by counsel. When the State offered the transcript of Mr. Ware's testimony from the preliminary ...