Alexander v. State
| Citation | 562 S.W.2d 207 |
| Parties | C. L. ALEXANDER, Appellant, v. STATE of Tennessee, Appellee. 562 S.W.2d 207 |
| Decision Date | 18 March 1977 |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Hughie Ragan, Jackson, for appellant.
Brooks McLemore, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Howard F. Douglass, Asst. Dist. Atty. Gen., Jackson, for appellee.
OPINION
The defendant-appellant, C. L. Alexander, and his codefendant, James Morrow, were indicted for assault with intent to commit first degree murder. Both were convicted of assault and battery and sentenced by the jury to eleven months and twenty-nine days incarceration. Only Alexander appeals the conviction.
There was a sharp conflict in the testimony at trial. According to Melvin Perry, the 61 year old victim, two men stormed through the front door of his house one night as he lay sleeping in his bed, knocked out the ceiling lights, beat, kicked and then dragged him onto the front porch. There they stripped Perry of all his clothes except a tee shirt, and demanded money. Perry said that after he gave them the money he had in his wallet, $14.00, they threatened to kill him if he didn't reveal the whereabouts of the "rest" of his money. The two men finally put him in an automobile and drove him to a remote spot where they pulled him from the car and physically assaulted him again. When their activity was interrupted by the passing of another car, they fled, leaving Perry injured and half-naked at the side of the road.
The occupants of the passing car sought help for Perry. A local constable came to the scene and drove the battered victim back to his house to dress before taking him to a local hospital. The constable described the house as "ramshacked": there was broken glass and blood on the porch, panes were missing from the front door (which was standing open), the electric ceiling lights had been smashed, the stove had been knocked over, and the house was in disarray.
The victim had never seen the two defendants before the day in question. Morrow had been to Perry's house earlier that day, in the company of another man who owed Perry a small amount of money. Perry accompanied them to an informal gathering at a house up the road which was attended by several other people, including the defendant, Alexander. Perry testified that he did not know Morrow and Alexander by name, but that his identification of the defendants as the two men who assaulted him was predicated on the fact that he "had done seed them" at the time of the assault and "knowed their faces."
There is no dispute that the two defendants were in the victim's home on the date in question, and that they there engaged in a physical encounter with Perry. Statements given by the defendants to police several days later at the time of their arrest were introduced at trial over objection. According to both statements, the defendants went to Perry's house because of an altercation that had occurred earlier in the day between Perry and a third party. Alexander told police he went for the purpose of seeing if the victim was "all right"; Morrow said that Alexander was angered by Perry's earlier behavior and wanted to get even with him. They gave varying reports of what occurred at Perry's home. According to Alexander, Perry was the first aggressor; according to Morrow's story, Alexander first assaulted Perry and when Perry fought back, Morrow joined the fight. They both said they later attempted to take Perry to the hospital and that when he became obstreperous, they left him on the road. Both defendants denied robbing Perry. Both were fairly young men, and everyone concerned with the case was white except Perry, who was black.
We think the evidence against the defendant, in the absence of any error committed at trial, would be sufficient to sustain the conviction. Therefore we overrule those assignments of error regarding the sufficiency of the evidence to support the verdict of the jury.
Several other assignments are likewise without merit. The defendant complains of the trial court's failure to sever Alexander's case from that of Morrow. But there was no timely motion to sever filed prior to trial. Thus the defendant has waived his right to complain on appeal of the court's failure to sever when asked to do so in mid-trial. Hoskins v. State, 489 S.W.2d 544 (Tenn.Cr.App. 1972).
Alexander next attacks a certain portion of the prosecutor's closing argument as being improper, on the ground that it contained a prejudicial misstatement of fact. There was a contemporaneous objection entered to the prosecution's averment, but it was not made on the basis now assigned as error. Furthermore, tested under guidelines previously developed by this court, we do not think the prosecutor's comment resulted in reversible error. See generally Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App. 1976).
The defendant further objects to the victim's identification of him as one of the assailants, purportedly on hearsay grounds. However, the gist of the complaint is lack of personal knowledge, and we find that the defendant's contention in this regard is not supported by the record.
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State v. Robinson, 14646
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