Bolin v. State

Decision Date03 June 1966
Citation23 McCanless 4,219 Tenn. 4,405 S.W.2d 768
Parties, 219 Tenn. 4 Bobby Edward BOLIN v. STATE of Tennessee.
CourtTennessee Supreme Court

Warren Miller and J. E. Madden, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., and Edgar P. Calhoun, Asst. Atty. Gen., Nashville, and Jewett Miller and Edward Rucks, Asst. Dist. Attys. Gen., Memphis, for the State.

OPINION

BURNETT, Chief Justice.

The parties will hereinafter be referred to as the defendant and the State, as they appeared in the trial court.

The defendant was tried in the Shelby County Criminal Court for the crime of robbery, was convicted and punishment fixed at five years' imprisonment.

Defendant's motion for a new trial was overruled and an appeal has been perfected to this Court, in which the assignments of error are:

I. The evidence preponderates against the verdict of the jury, and there is no evidence to support the verdict.

II. The Court erred in failing and refusing to require the District Attorney General of Shelby County, Tennessee, to produce the written statement of the prosecuting witness given prior to the trial of this cause.

III. The trial court erred in failing to charge the lesser included offense of assault and battery, the indictment having charged that the defendant did by force and violence make an assault on the witness. It was, therefore, error on the part of the court by its failure to charge the lesser included offense.

IV. The court erred in charging, as follows:

'The law says that the defense of an alibi should be received by the jury discreetly and cautiously because it is a defense that is easily manufactured or fabricated.'

This portion of the charge directed the jury to be suspicious of any witness that may testify for the defendant, and in effect is a comment on the weight of the evidence and directs the jury to require more proof than is ordinarily required in criminal cases.

V. The court erred in failing and refusing to grant the defendant's motion for a mistrial on the ground that the term 'Alias Bobby Bowlin' should have been stricken from the indictment as requested by the defendant.

VI. The conduct of the District Attorney General was such as to influence the jury in that the Attorney General accused the defense counsel of 'chicanery' during the course of the trial, and such accusation prejudiced the jury toward the defendant so as to prevent his having a fair trial.

VII. The defendant was denied his constitutional rights as a citizen of Tennessee and of the United States in that he was arrested and confined in the police station and was denied the right to use the telephone and during such confinement was interrogated by the police department without being advised of his rights not to make a statement and to have assistance of counsel.

The assignments of error necessitate a recitation of the following facts as they appear in the record of the trial of this cause.

From the testimony of the victim of the robbery in question it appears that on the afternoon of March 3, 1964, he had in his possession some $345.00. He went to a restaurant in Memphis at about dark and there spent the evening visiting with friends.

During the course of the evening the victim was asked by the defendant to buy the defendant a glass of ice and a soft drink. The victim complied with this request, and as he paid for the items it was possible for the defendant to see some five dollar bills in the victim's billfold. Once during the evening the victim went to the restroom and had removed his shoe in which he had cached some money. The defendant had followed him to the restroom and the victim remarked that his shoe was hurting him; to which the defendant only answered 'uh-huh' and left the restroom.

It was near midnight when the victim left the restaurant where the defendant remained. Having walked one block from the restaurant to await a bus, he saw the defendant come from behind some used cars parked in the vicinity. The defendant asked the victim for money and the victim replied that he didn't have any; whereupon the defendant knocked the victim down and commenced stomping and kicking him to the extent that the victim suffered locerations about the head as well as two fractures about his mandible. One witness who saw the victim testified that he had been beaten fiercely. His glasses were broken; his ear was completely cut through, with one hook of the eyeglasses sticking out of his ear; the bottom plate of his false teeth was broken and blood was coming from his nose and mouth.

Although dazed and apparently only semiconscious, the victim recalls that the defendant took his money and that he was pushed or thrown into a car and taken somewhere and dumped out.

The proprietor of the restaurant recalled seeing the defendant in her restaurant the night of the robbery and identified a picture of the defendant for police officers later as the man who left the restaurant shortly after the victim left. She testified that the victim was not intoxicated and that he did flash a roll of money before he left about 11:00 or 11:30 p.m. alone.

Memphis policemen answered a call to South Third Street where they found the victim in a beaten condition. At that time the victim told them of the assault and robbery, and that the robber was a man with whom he had been drinking at the restaurant.

The defendant was arrested on March 28, 1964, and held for investigation. On March 30, 1964, the defendant was identified in a lineup by the victim.

An officer of the Memphis Police Department, Robbery Bureau, questioned the defendant on March 29, 1964. The defendant was advised that any statement he made could be used against him. The defendant denied to the officer that he committed the robbery, saying that he went home from the care.

It appears that the delay in charging the defendant with the crime--from Saturday to Monday--was because the police department could not find the victim for the identification of the defendant. The defendant was positively identified by the victim on Monday morning and a preliminary hearing was held at 11:00 a.m. that same morning.

The defendant testified in his own behalf that he left the restaurant previously mentioned and that he went to another restaurant and thereafter was in the company of two ladies and another man. This testimony was partially corroborated by one of the ladies.

The first assignment of error is that the evidence preponderates against the verdict. It is insisted in this regard that the State's witness in chief should not have been believed by the jury in that there were discrepancies in his testimony and that his credibility was questionable.

We must view this contention in the light of the well-settled rule in this State that the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. Such verdict also removes the presumption of innocence, raises the presumption of guilt and puts upon the defendant the burden of showing that the evidence preponderates against the verdict. Cooper v. State, 123 Tenn. 37, 138 S.W. 826; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523.

The defendant in the case at bar has not overcome the aforementioned presumption of guilt raised by the verdict of the jury against him. Belief or disbelief of the victim is a decision which is within the jury's exclusive province, and it is obvious from their verdict that they believed the victim and not the defendant. At this appellate level we must adopt this evaluation of credibility as our own in accordance with established and well founded rules of trial and appellate practice.

The second contention of the defendant is that the trial court erred in failing and refusing to require the State to produce a statement made by a prosecuting witness. The essential question pertinent to this second contention is whether or not the defendant had any right to have such a statement produced by the State at the trial. In this State the defendant has a statutory right to obtain his Own written statements or a list of witnesses to any oral statement he may have made which are against his interest pursuant to T.C.A. § 40--2441.

This Court has held, in effect, that a Federal statutory right to the prosecution's evidence is not a constitutional right. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385; Brenner v. State, Tenn., 398 S.W.2d 252.

Relevant in our consideration of this assignment is just how this issue arose. Defendant's counsel cross-examined the prosecuting witness at length. In the course of this cross-examination the question arose as to whether or not the prosecuting witness had made a statement to the police. The prosecuting witness testified that he did not remember whether he had or had not made or signed a statement for the police. When one of the investigating officers took the stand, defense counsel asked him if the prosecuting witness had made a statement to him in the course of his investigation, to which the investigating officer gave an affirmative answer, and stated further that any such statements had been turned over to the Attorney General. Defense counsel requested the statement at that time and it was not given to him. The trial judge refused to require the Attorney General to produce the statement, and this refusal is the action of the trial...

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