Brady v. State

• Decision Date: 05 April 1979
• Citation: 584 S.W.2d 245
• Parties: George William BRADY and Leroy Marshall, Appellants, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 245

584 S.W.2d 245

George William BRADY and Leroy Marshall, Appellants, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

April 5, 1979 Certiorari Denied by Supreme Court July 2, 1979.

Clyde A. Dunn, Newport, Carl R. Ogle, Jr., Jefferson City, Jerry K. Galyon and David B. Maxwell, Sevierville, for appellants.

William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Al C. Schmutzer, Jr., Dist. Atty. Gen., Richard R. Vance, Asst. Dist. Atty. Gen., Sevierville, for appellee.

OPINION

DWYER, Judge.

George William Brady and Leroy Marshall were each convicted of four charges of first degree murder and four charges of use of a firearm in committing a felony. Each appellant's punishment was fixed at 99 years in the State penitentiary on each charge of first degree murder and five years in the State penitentiary on each charge of use of a firearm in the commission of a felony. The trial court ordered the sentences to be served consecutively. The appellants appeal with assignments of error.

At approximately 9:30 a. m. on Saturday, April 9, 1977, the Kodak Branch of the Citizen's National Bank located on Highway 66 in Sevier County was robbed and four persons were found shot and killed, execution-style. Three employees of the bank, Hugh Kyle Beeler, vice president and manager, Harriett Swaggerty, receptionist, and Linda Simms Davis, head teller, and Earl Underwood, a customer, were all found "lying flat on their stomachs" on the floor in the drive-in window area of the bank in close proximity to one another. Each had been shot in the head at close range with either a .38 or a .32 caliber weapon. Mrs. Swaggerty was still alive when the first investigating officers arrived at the scene; however, she expired shortly thereafter without regaining consciousness.

The record reveals that Mr. Underwood was in the bank to deposit three dollars in pennies in his granddaughter's savings account. An audit by bank officials disclosed that $28,564.40 had been taken, part of which was "bait money" (serial numbers recorded) which consisted of three five-hundred-dollar packages of twenty-dollar bills. An iron grey box was also taken from inside the vault.

The Sheriff's Office of Sevierville, the T.B.I. and the F.B.I. made an intense and immediate investigation into this heinous crime. The evidence in the record reveals that two white males were seen in a brown Torino Ford equipped with racing tires on the rear near the bank before the robbery. While on patrol at approximately midnight, April 9, 1977, a deputy sheriff of Sevier County stopped a Ford Torino which matched this description in Pigeon Forge. The driver was appellant Brady. The appellant consented to drive to the Sheriff's office at Sevierville. The deputy followed him. The record reveals that at the Sheriff's office F.B.I. Agent Ronald Reisner read appellant Brady his rights before interrogating him. Agent Reisner also read and explained to appellant Brady a "consent to search" form, which gave consent to the agents to search his car; Brady signed the form. When the appellant was asked for the keys to his car, he furnished the agents with the ignition key but said he did not have a trunk key. A thorough search of the entire car revealed $2,954 in the trunk, of which $500 was "bait money", and a .38 caliber revolver under the dash. According to an F.B.I. firearms examiner at the trial, the revolver's riflings matched the rifling impression of the bullets which were removed from three of the victims. After Brady was formally arrested, a search of his person revealed hidden in his shoes, $4,692, of which $500 was "bait money" and a key that fit the trunk of his car. Brady when questioned at that time denied knowing Marshall.

The appellant Marshall voluntarily came to the Newport Police Department in Newport, Tennessee, at approximately 9:00 p. m., April 9, and when questioned maintained that he was elsewhere at the time of the crime; that he knew Brady and was sure he was not with him that morning. He was allowed to leave but was taken into custody at approximately 5:00 a. m. Sunday, April 10, 1977. The record reveals that Mrs. Clara Nell McClure, wife of Marshall's half-brother, testified that Marshall came to her house on the evening of April 9 and asked her to bury a pistol. When she asked him if it was "hot" he said no, but he had one that would burn her hands. He also gave her a sack which he said contained $2,500 "hot ones". On April 10, 1977, Mrs. McClure gave the pistol, a .32 caliber automatic weapon and $2,510 to the F.B.I., of which three twenty-dollar bills were "bait money".

Bobbie Rollins, appellant Brady's only daughter, testified that around noon on April 9, her father and Marshall came to her house in her father's brown Ford Torino. She testified that Marshall had a bag in his hand and what appeared to be a pistol butt in his belt. They then asked her to drive them to Newport. On the way her father had her to stop at a river at which time he took the metal box to the river and later said he threw it in the river. A box was later recovered near the river and was identified as being identical to the metal box taken from the vault of the robbed bank.

Mr. Jesse Brooks, a customer at the bank on April 9, 1977, identified Marshall as the driver of a Ford Torino who inquired of him on the bank parking lot that morning as to when the bank would open. He further testified that there was another occupant in the car.

A hair found on the shirt of Mr. Underwood was identified by a fiber and hair examiner expert of the F.B.I. as exhibiting the same microscopic characteristics as do the hairs that were taken from the head of Marshall.

The appellants did not testify but offered in their behalf several witnesses and stipulated statements taken from witnesses. Defense witness, Mr. Kenneth McClure, testified that he did not see appellant Marshall on the night of April 9. Another defense witness testified he took Brady home at approximately 12:30 p. m. on April 9. Billy Cureton, owner of a used car lot in Newport, testified that on April 9, between 11:00 and 12:00 p. m., appellant Marshall had purchased a car from him.

ASSIGNMENT OF ERROR I: THE ENTIRE JURY SELECTION PROCEDURE WAS SO IRREGULAR AS TO CONSTITUTE REVERSIBLE ERROR AND THE COURT ERRED IN FAILING TO GRANT APPELLANTS' MOTION TO QUASH THE ENTIRE JURY PANEL.

Both appellants contend that the jury selection process and the denial of their motion to quash the entire jury panel was error. The appellants contend that the court consistently rehabilitated prospective jurors who had formed fixed opinions as to the guilt or innocence of the appellants which caused the appellants to exercise peremptory challenges on these jurors. We have reviewed the eight hundred or so pages of the record which cover this jury selection process. While it may be true that many of the jurors knew about appellants' prior convictions in the Federal trial for robbery, all of the jurors expressed upon their oaths they could and would give the appellants a fair trial. We are satisfied under Sommerville v. State, 521 S.W.2d 792 (Tenn.1975) and State v. Jefferson, 529 S.W.2d 674 (Tenn.1975) that the appellants had an impartial jury and the trial court did not abuse his discretion in questioning the jurors. We are also satisfied the court did not seat any juror contrary to the provisions of T.C.A. 40-2507. The first assignment of error is overruled.

ASSIGNMENT OF ERROR II: THE COURT ERRED IN DENYING APPELLANTS' APPLICATION FOR CHANGE OF VENUE.

The record shows that the appellants filed numerous newspaper articles concerning the coverage of the events, i. e., the investigation, the arrests, and the Federal trial. They also filed a survey conducted by the appellant Marshall's counsel's secretary which, the appellants contend, prove that twenty-three out of twenty-five individuals on the streets of Sevierville had heard of the bank robbery-murder at the Kodak Branch of the Citizens National Bank. The matter of change of venue addresses itself to the sound discretion of the trial judge. Rippy v. State, 550 S.W.2d 636 (Tenn.1977). The trial judge took the motion for change of venue under advisement until it manifestly appeared after the jury voir dire that a fair and impartial jury panel had been selected. Therefore, we are satisfied, as was the trial court, that no undue excitement had been shown, T.C.A. 40-2201, and that the appellants did receive a fair trial in that community. With respect to the situation where prospective jurors may have had some knowledge of the events and issues, we agree with the court in Irvin v. Dowd, 366 U.S. 717, 721, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961):

" 'The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244. It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. . . . To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut a presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

We are satisfied the trial court did not abuse its discretion in denying the motion. The assignment is overruled.

ASSIGNMENT OF ERROR III: THE COURT ERRED IN NOT QUASHING THE INDICTMENTS FOR MURDER IN THAT THE APPELLANTS HAD PREVIOUSLY BEEN CONVICTED FOR THE CRIME OF BANK ROBBERY IN THE UNITED...