Briggs v. State

• Citation: 501 S.W.2d 831
• Parties: Fred Lee Thomas BRIGGS and Arbee Coleman, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Decision Date: 04 September 1973
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 831

501 S.W.2d 831

Fred Lee Thomas BRIGGS and Arbee Coleman, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Sept. 4, 1973 Certiorari Denied by Supreme Court Nov. 5, 1973.

Hugh W. Stanton, Jr., Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., Phillip W. Brooks, Asst. Atty. Gen., Nashville, Jesse C. Mason and Thomas E. Crawford, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

OPINION

OLIVER, Judge.

Represented in their trial and here by the Public Defender appointed by the court, Fred Lee Thomas Briggs and Arbee Coleman have perfected their appeals in the nature of a writ of error to this Court contesting their Shelby County Criminal Court convictions, on March 2, 1972, of murder committed in the perpetration of a robbery, for which they were sentenced to death.

Assigning Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 as his reason for doing so, on December 1, 1972 the Governor of Tennessee commuted the sentence of each of the defendants from death to imprisonment for 99 years, thus rendering moot their Assignments of Error attacking the constitutionality of their death sentences on the basis of Furman. The effect of the latter case was considered in Bowen v. State, Tenn., 488 S.W.2d 373, wherein the Supreme Court of this State held, Inter alia, (1) that the sentence of imprisonment resulting from Executive commutation of the death sentence is given effect as if it had been originally imposed, (2) that the acceptance of commutation by the defendant is not essential to its effectiveness, and (3) that once the sentence has been commuted and the death penalty removed, the judgment is valid. So, since the defendants are no longer subject to the death penalty, and in contemplation of law their 99-year prison sentences are considered to have been their original sentences, the constitutional question regarding the death penalty no longer exists in their cases.

The defendants direct their first and third Assignments of Error to the sufficiency of the evidence, insisting that it preponderates against the verdict of the jury and in favor of their innocence. The principles to which we must adhere in reviewing a record when such Assignments are advanced have been enunciated so very many times by our Supreme Court and this Court that they are now common knowledge in the legal profession. The jury's verdict of guilt, approved by the trial judge, strips the defendant of the presumption of innocence, with which the law clothed him throughout his trial, and he stands before this Court presumed to be guilty and he has the burden here of demonstrating that the evidence preponderates against the verdict and in favor of his innocence. The verdict so approved accredits the testimony of the prosecution witnesses and establishes the State's theory of the case. We may review the evidence only to determine whether it preponderates against the verdict, and in doing so we are required to take the verdict as having established the credibility of the State's witnesses. The verdict may not be overturned on the facts unless the evidence clearly preponderates against it and in favor of the innocence of the accused. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Hancock v. State, 1 Tenn.Cr.App. 116, 430 S.W.2d 892; Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861; Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135; Phillips v. State, 2 Tenn.Cr.App. 609, 455 S.W.2d 637.

This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

Except for their testimony apart from the jury during the preliminary inquiry conducted by the court with respect to their confessions, the defendants did not testify or present any evidence during their joint trial upon a joint indictment charging them with the murder of Glenn June Salmon in the perpetration of a robbery.

About 7:30 p.m. on Monday, August 2, 191, the deceased Glenn June Salmon left Webb's Used Furniture Store, where he worked and lived, and went across the street to Lizzie Walker's Cafe to pay her for a meal he had eaten there the day before. He then visited in Ida Flood's home for a while and from there went to Mahalia Jackson's establishment where he purchased a can of beer and took it out in a brown paper sack. Shortly thereafter an unidentified man found the deceased (commonly known and referred to as Shorty) lying on the sidewalk in front of the furniture store and summoned the police. The deceased had been stabbed in the cheeks, arm, neck and chest and died from the latter wound. His pockets were turned inside out. The door to the furniture store was open, and the padlock and key were lying nearby. An unopened can of beer was in the gutter and a paper sack was on the sidewalk. The next day George Hughes, who lived near the furniture store, found the deceased's billfold and some papers in or beside his yard.

The defendants were arrested on August 4. After being advised concerning their constitutional rights, Briggs made three statements on August 4 and 5, and Coleman made two statements on August 5. In their respective statements, in which each said the other did the stabbing, the name of the co-defendant was lined out and replaced with the words 'the other person pursuant to the court's instruction. That is, in Briggs' statements 'other person' or 'this other person' was substituted for Coleman's name, and in Coleman's statements like words were substituted for Briggs' name. Thus, when the statements were read to the jury (but were not passed to the jury for examination for the obvious reason that the name of the co-defendant in each statement was only marked through and was not obliterated), the court instructed the jury that the statements could be considered only against their respective authors, and repeated the same instruction in his charge to the jury.

At the conclusion of the preliminary investigation respecting the confessions of the defendants, the court found and held that each of them made their respective confessions freely and voluntarily, without any coercion or abuse or mistreatment or intimidation or promises of any kind, after being fully advised concerning their constitutional rights in keeping with the Miranda mandate.

The determination of the trial judge as to the voluntariness of pre-trial custodial statements by the accused is conclusive on appeal unless the appellate court finds that the evidence touching those questions preponderates against the trial judge's findings. McGee v. State, 2 Tenn.Cr.App. 100, 451 S.W.2d 709; Mitchell v. State, 3 Tenn.Cr.App. 494, 501, 464 S.W.2d ,307; Gordon v. State, Tenn.Cr.App., 478 S.W.2d 911; Beaver v. State, 217 Tenn. 447, 398 S.W.2d 261; Lloyd v. State, 223 Tenn. 1, 440 S.W.2d 797. Upon appeal, the defendant has the burden of showing that the evidence preponderated against such a finding by the trial judge. Mitchell v. State, supra; Gordon v. State, supra; Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722.

Although it appears that the defendants did not expressly waive their constitutional rights in the premises, this Court has held that a waiver may be inferred from the facts of the case, and that proof of an affirmative statement by the defendant to that effect is not essential. McGee v. State, supra. See also: Monts v. State, supra.

Upon this record we cannot say that the evidence preponderates against the finding of the trial court, or that it was error to admit the confessions of the defendants in evidence and permit them to be read to the jury. Accordingly, we overrule the defendants' Assignments complaining about admission of those statements.

We also overrule their Assignments complaining about substitution of the words 'the other person' for the name of the other in their respective statements, for the reason that, as noted, none of the statements were submitted to the jury for examination, so that there was nothing before the jury showing to whom 'the other person' referred in the defendants' confessions. But over and beyond that, as will be seen from a summary of their confessions hereinafter detailed, both defendants admitted their participation in the robbery--murder. This alone renders altogether groundless their complaints about substituting 'the other person' in place of their names in their confessions.

There is no substance to the arguments of the defendants that admission in evidence of their confessions violated the Bruton rule which proscribes, generally, using one co-defendant's confession to implicate the other. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. That rule is inapplicable where, as here, all of the jointly tried co-defendants confess. O'Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597.

The substance of Briggs' extra-judicial statements is that sometime after 9:00 p.m. while he was in the House of Sound Cafe, the other person (Coleman) approached him and said, 'come on man, let's go make some money'; that he asked this person how, thinking he was referring to a burglary; that they then went outside and saw the deceased coming up the street 'from Mahalia Jackson's way,' drinking from a can of beer in a paper sack; that the other person said, 'Come on Man, let's go check Shorty out'; that he replied the deceased had no money, but the other person said he did; that he grabbed the deceased as he passed Robinson's Club, but he got away; that after the deceased reached the furniture store and unlocked the door, the other person ran and grabbed him by the neck; that the deceased threw a can of Schlitz at the other person and fought back; that...