Campbell v. State

• Decision Date: 08 April 1971
• Citation: 4 Tenn.Crim.App. 100,469 S.W.2d 506
• Parties: Jerome CAMPBELL et al., Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 506

469 S.W.2d 506

4 Tenn.Crim.App. 100

Jerome CAMPBELL et al., Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

April 8, 1971 Certiorari Denied by Supreme Court June 7, 1971.

Hugh W. Stanton, Jr., Charles C. Burch, A. V. McDowell, and Edward W. Chandler, Memphis, for plaintiffs in error.

David M. Pack, Atty. Gen., Thomas E. Fox, Deputy Atty. Gen., Nashville, Leonard T. Lafferty and J. L. Patterson, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

OPINION

GALBREATH, Judge.

In their joint appeal from convictions and 100 year sentences from the Shelby County Criminal Court for armed robbery, the three defendants below assign numerous errors, some of which challenge the sufficiency of the evidence.

The jury heard the conflicting proof offered by the State and the defense. By its verdict it has resolved the conflicts in favor of the State, and the results, having the approval of the trial judge, are binding on this Court in the absence of a preponderance of the evidence against the verdict. See McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

In considering whether the evidence before the jury preponderates against the verdict, this 'appellate court must apply the rule that credibility of witnesses and conflicts in testimony have all been settled by the verdict of the jury. This makes unnecessary and, indeed, inappropriate, a detailed discussion of that evidence, pro and con, * * * in stating what we conclude the material facts to be as established by that testimony.' Hargrove v. State, 199 Tenn. 25, 281 S.W.2d 692.

The evidence, most of it uncontradicted except as to the nature of the roles played by the defendants in the events described, tended to prove the following. On the evening of November 3, 1969, shortly before its closing hour of 7 p.m., McGee's Super Market in Memphis was robbed by two young Negro men wearing women's stockings pulled over their heads as masks. One had a small nickle-plated revolver, the other a black pistol. A number of witnesses were in the store but none other than Mr. Travis McGee, the proprietor, was able to identify either of the men. Mr. McGee testified that he recognized Thurman Miles and Jerome Campbell in a line-up the next day and in the courtroom as the two bandits who fled the store following the robbery with almost $19,000.00 including about $300.00 in change. Most of the coin later recovered from the automobile occupied by the defendants was in wrappers the same color and containing the same amounts as those removed from the victim's premises by the robbers.

A witness, one Herman Williams, who, with another employee of the store, saw what was taking place and ran out the back door, observed a white Cadillac with orange license plates parked a short distance from the store and saw a man get in the rear of the car. For some reason not clearly revealed in the record, this car and the man entering it aroused the witness's suspicions and he returned to the store and told Mr. McGee, and the police who were immediately notified were alerted to be on the look-out for a white Cadillac bearing orange license plates in the vicinity of the store. Shortly thereafter a radio police car operator on the look-out for the suspected vehicle observed such a car with the described license tags and gave chase. The Cadillac stopped and the patrolmen in the squad car got out of their vehicle with drawn pistols and approached it and the four men one of the officers said were in it. As might have been predicted, the Cadillac drove away rapidly as the officers neared it. The officers fired at it and again took up the chase and alerted other units of the flight of the automobile, which they kept in sight until it was intercepted by another police car blocking its path. Three men ran from the car amid shots from the police. The defendant Jerome Campbell was found hiding among some trash cans nearby, Doc Walker was lying beside a house about 150 yards from the Cadillac under which the third defendant Thurman Miles was found. As one of the police officers, Patrolman Davis, approached him, Campbell made the spontaneous utterance, 'It wasn't none of me. They made me go with them.' All the defendants testified that they had nothing to do with the robbery.

The defendant Miles, found under the Cadillac, said that he was just walking along the street when he was struck by the Cadillac. Doc Walker and Jerome Campbell admitted being in the Cadillac driven by Walker who had borrowed it from his brother but said that they were flagged down by two 'dudes' who offered to pay five dollars for a ride to the Walker Homes area. While transporting these men, one of whom was said to be named James Reed, the police car was observed behind them and they pulled over and stopped. Then, according to Walker and Campbell, one of the men who had asked for a ride pulled a pistol and ordered Walker to drive off resulting in the chase already described. Both of these men say they ran from the Cadillac because they were afraid of being shot by the police, whom all three of the defendants contend beat them after their arrests.

Through the doors left open the police could see inside the Cadillac some paper money and coins, and a black .38 caliber revolver identified at the trial as being the same weapon stolen from a witness, Mrs. Shirley Gaia, by the defendant Jerome Campbell during a liquor store holdup some six weeks before. A trench coat was found outside the car about a foot from the right rear wheel. Inside the pockets of this coat were found two women's stocking and a chrome-plated .32 caliber revolver.

The assignments of error going to the sufficiency of the evidence are overruled for the reasons set forth prior to the summary of the proof, which cannot be said to preponderate against the verdict but which, taken as a whole, so overwhelmingly supports a finding of guilt that it renders harmless error which otherwise might raise a reasonable doubt as to its prejudicial effect on the jury's verdict. See Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758.

The error referred to above is set out in assignments of Campbell and Miles, identified by the owner of the store as the two bandits wearing stocking masks. The trial judge, on objection by the State, refused to allow the defendants when they took the stand to place over their heads stocking to exhibit to the jury what they would look like under the conditions witnesses for the prosecution testified the bandits were disguised. Counsel for the State referred to a rather old case in this State involving footprints as authority for his position in resisting the demonstration, and in its brief before us the State relies on this case. Stokes v. State, 64 Tenn. 619, for authority. In Stokes the attorney general set before the jury a pan containing the mud impression of a foot found near the scene of a slaying and asked the defendant to demonstrate to the jury the manner in which his foot would match the mud print. The Court observed:

'Because of this action of the Attorney General, and the assent of court thereto, this cause is reversed and remanded. In the presence of the jury the prisoner is asked to make evidence against himself. The court should not have permitted the pan of mud to have been brought before the jury, and the defendant asked to put his foot in it. We are satisfied the jury was improperly influenced thereby. And it is no sufficient answer that the judge afterwards told the jury that the refusal to put his foot in the mud was not to be taken as evidence against him. The bringing in of the pan of mud and the request of the Attorney General was improper and should not have been permitted by the court.'

Stokes correctly states an application of the constitutional protection against self incrimination. This case and its principle has no application here because an exact opposite right is involved, one of equal importance, the right of every person accused of crime to be heard in his own defense. (Constitution of Tennessee, article I, Section 9; T.C.A. § 40--2001.) While it is true that no person accused of crime may be compelled to testify at his trial, he may do so if he so chooses; and such evidence is competent if he desires to introduce the evidence in...