Christian v. State
Decision Date | 06 June 1977 |
Citation | 555 S.W.2d 863 |
Parties | Heina Leroy CHRISTIAN, Petitioner, v. STATE of Tennessee, Respondent. |
Court | Tennessee Supreme Court |
Stanley Fink, Memphis, for petitioner.
John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Alan E. Glenn, Asst. Dist. Atty. Gen., Memphis, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
Petitioner was convicted for the armed robbery of a dry-cleaning establishment and received a penitentiary sentence of ten years.
Both in the Court of Criminal Appeals and in this Court error was assigned on his behalf attacking the sufficiency of the evidence. He was positively identified by the victim of the crime, however, from photographs shown to her shortly after the incident, at a pre-trial line-up and in court. There was ample evidence offered on behalf of the State, if accepted by the jury, to sustain the conviction.
Petitioner denied the commission of the offense and contended that he was confined to his grandmother's home with influenza on the date when the offense occurred and for several days prior and subsequent thereto. His mother, grandmother and a family friend all testified in support of this contention.
The trial judge gave a special instruction to the jury on the subject of alibi, which was presented and supported by competent evidence. Although the rule is different in a number, perhaps the majority, of other states, Tennessee cases have held that when the issue of alibi is clearly raised, supported by credible evidence, the trial judge is required to give an instruction thereon, whether requested or not. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963); Taylor v. State, 2 Tenn.Cr.App. 459, 455 S.W.2d 168 (1970). In the recent case of Manning v. State, Tenn., 500 S.W.2d 913 (1973), the mandatory duty of the trial judge to instruct on the issue was recognized, although under the circumstances of that case the omission of the instructions was held to be harmless error, not requiring reversal.
In the present case the instruction given by the trial judge was a standard one, apparently long in use in Shelby County. It was identical to the charge approved by the Court of Criminal Appeals in the case of Rogers v. State, 2 Tenn.Cr.App. 491, 503-508, 455 S.W.2d 182 (1970), and contained the following sentence which was expressly upheld by this Court in Bolin v. State, 219 Tenn. 4, 15, 405 S.W.2d 768, 773 (1966):
"The law says that the defense of alibi should be received by the jury discreetly and cautiously because it is a defense that can be easily manufactured or fabricated."
Petitioner excepted to this portion of the instruction in his post-trial motion. His principal assignment of error in the Court of Criminal Appeals and in this Court is that the foregoing language represents a disparagement of alibi evidence, and constitutes an improper comment thereon, in contravention of Article VI, Section 9 of the Tennessee Constitution, which prohibits comment on the evidence by the trial judge.
This contention was rejected in the Bolin case, supra. However, both in its majority opinion and in a concurring opinion, the Court of Criminal Appeals in the instant case requested this Court to reconsider the matter and to determine whether the questioned language does not indeed represent a comment prejudicial to the accused upon evidence which often, as in the present case, may comprise the principal basis of the defense.
The overwhelming weight of authority in other states where trial judges are prohibited from making comments upon the evidence is that disparaging comments or references to the issue of alibi are erroneous. See State v. Rosenbaum, 22 Utah 2d 159, 449 P.2d 999 (1969); People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974); 2 Underhill, Criminal Evidence, § 445 (5th ed. 1956); 75 Am.Jur.2d, Trial §§ 732-733; Annot., 146 A.L.R. 1377 (1943).
Although in a great many Tennessee cases statements are to be found disparaging alibi evidence upon the ground that it is easily manufactured or fabricated, a number of them did not specifically involve jury instructions. Rather, this was simply part of the rationale of the appellate court in determining the sufficiency of the convicting evidence, and in determining preponderance of the evidence upon the record. Typical of such cases are Smith v. State, 205 Tenn. 502, 522, 327 S.W.2d 308, 317 (1959) (); Bright v. State, 191 Tenn. 249, 255, 232 S.W.2d 53 (1950); Cole v. State, 187 Tenn. 459, 462, 215 S.W.2d 824 (1948); Warren v. State, 178 Tenn. 157, 160, 156 S.W.2d 416 (1941); Thompson v. State, 24 Tenn. 138 (1844).
On the other hand, several reported decisions have dealt with the nature and type of instructions to be given by the trial judge to the jury when an alibi issue has been properly raised. In the early case of Chappel v. State, 47 Tenn. 92, 94 (1869), the following language was held to be reversible error:
"(T)hat when the defense of an alibi is set up, the jury should look with the greatest degree of strictness, and bear in mind that the proof necessary to establish the alibi must be proven with as much certainty as the State would have to establish the guilt of the accused."
The Court held that this language had improperly cast upon the accused the burden of establishing an alibi beyond a reasonable doubt. Also held to be erroneous was language to the effect that irreconcilable differences among the alibi witnesses destroyed their credibility. The Court did, however, approve, although it did not quote, instructions that the jury should receive proof of an alibi "with great strictness and attention, to avoid being frequently misled by it . . . ." 47 Tenn. at 95.
In the case of Davis v. State, 64 Tenn. 612 (1875), a charge was disapproved which left the impression that an alibi "should be fully and clearly made out in order to be a successful defense . . . ." In reversing the Court said:
Likewise in Wiley v. State, 64 Tenn. 662 (1875), a reversal was granted because of failure of the trial judge to charge that an acquittal should follow if proof of alibi raised a reasonable doubt of guilt.
In Ford v. State, 101 Tenn. 454, 47 S.W. 703 (1898), it was held erroneous to instruct that failure of the defendant to establish an alibi was "a circumstance against him", and error was also found in an instruction that proof of an alibi should cover the whole time of the transaction in question.
In Legere v. State, 111 Tenn. 368, 77 S.W. 1059 (1903), a jury instruction on alibi was reversed because it was held to be indistinct and not to conform to previous cases. Expressly approved in that case was an instruction which had been earlier approved in the case of Jefferson v. State, 3 Shannon's Cas. 329, 330 (1875), to the effect that the defendant was entitled to an acquittal if proof on alibi in connection with other proof in the case raised a reasonable doubt as to the presence of the accused at the place of the homicide. In the Jefferson case, however, the Court did approve disparaging language in the alibi instructions, and stated that it was "eminently proper" that juries be put on guard and "instructed to scrutinize the evidence to make out such defense with close attention."
In the Jefferson case, however, the Court...
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