Frazier v. State
| Decision Date | 28 December 1977 |
| Citation | 566 S.W.2d 545 |
| Parties | Dewey Scott FRAZIER, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Cary C. Taylor, Thomas R. Bandy, III, Kingsport, for appellant.
Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., H. Greeley Wells, Asst. Atty. Gen., Blountville, for appellee.
The defendant Dewey Scott Frazier, appeals from multiple convictions in the Criminal Court of Sullivan County. He was sentenced to not less than twenty-five years nor more than forty years confinement upon his conviction for bank robbery. This sentence was enhanced to a life sentence upon the jury's verdict, finding the defendant to be an habitual criminal. He received a five-year sentence upon conviction for using a firearm during the commission of a felony, and a sentence of eleven months and twenty-nine days for an assault and battery conviction. The sentences were ordered to run consecutively.
The defendant makes twelve assignments of error, attacking the various convictions on numerous grounds. They are without merit.
In Assignments Seven, Eight and Nine, the defendant attacks the evidence and the law upon his convictions for bank robbery, use of a firearm in the commission of a felony, and assault and battery. This prompts us to summarize the accredited evidence. The evidence of the defendant's guilt of these three offenses is overwhelming. Shortly before closing time on 14 September 1976, the defendant entered the Plaza Branch of the First National Bank of Sullivan County and waited for about fifteen minutes to see Mr. Jeffrey Smith, the loan officer. Just before 4:00 o'clock P.M., he entered Mr. Smith's office and introduced himself as Doug Shelton. He discussed the possibility of a loan and had the slight odor of alcohol on his breath. After the defendant and Mr. Smith completed their conversation, they walked out of Mr. Smith's office. Mr. Smith was ready to unlock the bank's door, as the bank was then closed, when the defendant pointed a pistol at him saying,
At gunpoint, the defendant forced Mr. Smith behind the teller's cage and told the six employees, "I want your money."
The defendant handed a brown paper bag to Mrs. Zelda Breeding, a teller, and forced her to go down the line of teller's cages and take the money from the cash drawers. He ordered the remaining employees to "hit the floor." As Mrs. Breeding removed cash from the teller's drawers, she activated the bank's alarm system and also a camera system within the bank. She also placed "bait money" in the paper sack.
The telephone rang and the defendant's gun discharged, shooting Mrs. Breeding's fingers. The defendant then forced Mr. Smith to unlock the bank door for him. The defendant did not conduct himself as an intoxicated person while in the bank. He took $4,138.00.
Mr. Smith was met by a City Policeman as he was leaving the bank. Mr. Smith asked a cleaning lady if she had seen anyone come out of the bank and the cleaning lady responded, "There they go in a car," referring to a white Corvair in which the defendant was riding. It turned west on Bloomingdale Pike. Mr. Smith gave its description and its direction of travel to the police officer.
The cleaning lady had initially seen the white Corvair in the bank parking lot with its engine running and an individual sitting at the wheel. She then saw a man run out of the bank and get into the Corvair. The cleaning lady noticed that the rear license plate of the Corvair was folded down, concealing the numbers. The cleaning lady gave FBI agents this information about 5:00 P.M.
Police officers Gibson and Doty, after having received descriptions of the Corvair over their radio, observed the white Corvair and pursued it. The Corvair stopped and a man known by the officers to be the defendant, got out of it. The officers blocked the Corvair with the police car and Officer Gibson apprehended the defendant after a chase on foot. The defendant had a gun when he got out of the Corvair, but it was not in his possession when he was searched and handcuffed by Officer Gibson.
Subsequent investigation revealed that the defendant placed something behind a shovel which was propped against a house in the area where the defendant was arrested, and that the defendant was seen throwing away the gun. The paper sack containing the money was found behind the shovel and the gun was found where the individual had seen it thrown by the defendant. Some of the money in the paper sack was identified by its serial numbers as the "bait money" from the bank. Sunglasses worn by the defendant during the robbery were found in the front seat of the police car which was used to transport the defendant to jail. The defendant had twenty bullets in his pocket when arrested. He had a slight odor of alcohol on his breath at the time of his arrest, but was not intoxicated. There was other evidence tending to link the defendant with these crimes but we do not deem it necessary to further detail the State's evidence.
The defendant's wife and a friend testified that the defendant took several valium capsules on the morning of the crime and drank one-half pint of pure-grain alcohol prior to robbing the bank. Another defense witness saw the defendant between 12:30 and 1:00 P.M. on the day of the robbery and saw no indication that he was intoxicated. The defendant did not testify.
The defendant stands before this court clothed in a presumption of guilt and the burden has now shifted to him to show that the evidence preponderated against the jury verdicts of guilty, approved by the Trial Judge. This he has failed to do. He has more than sufficient convictions to bring him within the habitual criminal statutes. We must overrule Assignments Seven, Eight and Nine. State v. Grace, 493 S.W.2d 474 (Tenn.1973); Jones v. State, 548 S.W.2d 329 (Tenn.Cr.App.1976).
In Assignment Ten, the defendant says that the Court erred in refusing to grant his motion to quash the indictment because it "failed to state with particularity the alleged crime as specified in the statute for bank robbery."
The statute defining bank robbery is T.C.A. § 39-3902:
The count of the indictment charging the defendant with bank robbery is as follows:
"The Grand Jurors for the State and County aforesaid, upon their oath present and say that Dewey Scott Frazier on or about September 14, 1976, and before the finding of this indictment in the State and County aforesaid did unlawfully, willfully, feloniously, forcibly and by the use of a deadly weapon, namely, a gun, take and remove approximately $4,138.00 in bank funds from the person or presence of Zelda Breeding, an employee of the Plaza Branch of the First National Bank of Sullivan County, Tennessee, who was charged with the care, custody or keeping of said monies, which monies were in possession of the Plaza Branch of the First National Bank of Sullivan County, Tennessee, a banking house, by putting the said Zelda Breeding in fear, contrary to the laws of the State of Tennessee, and against the peace and dignity of the State of Tennessee. (Emphasis supplied.)
The defendant does not specify what he deems to be defective about the indictment. He says that the indictment is "so vague, general and indefinite" that it violates his Fifth and Sixth Amendment rights and "is couched in such general terms and language that not only is defendant unable to prepare his defense, but he could not plead an acquittal or conviction in bar of any other proceedings against him." The defendant cites no authority in support of his contention and is vague and indefinite as to why he deems the indictment to be "vague and indefinite."
We think the indictment meets the requirements of T.C.A. § 40-1802:
The indictment sufficiently charged: the robbery occurred by violence and putting Mrs. Breeding in fear; she had charge of the care, custody and keeping of the money; the money was bank funds; and, the money was taken from the possession of the bank at the banking house. The indictment stated the facts constituting the offense with sufficient certainty to enable the court to pronounce the proper judgment and to protect the defendant against a future prosecution for the same offense. The indictment was sufficient. See, Fox v. State, 171 Tenn. 226, 101 S.W.2d 1110 (1937); Pope v. State, 149 Tenn. 176, 258 S.W. 775 (1924); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852 (1906). Assignment Ten is overruled.
In the fourth assignment of error, the defendant complains of the Trial Court's refusal to grant his motion for a change of venue. In...
To continue reading
Request your trial
-
State v. Hall
...More importantly, the trial court gave a curative instruction which the jury is presumed to have followed. Frazier v. State, 566 S.W.2d 545, 551 (Tenn.Crim.App.1977). While Mr. Pallay should not have testified that he and appellant Quintero had previously committed an armed robbery together......
-
Quintero v. Carpenter, 3:09-cv-00106
...instructions. It is presumed that the jury followed these instructions and disregarded the prosecution's improper argument. Frazier v. State, 566 S.W.2d 545, 551.7The appellants next contend that General Atkins' closing argument went beyond the scope of opening argument and of the appellant......
-
State v. Rollins
...self-incrimination, as in this case, the right against self-incrimination is the stronger and paramount right. Frazier v. State, 566 S.W.2d 545, 551 (Tenn.Crim.App.1978). See United States v. Johnson, 488 F.2d 1206 (1st Cir.1973); United States v. Wyler, 487 F.2d 170 (2nd Cir.1973); United ......
-
State v. Dicks
...self-incrimination, as in this case, the right against self-incrimination is the stronger and paramount right. Frazier v. State, 566 S.W.2d 545, 551 (Tenn.Crim.App.1978). See United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Wyler, 487 F.2d 170 (2nd Cir. 1973); Unite......