Gwin v. State
| Citation | 523 S.W.2d 636 |
| Parties | Robert Irwin GWIN et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error. |
| Decision Date | 24 January 1975 |
| Court | Tennessee Court of Criminal Appeals |
Eulyse M. Smith, Memphis, for Gwin.
Anthony J. Sabella, Memphis, for Partee.
Walker Gwinn, Memphis, for Howard.
R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Arthur T. Bennett and Leland M. McNabb, Asst. Dist. Attys. Gen., Memphis, for defendant in error.
OPINION
Plaintiffs-in-error, Robert Irwin Gwin, Floyd L. Partee and Bobby Lee Howard appeal their respective convictions for first degree murder (in the perpetration of a robbery) and one hundred (100) year penitentiary sentences. A fourth accused, Percy Lee James, was granted a severance because mental illness required his commitment to Central State Hospital. Gwin and Partee have retained counsel, while Howard is represented by the Public Defender.
On January 5, 1972, the Silver Saver Grocery Store in Memphis was robbed and a handy man at the store, Jessie Rogers, was shot. He died of his wounds eighteen days later.
Plaintiffs-in-error question the legal sufficiency of the convicting evidence. The State's evidence included several eye-witnesses who identified Gwin as being a participant in the robbery, and as the one who shot Rogers. Gwin also gave a free and voluntary statement admitting his part in the robbery and fatal shooting. Partee was identified by two witnesses as being an active participant in the robbery, during which he was said to have brandished a gun and demanded money from the cashier, and shot the cashier. Partee also gave a free and voluntary statement admitting these facts. The third plaintiff-in-error, Howard, had his car placed at the crime scene. An eyewitness testified that Howard 'looked like' the driver of the car. Howard freely and voluntarily gave a statement in which he admitted that he transported the other participants to and from the robbery scene and that the robbery was his idea. He also admitted sharing in the fruits of the robbery.
We hold that the convicting evidence is legally sufficient, and the total evidence does not preponderate against the verdict and in favor of innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); State v. Grace, Tenn., 493 S.W.2d 474 (1973).
Error is assigned upon the trial court's denial of severances. It is clear from this evidence that each of the plaintiffs-in-error was involved in the planning and consummation of this robbery-murder, and that there was such an overlapping of the proof as to make a joint trial desirable as a practical matter. Unless clear prejudice resulted to one or more of the defendants, so that an abuse of the trial judge's discretion in the matter is made to appear, we will not disturb his action on appeal. Gant v. State, 3 Tenn.Cr.App. 658, 466 S.W.2d 518 (1969); Williams v. State, Tenn.Cr.App., 491 S.W.2d 862 (1972). We find no such prejudice, and overrule the assignment.
The third assignment of error, also commonly assigned by all three, complains of the admission into evidence of the inculpatory statements, on the ground that this was a violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1969). That rule is that an accused's right of cross-examination secured by the confrontation clause of the Sixth Amendment to the federal constitution is violated where, upon a joint trial with a non-testifying co-defendant, the co-defendant's confession inculpating the accused is admitted into evidence, even though the trial judge instructs the jury not to consider the confession against the accused but only against the confessor.
In the case sub judice, only Gwin failed to take the stand. Hence, it is only the plaints of Partee and Howard as they go to the admission into evidence of Gwin's statement that facially raise a Bruton question. To further bring the question into focus, not only did the trial judge instruct the jury that they could consider the respective statements only against its maker, but each was redacted to substitute 'blank' for the names of the other participants. It is also relevant to reiterate that all had given statements, not just Gwin.
While it is arguable that Bruton violations occurred as to Partee and Howard, despite the redaction of the statements, Taylor v. State, Tenn.Cr.App., 493 S.W.2d 477 (1972), we have held that where all three co-defendants confessed and there wasn't even a redaction but only a proper instruction from the court to consider each confession only against its maker that no Bruton violation occurred. O'Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597 (1970). In the case sub judice, we had both a redaction and individual confessions. Additionally, the U.S. Supreme Court has held that a Bruton violation does not call for a reversal where such incompetent...
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Taylor v. State
...of a felony and sentenced him to 100 years imprisonment. On appeal, the conviction and sentence were affirmed. Gwin v. State, 523 S.W.2d 636 (Tenn.Crim.App.1975), cert. denied (Tenn.1975). Four years later, in January of 1979, former Governor Ray Blanton commuted Gwin's sentence to time ser......
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State v. Robinson, 14646
...of guilt of the defendants, other than the confessions. There is no doubt that Elliott diluted somewhat our opinion in Gwin v. State, 523 S.W.2d 636, (Tenn.Cr.App.1975), in which we held that in the total context of that case redacted statements, similar to those in this case, were admissib......
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State v. Olivera
...was able to extensively cross-examine J.S., we conclude that plain error review of these issues is not warranted. Gwin v. State, 523 S.W.2d 636, 638 (Tenn. Crim. App. 1975) (holding that "[t]here was no denial of the fundamental right of cross-examination" when the trial court interrupted d......
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Alexander v. State
...error. Reversed and remanded. RUSSELL, P. J., and GALBREATH, J., concur. * Thus this case must be distinguished from Gwin v. State, 523 S.W.2d 636 (Tenn.Cr.App. 1975), in which this Court held that there was no Bruton violation because, among other factors, the confessing co-defendant's sta......