Harrell v. State

• Decision Date: 02 October 1979
• Citation: 593 S.W.2d 664
• Parties: James HARRELL and Kenneth McKelvey, Appellants, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 664

593 S.W.2d 664

James HARRELL and Kenneth McKelvey, Appellants, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee, At Knoxville.

Oct. 2, 1979 Permission to Appeal Denied by Supreme Court Jan. 28, 1980.

Ralph E. Harwell, Knoxville, for Harrell, appellant.

W. P. Boone Dougherty, Knoxville, K. David Myers, J. Howard Collette, Maynardville, for McKelvey, appellant.

William M. Leech, Jr., Atty. Gen., William P. Sizer, II, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Richard R. Vance, Raymond Shirley, Asst. Dist. Attys., Sevierville, for appellee.

OPINION

TATUM, Judge.

The appellants, James Harrell and Kenneth McKelvey, were each sentenced to a term of 15 years in the state penitentiary after their conviction for armed robbery. In separate briefs, they assign error relating to the trial judge's instructions to the jury, the admission of evidence of another armed robbery allegedly committed by the appellants, and the refusal of the trial judge to quash the indictment. Harrell also attacks the weight and sufficiency of the evidence. We find no reversible error.

The accredited evidence established that the two appellants arrived at Luttrell Supermarket in Union County at about 3:00 o'clock P.M. on 13 July 1978 in a distinctive 1977 Camaro automobile owned and driven by Harrell. Harrell backed the Camaro to the building with its front facing the street.

McKelvey went into the store and asked the cashier, Mrs. Imogene Dukes, for a package of cigarettes; he then pointed a pistol at her and demanded all of the money. Mrs. Dukes placed paper currency, rolled coins and loose change totaling $1,802.19 in a paper bag and gave it to McKelvey. She observed Harrell standing inside the store at the front door, detaining the store's bag boy, who was about to enter the store. As Mrs. Dukes approached the front door, McKelvey ordered her to "Get back in there." The two appellants left the store together. Mrs. Dukes made a positive line-up and in-court identification of the two appellants.

Acting on a radio dispatch, Deputy Sheriff Wayne Lee of Claiborne County set up a roadblock on Highway 131 by parking his unmarked detective car across the northbound lane and turning on the flashing blue light. He saw the red 1977 Camaro coming toward him with a marked Grainger County Police car, its siren sounding and blue light flashing, less than one-fourth mile behind in pursuit. The red Camaro was traveling at a high rate of speed and when Deputy Lee observed that it was not going to stop, he fired twice at the front tires with a 12 gauge shotgun; after the Camaro had passed, he fired the shotgun at the rear of the car. Deputy Lee followed the Camaro and soon found it in a ditch on the left side of the road; it was unoccupied with both doors standing open and the motor smoking. The wind was blowing $10 bills across the road from the Camaro and there was a pile of rolled coins about ten feet behind the Camaro. A quantity of .22 caliber bullets were on the passenger side of the front seat of the Camaro and .25 caliber bullets were between the seats.

The appellants walked to a nearby barn where Joe Green and a neighbor were working on an automobile. They first asked to use the telephone, but when they were told that there was no telephone, they asked to employ Joe Green and his companion to drive them to Tazewell. Joe Green had heard about the nearby robbery and the pursuit of the robbers in the area and he observed the handle of a pistol protruding from Harrell's pocket. Since he was afraid of the appellants, Green told them that his car would not run; however, he did give them the keys to his wife's green 1970 Ford Galaxy. He told the appellants that he trusted them and he asked them to leave the car at any service station in Tazewell. Harrell gave Green a $20 bill and the appellants drove the Ford away.

Hancock County Deputy Sheriff Lester Hyatt and Sheriff Seals were working on this case in Mr. Green's neighborhood when Green came running toward the officers, yelling that his car had been "stolen." The officers drove in the direction indicated by Green and came upon the green Ford parked in the road; McKelvey was outside the Ford talking with two ladies in a red car. McKelvey drew a small caliber pistol and Deputy Hyatt fired a warning shot over the car. McKelvey leaped in the passenger's side of the Ford and Harrell drove off at a high rate of speed. The uniformed officers returned to the marked police car and pursued the Ford, following it at close range and shooting at the rear tires. The green Ford went out of control and crossed the road; the officers covered the appellants with firearms and they submitted to arrest.

Harrell had exactly $506 in denominations of $20, $10, and $1 bills on his person. Approximately $350 of this amount was jammed in his front pockets; the remaining $100 to $150 was in his wallet. McKelvey had the total sum of $953 crammed into both of his front pockets. While Hyatt was searching Harrell, he told him that "his piece" was in his back pocket, ¹ but Hyatt found no weapon on Harrell. A .25 caliber pistol, fully loaded, was lying on the driver's seat of Mr. Green's Ford where Harrell had been sitting. Also, a fully loaded .22 caliber revolver was lying in the floor board of the Ford on the passenger's side in plain sight of the officers.

The appellant, McKelvey, testified that $153 had been paid to him for painting a house occupied by Beth Holt, Tammy Holt, and Susan Loftis. On the night of 12 July 1978, he went to their house and found his friend, Harrell, in the red Camaro. The three young women and the appellants went to a party near Norris Dam where McKelvey sold two pounds of marijuana to Garry Butner for $800. Later that night, after consuming "many bottles of beer and drugs" including valiums, McKelvey returned to this same house. McKelvey stayed there overnight; Harrell came by the house in his red Camaro about 9:00 o'clock A.M. on 13 July 1978. During the morning, McKelvey, drinking beer and eating valiums, rode around with Harrell in the red Camaro.

McKelvey also testified that he did not remember entering Luttrell's Supermarket. He remembered that as he was riding down the road with Harrell driving, they saw an unmarked car with two men, armed with revolvers, standing outside. When Harrell stopped the car and asked the men "What's happening," McKelvey thought of the bag of marijuana, quantity of valiums and cooler of beer in the car. Thinking that the two men were narcotics officers, he told Harrell to "bust it;" Harrell started down the highway when the men started shooting at them. The police wrecked the car by shooting out the tires; the appellants got out of the car and ran across a couple of mountains to Mr. Green's barn.

McKelvey further testified that after borrowing Mr. Green's automobile, he and Harrell observed the two women in the parked automobile and stopped to ask directions. McKelvey was standing outside the car when two men in a marked police cruiser pulled behind them and began shooting at them. He jumped into the passenger's side of the Green Ford and they drove off with Harrell driving; the pursuing police shot McKelvey in the arm.

McKelvey denied having any knowledge of a pistol being in either the red Camaro or the green Ford. ² He denied either having a pistol, seeing a pistol, or using a pistol in a robbery on the day before this incident.

The appellant Harrell testified that after McKelvey joined him on the day of the robbery, they obtained beer. Harrell decided to show McKelvey where he had formerly lived, and as he was driving McKelvey there, they stopped at Luttrell's Supermarket to get a beer from the trunk of the car. He got a beer and McKelvey got out of the car and disappeared for a time. Harrell testified that he stood in the parking lot, then got back into the car, never entering Luttrell's Supermarket and not knowing that McKelvey was committing a robbery. When McKelvey returned to the car, Harrell drove off in complete innocence. When they reached the roadblock, he observed two men with .357 magnums and the unmarked police car across the road. He stopped, but was afraid of the armed men and drove off when they started shooting at him, wrecking his car.

Afraid of the men in pursuit, they walked through the field, hiding behind bushes when they saw a marked police cruiser drive down a road. They stopped at the Green barn as he wanted to call the Sheriff to find out why he was being pursued, but after learning there was no telephone, they borrowed the Green Ford. Soon after they stopped to talk with the girls beside the road, the police car drove up and started shooting at them again and they fled.

Harrell denied having or seeing a pistol in either the Green Ford or in his red Camaro and he denied leaving .22 caliber and .25 caliber ammunition in his red Camaro. He did not own a pistol and did not have one on the day of the Luttrell Supermarket robbery or the day before the robbery. He testified that he had approximately $600 on his person, but that he had obtained it prior to the robbery, and that he only had about $70 in his front pockets. He testified that McKelvey was "high" on that day, but was never "drunk or out of his mind."

Over the objection of the appellants, the State was permitted to prove in rebuttal that on 12 July 1978, the day before the Luttrell Supermarket robbery, the two appellants drove to Tucker Drug Store in Knoxville in Harrell's red Camaro. After parking the car in an alley, McKelvey entered the drugstore, finding the owner, Mr. Basil Tucker, alone. McKelvey asked Mr. Tucker for masking tape and Tucker told him where it could be found. McKelvey got the tape and returned, holding a .22 or .25 caliber pistol on Mr. Tucker. McKelvey ordered Tucker to lie on the floor and taped his eyes so that he could not see. Then, Tucker heard another person come inside the store and...