Hawkins v. State

• Decision Date: 23 March 1971
• Citation: Hawkins v. State, 469 S.W.2d 515, 4 Tenn.Crim.App. 121 (Tenn. Crim. App. 1971)
• Parties: Charles Edward HAWKINS, Plaintiff in Error. v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 515

469 S.W.2d 515

4 Tenn.Crim.App. 121

Charles Edward HAWKINS, Plaintiff in Error. v.STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

March 23, 1971 Certiorari Denied by Supreme Court June 7, 1971.

Robert L. White, Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., Robert H. Roberts Asst. Atty. Gen., Nashville, Sam J. Catanzaro, Jr., Asst. Dist. Atty. Gen., Memphis, for defendant in error.

OPINION

OLIVER, Judge.

Charles Edward Hawkins, the defendant below, represented by retained counsel, was convicted of armed robbery in the Criminal Court of Shelby County and was sentenced to imprisonment for 10 years in the State Penitentiary.He is now before this Court upon his appeal in the nature of a writ of error duly perfected.

Jointly indicted with the defendant were Don Franklin Henry and Kenneth Bernard Morris.Those two co-defendants were granted a severance.

By his first two Assignments of Error here, as in his amended motion for a new trial, the defendant charges the trial court with error in admitting into evidence the testimony of Memphis Police Officers Burkhalter and Carlisle pertaining to blood stains found in and upon the defendant's red Mustang automobile.The obvious and insuperable difficulty confronting the defendant in this contention is that there was no defense objection whatever to the testimony of the two officers.No principle of law is more firmly established than that when no objection to offered testimony or evidence is interposed, it may properly be considered and given its natural probative effect as if it were in law admissible.This Court will not consider an Assignment of Error based on the admission or exclusion of evidence unless timely objection and exception was made in the trial court so as to give that court opportunity to make correction.Hancock v. State, Tenn.Cr.App., 430 S.W.2d 892.

Unquestionably, the rule requiring contemporaneous objection to the introduction of illegal evidence clearly serves a legitimate state interest.Prompt objection apprises the trial judge of the basis therefor, and gives the court the opportunity to conduct the trial without using the tainted evidence.If the objection is well taken, the evidence is excluded from the consideration of the jury, thus avoiding possible reversal and a new trial and greatly promoting and contributing to the orderly conduct of litigation.Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.

Moreover, as noted hereinafter, the defendant testified about the blood on his car.

As in his new trial motion, in his last three Assignments of Error the defendant challenges the sufficiency of the evidence to warrant and support the verdict of the jury, specifically claiming in his last Assignment that there was no evidence to corroborate the testimony of the alleged accomplices, Donald Franklin Henry and Kenneth Bernard Morris.In reviewing the evidence under these Assignments of Error, we are bound by the rule, stated and restated over and over by our Supreme Court and this Court, that a jury's verdict of guilt, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in the evidence in favor of and establishes the State's theory of the case.Under such a verdict, the presumption of innocence, which the law accords an accused prior to conviction, disappears and is replaced by a presumption of guilt which puts upon him the burden of showing upon appeal that the evidence preponderates against the verdict and in favor of his innocence.We may review the evidence only to determine whether it preponderates against the verdict and, in doing so, we must take the verdict as having established the credibility of the State's witnesses.The verdict will be disturbed on the facts only if the evidence clearly preponderates against it and in favor of the innocence of the accused.Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186;Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768;Webster v. State, Tenn.Cr.App., 425 S.W.2d 799;Brown v. State, Tenn.Cr.App., 441 S.W.2d 485.

The rule that the credibility of the witnesses and conflicts in the testimony are all settled by the verdict of the jury, '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, 28, 281 S.W.2d 692, 694;Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

In a program of extra-surveillance of business establishments regarded as being peculiarly attrative to robbers, following a rash of such incidents, the Memphis Police Department stationed two policemen in Walter J. Phelan's Minit-Stop grocery store in Memphis on the night o July 7, 1967.The officers concealed themselves in the rear of the store.Between 10:30 and 11:00 o'clock, two young Negro men entered the store.One of them remained near the front.The other man went further into the store, approached the cash register through a check-out aisle while Mr. Phelan had the register open concluding a transaction with a customer, and then pulled a .22 caliber revolver and ordered Phelan to leave the register open--threatening to kill him if he moved--and took $325 in currency and four checks totaling $76.In response to this robber's inquiry, Phelan told him that the safe was in the rear of the store.With the gun at his back, both robbers began escorting him in that direction.Knowing that the officers would intervene momentarily, Phelan dropped to the floor as they approached the officers' hiding place.When one of the officers raised up and challenged them, the robbers fled, one of them running through the front glass door and the other following.The .22 caliber Harrington and Richardson revolver was dropped just outside the door.Glued to it was a short strip of stencil tape bearing the impressed letters HAW.It was admitted in evidence.

Dripping blood marked the path of the robbers' successful flight for some distance.After the bandits made good their escape, one of the officers saw a red Mustang automobile in the street nearby and questioned the driver briefly but did not detain him.Shortly before the robbery an employee of a funeral home located across the street observed a red Mustang in noticeable maneuvers in an adjoining side street--it paused, backed up into the funeral home parking lot where its lights were turned off briefly and then moved on and returned to the same area about the time the robbers ran from the store.

Police Officers Burkhalter and Paris, having arrived at the scene to assist in the investigation, after following the blood stains as far as possible, came upon a red Mustang automobile occupied by the defendant and parked near the Lester High School grounds.As they approached he turned his lights on and off and started and stopped a couple of times.Having information that a red Mustang had been seen in the vicinity of the robbery, the officers stopped the car and asked the defendant what he was doing in the neighborhood.He replied that earlier in the evening he and his girl friend had been swinging on the swings on the high school grounds, and that he had taken her home and was enroute to his home and had stopped there to answer a call of nature.On the Mustang's right door handle was fresh blood--'so fresh that it was dripping,' and a few blood spots were seen on the inside of the car door.The officers arrested the defendant, advised him fully concerning his constitutional rights in keeping with the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and took him to police headquarters.He made no statements except that he wanted to confer with his attorney.

On July 11th, acting on a tip, two police officers went to a vacant house in the 1500 block of Hugenot Street in Memphis, located only a few doors from the defendant's home, where they found bloody clothing and four checks later identified by Mr. Phelan (and admitted in evidence) as having been taken in the robbery.No defense objection was interposed to admission of the revolver or the checks.

The co-defendants Henry and Morris testified as witnesses for the State.They testified that the defendant planned the robbery, gave Morris his .22 caliber revolver, and parked his red Mustang automobile nearby to wait for them, and that they went to the Minit-Stop grocery store...