Herron v. State

• Decision Date: 05 March 1970
• Citation: 3 Tenn.Crim.App. 39,456 S.W.2d 873
• Parties: Ernest Lee HERRON, also known as Ernest Lee Herron, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 873

456 S.W.2d 873

3 Tenn.Crim.App. 39

Ernest Lee HERRON, also known as Ernest Lee Herron, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

March 5, 1970.

Certiorari Denied by Supreme Court July 6, 1970.

Marvin B. Gambill, Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., Leonard T. Lafferty, Jewett H. Miller, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

OPINION

RUSSELL, Judge.

The Plaintiff-in-Error, Ernest Lee Herron, hereinafter called the defendant, was tried and convicted of murder in the first degree and sentenced to death by electrocution. He has properly perfected an appeal in the nature of a writ of error to this court and we have the case for decision. Defendant was represented by employed counsel upon the trial and is so represented upon this appeal. Several assignments of error are urged upon this court.

Upon the selection of a jury of twelve, and one alternate, the court had all thirteen take the oath together. It was then called to the court's attention that our law calls for the alternate juror to be sworn separately. The judge then ordered the jury sworn again, with the twelve sworn first and then the oath was administered to the alternate. Counsel for the defendant objected to this procedure, and moved 'for a mistrial until the next term of court'. The motion was overruled. The jury was respited for the night without any proof having been taken. On the following morning, the court asked defendant's lawyer if he renewed his 'motion for a mistrial' at that time, and received an affirmative response. The prosecuting attorney announced that the state would join in the motion. Then followed:

'Mr. Gambill (defendant's attorney); 'To the next term of court, if the court please.'

'The Court: 'This motion--we will take these motions up separately--the motion for a mistrial is granted."

The court entered a mistrial, discharged the jury, and overruled the motion for a continuance. A new jury was empaneled and the trial proceeded. The first assignment of error which we must adjudicate is whether it was error to require the defendant to again go to trial on the same day as a mistrial was declared. The thrust of the defendant's contention is that he should have had a continuance because (1) his motion was a motion for a mistrial to the next term of court, and (2) under his theory, T.C.A. § 40--2006 and T.C.A. § 40--2515 preclude a retrial on the same date as a declaration of a mistrial.

We do not think that the cited statutes support defendant's position. T.C.A. § 40--2006 provides for at least three days between the arrest and return of the indictment and the commencement of the trial in capital cases. That period of time in this case was approximately nine months. The other statute relied upon, T.C.A. § 40--2515, provides that where a jury is legally discharged the case may again be tried at the same or another term of court. There is nothing either express or implied in this statute which would preclude a retrial on the same day, absent a showing of prejudice.

The defendant's motion 'for a mistrial to the next term of court' is unknown to our procedure. It seeks to combine a motion for a mistrial with a motion for a continuance, and it is now urged that such a welding required a single uniform action. We cannot agree. Our law recognizes a motion for a mistrial, and has rules by which the merits of such a motion may be judged; and likewise we are equipped with rules of law applicable to continuances; and there is no necessary or usual relation between the two. Therefore, we feel that the trial judge did the only logical thing; that is, he considered each part of the motion in turn by applying the law applicable thereto, granting the motion for a mistrial and denying the motion for a continuance. For this action to have been error, the denial of a continuance would have had to have been an abuse of the trial judge's discretion. Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563; Bass v. State, 191 Tenn. 259, 231 S.W.2d 707; Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357. We find no such abuse. This trial date was, in fact, selected by defendant's counsel under most generous license of the trial judge at the time of the granting to defendant of a continuance previously. Absolutely nothing in this record hints of prejudice to the defendant from this denial of his motion for a continuance, and the assignment is overruled.

The next alleged error has to do with the jury selection process. It is alleged that it was error for the trial judge to excuse for cause prospective jurors who stated, in reply to allegedly improper leading questions, that they would not consider the death penalty. The court allegedly erred in announcing that the court would sustain, and in sustaining, all challenges for cause based on refusals to consider death as punishment regardless of the framing of questions on voir dire, resulting in the state exceeding its allowable peremptory challenges (it being alleged that there were 22 such challenges for cause).

Only a small part of the voir dire examination is contained in the bill of exceptions, and there is no record as to how many challenges for cause were granted. We have the interrogation of five prospective jurors, who answered substantially the following question in the affirmative and were not challenged:

'If you are selected as a juror in this case, and should you find the defendant guilty beyond a reasonable doubt and to a moral certainty of murder in the first degree or in the perpetration of a robbery, and there are no mitigating circumstances, would you consider death as punishment in such a case?'

The next juror, Mr. Edwards, responded in the negative. He was then asked:

'I take it from your answer, Mr. Edwards, then, that you will not follow the law in this state as given you by His Honor, Judge Colton, and consider death as punishment under such instructions? Is that right?

His affirmative response brought a challenge for cause, but before it was ruled upon, defendant's counsel interposed an objection, contending (1) that the answer did not give rise to a valid ground for challenge for cause in view of Witherspoon (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776), and (2) the question was leading. A long legal argument followed, at the close of which defendant's counsel moved that the questions be excluded, his motion was overruled, and then defendant's counsel said:

'I want to renew my same motion on each one that he challenges for cause, if the court please, based on the way he's framing his questions to these jurors.'

'The Court: Then you may approach the bench on each--

'Mr. Miller: If Your Honor please, I think that this one objection, that it can be a continuing objection and so noted by the court at this time.

'The Court: That will cover all objections. It will be understood that is the ruling of the court.

'Mr. Gambill; Each one he challenges for cause.

'The Court: And you may note your exception.

'Mr. Gambill: Very well, Your Honor.

'The Court: As to each one.'

This is all that our record has relative to the voir dire proceedings. We do not know how many other prospective jurors were challenged for cause. We cannot pass upon the allegation of error that the trial judge sustained all challenges for cause regardless of the framing of the questions. We are required to presume that the proceedings were regular where that portion of the record complained of is not preserved in the bill of exceptions. James v. State, 215 Tenn. 221, 385 S.W.2d 86. This oversight does not involve state action, since the bill of exceptions was approved by retained counsel.

We do have the questions asked prospective juror Edwards and his answers thereto, and may therefore examine them in the context of the rules of Witherspoon. The specific holding of that case is that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Witherspoon allows the prosecution to challenge for cause those prospective jurors who state that they would Automatically vote against the death penalty (in addition to those who state that their views on the death penalty would influence their determination of guilt).

We feel that the questions objected to here were framed in a sincere effort to comply with Witherspoon and ascertain the identity of those prospective jurors who would Automatically vote against the imposition of the death penalty. Challenges for cause directed at such prospective jurors were properly sustained.

We now consider the question of the admissibility into evidence of the fruits of a search of defendant's residence.

The victim of the robbery-murder was Arthur B. Lanier, a neighborhood druggist, who was robbed and beaten to death while keeping shop alone on the evening of December 30, 1967. The police investigation developed that the defendant's name appeared several times in the store's notebook wherein was recorded sales of non-prescription controlled drugs. The police determined that he should be questioned about the other names in the book. During questioning, it was noted that the defendant had some scratches on his right hand. He explained that these injuries were received at work and gave the names of co-workers who he said would so verify. The defendant lived relatively near the drug store where the crime was committed, and fitted the general description given by a witness of a man seen leaving the store shortly before the crime was discovered. In his initial questioning, he related an alibi wherein he was at the home of one Willie Gordon until 10:00 p.m.; and denied...