Hill v. State

• Decision Date: 16 June 1971
• Citation: 470 S.W.2d 853,4 Tenn.Crim.App. 325
• Parties: Calvin Earl HILL, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 853

470 S.W.2d 853

4 Tenn.Crim.App. 325

Calvin Earl HILL, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

June 16, 1971.

Certiorari Denied by Supreme Court Sept. 7, 1971.

J. Fred Friedman, Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., Ewell C. Richardson and Harvey L. Herrin, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

OPINION

MITCHELL, Judge.

Calvin Earl Hill, who will be referred to as the defendant or by name, was on November 18, 1969 indicted by the Grand Jury of Shelby County, Tennessee, jointly with Carl Preston Scruggs and Rufus D. Rhines on a charge of robbery by the use of a deadly weapon of James M. Williams of $276.00 in money of the United States on November 5, 1969.

On November 26, 1969 the trial court found the defendant was unable to employ counsel and appointed the Public Defender to represent him.

On February 24, 1971 the court allowed the Public Defender to withdraw as counsel and recorded Honorable J. Fred Friedman as counsel for the defendant.

On March 3 and 4, 1970 the defendant Calvin Earl Hill was tried in the Criminal Court of Shelby County which resulted in a conviction of robbery and the jury fixed the punishment at not more than six (6) years in the penitentiary upon which the trial judge Honorable Odell Horton pronounced judgment.

After the motion for a new trial was heard and overruled the defendant appealed and assigned errors.

According to the testimony of the victim James M. Williams age 23, he was on November 5, 1969 at his place of employment at the Minute Stop Grocery, 1620 Getwell, in Memphis. At about 7:00 P.M., he was alone and in charge of the store when the co-defendants, Carl Preston Scruggs and Rufus D. Rhines, armed with a pistol robbed him of $276.00 belonging to his employer the store owner. They required him to put the money in a paper bag and left the store carrying the money and three cans of beer for which they had not paid. Included in the money which the robbers took from Mr. Williams was a package of 25 one dollar bills bound with a money wrapper from the bank with the day manager's initials 'A.C.' on it.

The robbers as they left the store, got into a '62 or '63 model Buick 4 door car, white in color driven by the defendant Calvin Earl Hill and drove away. The victim then notified the police and gave a description of the robbers and the car.

By excellent police work, in a matter of minutes the alert officers located the car and the robbers, arrested them and found in the car a .38 caliber revolver fully loaded and the stolen money, some of it in the car and some in the pockets of the defendants. The driver Calvin Hill denied any knowledge of the robbery and told the officers he had stopped the car at or near the grocery store to allow his co-defendants to get beer. That the money found in his pockets was from Workman's Compensation checks he had cashed.

Prior to the trial of Calvin Earl Hill an agreement was reached between all of the defendants and the state that upon their plea of guilty the three of them would accept a sentence of ten years for armed robbery. After Scruggs and Rhines pleaded guilty and were sentenced, the defendant Hill, who had asked for a severance, withdrew his petition to be allowed to plead guilty and then entered a plea of not guilty.

According to the testimony of Lt. J. D. Moore, 16 years with the Memphis Police Department, he was in his police car on Lamar Avenue about 7:00 P.M., November 5, 1969, when he received a broadcast of a hold-up at 1620 S. Getwell. The broadcast gave a description of the robbers and the car in which they were traveling. He proceeded out Lamar to Getwell, he spotted the white Buick and three occupants. The car and two of the occupants fit the description he had been given. He followed them. The streets were well lighted and with his head lights he could see that the clothing worn by two of the men was as had been described to him. He put on his blue light and stopped the Buick. He saw the man in the middle in the brown suit roll over like he was putting something under the seat. The man on the right did the same.

This officer asked the defendant Hill, who was driving the Buick car to come back to the police car which he did. He asked Hill if he knew the people in the car and he said he did not know them that he picked them up off the street. The three men in the Buick were placed under arrest. The officer could see some money sticking out between the lower portion of the seat and the hump over the transmission. It came to $70.00 and under the seat he found a .38 caliber revolver fully loaded. Money in the amount of $137.00 was taken from Scruggs, $25.00 out of his shirt pocket and $112.00 from his right jacket pocket. $41.00 was found in Hill's front pocket, and $70.00 taken from under the seat of the car where Mr. Rhines the middle man was sitting.

These men, after their arrest were warned of their rights. Rhines and Scruggs said they knew Mr. Hill, that they got in the car at Poplar and Fourth at Young's cafe.

The defendant Hill had $70.96 in his billfold when he was thoroughly searched at the Police Station.

Tommy Marvin Davis, who was employed by the Memphis Police Department at the police parking lot found a money wrapper under the floor mat in the defendant's car at the police parking lot. This paper wrapper is exhibit 3 to the State's proof, it had $25.00 written on it and the initials A.C.

When the State closed its case in chief the defendant Hill moved for a directed verdict of not guilty which was overruled.

The defendant, Calvin E. Hill testified in his own behalf that he had been living at Ridgely, Tennessee and that he was a heavy equipment operator. That he was not employed at the time of the arrest in this case. His last employment had been with the Hank Hammer Excavating Company, Topeka, Kansas and he was injured June 4 and presently drawing temporary compensation of $49.00 per week. That his checks were being sent to him at his sister's address in Memphis. He said he had been convicted of passing bad checks and forgery about 5 years ago. That he had come to Memphis to pick up his checks at his sister's house. That on November 5, 1969 he had visited the cafes and drank beer at the different places and he had a pint of whiskey. That he hadn't really been acquainted with Rufus D. Rhines but he had seen him around Young's cafe, but did not know his name. That he had never seen Carl Preston Scruggs prior to November 5, 1969. That he and Roy Tidwell were sitting at a booth in the cafe when Rhines and Scruggs got out of a taxi in front of the cafe and came in. That Rhines asked him if he would take them out on Lamar to get a tire. He took Rhines and Scruggs into his car. They directed him where to go. They turned left on Getwell when one or the other of them suggested they stop and get a beer. He stopped the car near Minute Stop Drive-In Grocery Store on Getwell Avenue. That he did not know anything about a scheme or plan to commit robbery nor did he know that Scruggs had a pistol. That his car was about 20 or 30 feet from the door of the grocery store. Rhines and Scruggs got out and went in the store and he sat in the car. That he didn't pay any attention to how long they were gone. When they came back and got in the car they had 3 cans of Busch beer. He did not see anything else. They then started supposedly going to see about the tire and traveled about a mile and stopped. Rhines went up to the door of the place and came back and said there was no one home. That he became suspicious then, that perhaps they planned to rob him. He then drove back by the Minute Stop Grocery Store for the purpose of returning them to the place from which they had started. As they were driving along the street, the police car stopped them and they were placed under arrest. That he did not see the pistol or the money until the police found them in the car.

The defendant Hill testified on cross-examination over objection by his counsel that he did execute a written petition addressed to the court asking that he be allowed to waive a jury trial and plead guilty of armed robbery and accept a sentence of 10 years in the penitentiary. That he signed the petition and that it was signed by his lawyer and by the assistant District Attorney General. The defendant's petition for waiver of jury trial and plea of guilty and waiver of appeal contained averments that his attorney had advised him of the charges against him and possible defenses and of the punishment in the event the trial court accepted the plea of guilty. That this petition averred it was executed without any pressure from any source and that he was fully aware of the action he was taking. On re-direct examination the defendant Hill explained that he executed this petition because his co-defendants Rhines and Scruggs pled guilty and had an agreement that their sentences would be 10 years in the penitentiary, and that they could not get that kind of disposition of their case unless the defendant Hill also pled guilty and accepted a sentence of 10 years. He testified further that Rhines and Scruggs threatened him with violence indicating that he would not live to serve the sentence or get out of the penitentiary unless he joined with them in pleading guilty. The defendant Hill testified that he told the police officer that he was innocent, that he did not know anything about the robbery, that he did not see any of the money until the officers found it after the arrest. That the money he had on his person was the proceeds of his temporary compensation checks which he had received and cashed. The defendant Hill testified that he told the trial court he was not guilty and did not wish to plead guilty. That he requested a separate trial. He testified that in...