Letner v. State

• Decision Date: 01 February 1974
• Parties: Maurice LETNER and David Letner, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 643

512 S.W.2d 643

Maurice LETNER and David Letner, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Feb. 1, 1974 Certiorari Denied by Supreme Court May 20, 1974.

Monte D. Curry, Asst. Public Defender, for Maurice Letner.

Dan Garfinkle, Nashville, for David Letner.

David M. Pack, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Michael D. Noel, Asst. Dist. Atty. Gen., Nashville, for defendant in error.

OPINION

OLIVER, Judge.

Jointly indicted with Jerry W. Johnson and Arthur Campbell for the alleged first degree murder of Wilbur A. Thompson, after being granted a severance brothers Maurice Letner and David Letner were convicted of second degree murder. David was sentenced to imprisonment in the State Penitentiary for 10 years and Maurice for not less than 10 nor more than 20 years. They have brought their case to this Court for review by their appeal in the nature of a writ of error duly perfected.

David Letner's only Assignment of Error here and Maurice Letner's first two Assignments raise the usual challenge to the sufficiency of the evidence to warrant and sustain the verdict of the jury, Maurice insisting specifically that his conviction rests entirely upon the uncorroborated testimony of accomplices.

We summarize the material evidence. Alton Sykes testified that about 2:15 a.m. October 7, 1972, he and Rocky Willis came upon a Chevelle and a Rambler parked alongside each other; that to his left he saw the deceased, Wilbur Thompson, walking on the sidewalk; that three persons simultaneously emerged from the parked cars; that one of them slapped Thompson, who threw up his hands, and the other one shot him with a shotgun; that the men got back into the cars and drove away; that the defendants were the men who attacked the deceased, but he was uncertain as to which one did the shooting; that he heard no words exchanged; that he did not see a mustache on anyone; that he was too dumbfounded to observe the license number on the vehicles; that he was not certain as to the color of the men's clothing or their heights; that the area was well lighted; and that he later looked at pictures including those of the defendants.

Rocky Willis testified that as he and Sykes were riding, he saw the deceased walking down the street; that the driver of a Rambler automobile, which had stopped in front of them, got out, walked up to the deceased and slapped him; that he heard a shot; that looking around, he saw a man with a shotgun and a Chevelle beside the Rambler, but did not see it pull up; that the man with the gun got into the driver's seat of the Chevelle and the other man got back into the Rambler, and the two cars left; that he did not see the deceased with any weapons; that the deceased backed up as the men approached; that he did not remember anyone having a mustache; that he saw two persons in each car; that he did not recall how anyone was dressed, and he was sleepy at the time.

Co-defendant Arthur Campbell, who has been convicted of petit larceny, attempt to commit a felony, and felonious use of an automobile, testified that sometime after 1:30 a.m. David Letner drove him in his own Rambler to east Nashville; that they passed Jerry Johnson, Larry Tilson and Maurice Letner parked in a Chevelle, talking to Florence Dillard, and waved; that after turning onto Seventh Street, they saw the deceased on Letner's side of the car; that Letner yelled, 'Get home, Nigger'; that the deceased, coming toward the car, said, 'What did you say?'; that Letner repeated himself and got out of the car; that he also got out and stood beside the car; that Letner slapped the deceased, who made no advance toward Letner other than walking toward him; that after the deceased was struck, he saw what he thought was a knife in the deceased's hand; that the two men then began backing away from each other and he heard someone say, 'Back off, Nigger' and the deceased turned; that he heard a shot and turning around saw Maurice Letner, who had pulled up, standing there with a shotgun; that they jumped into the car and subsequently went to his brother's house where Maurice Letner put the shotgun in a hall closet; that as he and David Letner got back into the car, David said, 'Maurice killed that Nigger'; that the next day, David Letner showed him a knife, told him that he had tried to use it on the deceased but said, 'Well, there ain't no blood on it, I didn't cut him'; that he, the Letners, Johnson and the defendants' girl friends subsequently fled the State and made up stories concerning the incident, such as that there was a group of Negroes instead of one, and Tilson got a gun and shot one of them; that after his return to Tennessee, he made a statement to the police and as a result, on Christmas night, David struck him in the head with a bottle and cut his face and tried to stab him in the chest and stomach and he was beaten by David's father and brother Gene.

Larry Tilson, who has been convicted of grand larceny, testified that he met Maurice Letner and Jerry Johnson at the Opportunity House, a half-way house for parolees; that about 1:05 a.m. they began riding around, stopping at a girl's house; that they next went to the Shelby area and stopped; that Maurice looked out the window and said, 'My brother is in a fight and I'm going to help him'; that it appeared that the deceased, David Letner and Arthur Campbell were scuffling; that Maurice Letner jumped out of the car with a 410 gauge shotgun, pulled the trigger, jumped back into the car and said, 'I think I got him'; that David Letner threatened to kill him if he told about the shooting and hit him either with his fist or a beer can, rendering him unconscious.

Thompson died of a shotgun wound in the chest. No weapons were found at the scene of the shooting.

Co-defendant Jerry Johnson, a defense witness, testified that as he and Maurice Letner passed the half-way house, Tilson, who was almost drunk, rode up in a cab and yelled at Maurice, inquiring if he knew where he could sell a gun; that Maurice replied that he did not know; that Tilson went up the steps to the house, came back with a shotgun and got into the back seat of the car; that after failing to sell the shotgun, they went to Florence Dillard's house; that they went to Seventh Street where they saw the deceased holding a knife and forcing David Letner to back up; that he and Maurice Letner got out of the car, and Maurice told the deceased to drop the knife; that the deceased began cursing Maurice and started toward him; that Tilson got out of the car and shot the deceased; that later that night Tilson and David Letner got into a fight after Tilson started bragging that he could not be whipped; that he, Campbell, the Letners and their girl friends fled the State; that as they were crossing the State line, Campbell hollered, 'I killed a colored guy, come and get me Tennessee'; and that at the time of the shooting Maurice Letner was wearing a goatee.

Maurice Letner, who has previously been convicted of petit larceny, attempt to commit a felony and felonious use of an automobile, testifying as a witness in his own behalf said that he and Johnson were going down Eighth Street when they saw Tilson getting out of a cab; that Tilson, who was almost drunk, called to him and said he wanted to sell a shotgun; that after attempting to sell the gun, they went to Florence Dillard's house; that while there he saw Campbell's car go by, but did not realize his brother was in it; that he and Johnson then drove on to Seventh Street; that they saw Campbell's car parked on the street and his brother backing away from a man swinging a knife; that he and Johnson got out of the car and told the man to put the knife away; that the man began cursing and came at him with a knife; that Tilson got out of the car with the shotgun and shot the man; that everyone got back into the cars, and he followed Campbell to his brother's house where he gave the gun to Campbell, who put it somewhere; that he went back outside and saw his brother and Tilson down the street and Tilson's nose was bleeding; that he took Johnson and Tilson, who had passed out from drinking, home; that he learned later that his brother and Campbell got into a fight when Campbell came to his house and began cursing in front of his brothers and sisters and tried to make Gayla Redfern take him home; that he did not tell the police his side of the story because he was afraid they would shoot him; that Campbell told him that he was the one who hollered at the deceased; that he could not recall if he wrote a letter to Florence Dillard, stating that he was going to testify and say that he did the shooting in order to get his brother off; and that at the time of the shooting, he had a mustache and a goatee.

Florence Dillard, Maurice Letner's former girl friend, testified for the defense that Johnson, Tilson, and Maurice drove up to her house; that a shotgun was in the car, between Tilson's legs; that 10 to 15 minutes later Campbell and David Lenter passed and about five munutes later maurice Letner left to catch up with his brother; that she subsequently fled the State with the defendants and that as they crossed the State line Campbell hollered, 'I killed a black guy' and boasted that he was free; that at first...