McKenzie v. State

• Decision Date: 02 September 1970
• Parties: Oree McKENZIE, III, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 243

462 S.W.2d 243

3 Tenn.Crim.App. 362

Oree McKENZIE, III, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Sept. 2, 1970 Certiorari Denied by Supreme Court Jan. 4, 1971.

Phillip E. Kuhn, Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Jewett H. Miller, and Arthur T. Bennett, Asst. Dist. Attys. Gen., Memphis, for defendant in error.

GALBREATH, Judge.

OPINION

The plaintiff in error appeals his conviction for assault with intent to commit first degree murder for which he was sentenced to serve not more than ten years by the Shelby County Criminal Court.

Assignments of error are based on complaints that:

(1) The evidence was insufficient to sustain the conviction;

(2) The State was not compelled to furnish a copy of a statement obtained from a co-defendant who testified for the prosecution;

(3) Proof that the defendant was associated with a black militant organization was admitted for the purpose of prejudicing the jury;

(4) A severance and separate trial was not ordered;

(5) Proof of a prior felony and a prior misdemeanor conviction was elicited on cross examination of the defendant; and

(6) Argument of counsel for the State was improper and prejudicial.

The only allegations in the motion for a new trial complained of the insufficiency of the evidence and the failure of the trial judge to instruct the jury to disregard certain unspecified 'unconnected evidence,' which we assume referred to the proof of ofter convictions summarized above as the fifth ground relief on for reversal.

The proof before the jury, including the testimony of an accomplice strongly corroborated by a number of other witnesses, justifies the jury in finding:

That the defendant, together with Ben Heard Berry, principal witness for the State, John Gary Williams, and Womax Stevenson, following a confrontation between Memphis police and a crowd of black residents during an arrest of a young Negro man, armed themselves and hid behind an embankment facing an isolated street;

That one or more of them persuaded a young girl, Gloria Goodman, to call the Memphis police and report a disturbance near the point where they lay in ambush; and

That when the police car arrived on the scene it was fired upon from ambush and one of its occupants, Patrolman Robert J. Waddell, was shot in the leg.

The only real dispute from the numerous witnesses who testified against the defendant McKenzie was in the importance of the role played by him in the overall planning and execution of the ambush assault--some testimony being to the effect that the State's witness Berry was the leader or instigator, other testimony to the effect that McKenzie was the more dominant. In either event the proof certainly supports the verdict of the jury that McKenzie committed the crime of assault with intent to commit murder. It would seem to have been enough to support the crime of assault from ambush charged in the first count of the indictment, which may be punished by confinement for life or any term not less than ten years. He was acquitted of the higher felony, however, as were his co-defendants. Womax Stevenson also was found guilty of assault with intent to commit murder, and John Gary Williams was sentenced to not more than two years for assault with intent to commit manslaughter. Stevenson made no appeal, and Williams abandoned his and asked to commence serving his sentence. The assignment challenging the proof is overruled. So are all the others.

Even though most of the other matters complained of were not called to the attention of the trial jduge for corrective action on motion for a new trial, and we are not required to consider them (Rule 14(5) and numerous decisions such as Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780), we will discuss the other legal reasons why the other assignments must be rejected.

There is no compulsion under T.C.A. § 40--2044 for the State to make available statements its agents obtain in the course of criminal investigations from co-defendants. On the contrary, the statute does not apply to '* * * any work product of any law enforcement officer or attorney for the state or his agent or to any oral or written statement given to any such officer * * * by any witness * * * other than the defendant.' The contention of the plaintiff in error to the contrary is rejected.

It would have been difficult to have tried this case without reference to an organization referred to by both State and defense witnesses as the 'Invaders.' The defendant freely discussed his association and separation from this group while being examined by his attorney. There is nothing suggested from the record to indicate that the jury was prejudiced by the suggestion that the crime committed was part of a plan formulated by members of the organization. The assignment complaining of such testimony is overruled.

Inasmuch as the record does not indicate that the defendant McKenzie ever moved for a severance, it is difficult to understand how the trial judge could be put in error for not ordering his trial to be separated from those co-defendants other than Berry, whose trial was severed since he was to be a witness for the State. This assignment is also overruled.

Error was committed by the trial court and all concerned in allowing the defendant to be cross examined concerning prior convictions not involving moral turpitude. After prolonged discussion as to whether or not counsel for the State could inquire of the witness if he had been convicted of inciting to riot, a felony, while an appeal from this conviction was pending, the court ruled on the basis of the holding in McGee v. State, 206 Tenn. 230, 332 S.W.2d 507, that such testimony is admissible for impeachment purposes only. The defense offered to stipulate that the defendant had indeed been convicted of inciting to riot and offered no objection when counsel for the state inquired about a misdemeanor conviction for inciting children of 18 and under to leave school.

"(1) The rule with regard to the admission of evidence of other offenses on a criminal trial is well stated to be: 'Evidence material to the issue under investigation in a criminal case is never rendered incompetent because it tends to show that the accused has committed other crimes. It is competent or incompetent according to whether it is relevant to the issue on trial and has probative value. If incompetent by that test, its tendency to show guilt of another offense may cause it to be prejudicial to the accused and therefore ground...