Monts v. State

• Decision Date: 05 March 1964
• Citation: 214 Tenn. 171,379 S.W.2d 34,18 McCanless 171
• Parties: , 214 Tenn. 171 Henry Clay MONTS and Johnnie West v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 34

379 S.W.2d 34

18 McCanless 171, 214 Tenn. 171

Henry Clay MONTS and Johnnie West v. STATE of Tennessee.

Supreme Court of Tennessee.

March 5, 1964.

Rehearing Denied May 8, 1964.

On Second Petition for Rehearing June 4, 1964.

Marvin B. Gambill, Memphis, for Monts.

Hugh Stanton, Public Defender, Memphis, for West.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

Plaintiffs in error, Henry Monts and Johnnie West, along with one Joel Olds were indicted and convicted of murder in the perpetration of a burglary (§ 39-2402, T.C.A.). Olds was sentenced to 99 years in the State penitentiary. Punishment for Monts and West was fixed by the jury at death by electrocution. Olds did not appeal.

Shortly before 1:00 o'clock on the morning of October 7, 1960, Patrolman Frank Bruno, Jr., was shot and killed while investigating a reported noise at the Ace Sundry Store in Memphis. There were no eyewitnesses to the slaying. However, a subsequent investigation disclosed that the store had been burglarized. Apparently, Bruno was shot when he surprised the burglar or burglars in or about the store. At the time Bruno was shot, his partner, Patroman Pierini, was parked in the street to the side of the store. He did not witness the events that took place in front of the store; but immediately after the shot that apparently caused the death of Bruno rang out, he observed and shot at a human figure running away from the front of the store. Because of the darkness, the figure could not be identified. No fingerprints of value were recovered at the store.

In September, 1962, almost two years after Bruno's death, Olds, Monts and West were arrested and charged with the patrolman's murder. At the conclusion of their joint trial, the jury found each of them guilty and sentenced them as outlined above.

The trial of this case lasted 11 days and built a record of over eighteen hundred pages. We do not deem it necessary to detail or summarize all of the evidence connecting these defendants with Bruno's murder; only so much of it as is essential to a full understanding of our treatment of the various assignments of error will be presented. The assignments urged in behalf of Monts will be treated first.

At the defendants' trial, a typed confession signed by the defendant, Monts, was introduced and admitted into evidence. In his confession, Monts admitted into participating in the burglary of the Ace Sundry Store, but denied that he fired the shot that killed Bruno. He stated that Olds and he acted as lookouts while West entered the store. (Olds' confession stated that Monts was the one who went into the store.) He further stated that Olds and he left the scene when they heard a loud noise around the front of the store. Other evidence at the trial showed that the burglar or burglars gained admittance to the store by breaking out the glass in the front door. Apparently, this was the noise referred to in the confession.

The defendant, Monts, contends that the trial court erred in admitting his confession on the ground that it was not freely and voluntarily given. He further submits that in the absence of the confession, the circumstantial evidence against him preponderates against the jury's verdict and in favor of his innocence.

When the State attempted to introduce Monts' confession, the jury was excused; and in their absence, the court conducted a preliminary examination to determine whether the confession was admissible. Counsel for the defendant, Monts, attempted to show that the confession was not freely and voluntarily given for two reasons. First, because shortly before making the confession, Monts was told by a police officer that his eighteen year old son had been killed in an automobile accident three or four days prior thereto. Monts testified that this was the first he knew of his son's death. Captain Swann of the Memphis police department admitted that this information was given to the defendant, but, of course, he could not say whether or not Monts had heard of it before then. He did testify that Monts appeared to be disturbed by the news; but that when asked if he was too disturbed to give a statement, he answered in the negative. Monts denied on the stand that he had anything to do with the burglary of the Ace Sundry Store or the murder of Bruno; but he did admit giving a confession and identified the signature on the confession handed him at the preliminary examination as his own. His reason for giving the 'false' confession was that he wanted to be by himself in his grief. He said that the 'false' story he told in the confession was suggested to him by the recording of Olds' confession which was admittedly played for Monts before he gave his own confession and by statements about the case made by the police officers present.

In addition counsel for Monts points to the fact that Monts had been without sleep for over 24 hours when he gave the confession. Monts was picked up in Chicago, Illinois, at approximately 11:45 on the night of September 25, 1962. He was returned to Memphis by plane on the 26th, arriving there at approximately 9:00 P.M. After some preliminary discussion, Monts indicated his willingness to give a confession and he commenced to do so at approximately 12:45 A.M. on the 27th. The confession was finished around 2:00 or 3:00 A.M., at which time he was taken to a cell. Monts testified that he had been unable to sleep while in the custody of the Chicago police on the morning of the 26th because he was continually being processed during this period. There was no other testimony concerning the period of time the defendant was in the custody of the Chicago police.

Captain Swann, who was in charge of questioning Monts, testified that no promises or threats were made to Monts in order to induce him to confess. In this, he was substantiated by Monts himself, who testified that all of the police officers who dealt with him during this period were nice to him. Monts also stated that he had been asked if he wanted something to eat when he arrived at the Memphis police station and that the police had given him doughnuts and coffee during the period of questioning that followed. Monts testified that the police intimated that he couldn't see his son's grave until he gave a statement; but there is no corroboration of this in the record and Captain Swann denied making or hearing such a statement. Monts admitted that the typed confession was given to him for his approval before he signed it, but stated that he merely glanced over it, being preoccupied at the time with the news of his son's death and totally unconcerned with the confession or its contents.

After hearing evidence on this preliminary examination, the trial court ruled that the confession was admissible. The jury was returned to the courtroom whereupon the confession was read to them. They were told by the court that the confession was only admissible as to the defendant, Monts, and that they were not to consider it for any purpose as to the other two defendants who were not present when it was made.

Unless the evidence heard at the preliminary examination preponderates against the court's finding that the confession was freely and voluntarily given, we cannot say that the court erred in admitting it into evidence. Taylor v. State, 191 Tenn. 670, 235 S.W.2d 818 (1950). We cannot find such a preponderance. While it was uncontroverted that the defendant Monts had been without sleep for some 24 hours when he gave this confession, this does not, of and by itself, render the confession involuntary and thus inadmissible. There is no suggestion that the police prevented the defendant from sleeping during the whole of this period. On the contrary, it is undisputed that the defendant was enroute to Memphis from Chicago for six or seven hours and that no questioning or harassment was going on during this period. Also there is no suggestion of police brutality or threat of any physical violence at any time during the period the defendant was in custody. And even if the police were the first to tell the defendant of his son's death, we do not see how this, standing alone, would affect the voluntary character of the confession. While we can appreciate how such news must have shocked and grieved Monts, it does not follow from this that the confession he gave shortly after learning of his son's death was not a free and voluntary act on his part. We are not impressed with the defendant's testimony that he implicated himself in the murder of Patrolman Bruno so that he could be by himself to grieve over the loss of his son. The trial judge obviously did not believe this and we can hardly blame him. It goes without saying that it is difficult to believe that a person would implicate himself in a murder with which he had nothing to do merely to be by himself to grieve over the loss of his son.

Since we hold that the trial court was not in error in admitting the confession into evidence, it is clear that the jury had before it ample evidence upon which they might find the defendant, Monts, guilty beyond a reasonable doubt. In any event, we cannot say that the evidence preponderates against the verdict and in favor of the innocence of the accused and this is what we must find in order to reverse a criminal case on its facts. Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909); Essary v. State, 210 Tenn. 220, 357 S.W.2d 342 (1962).

After Monts' confession was read to the jury, his counsel requested that the jury be permitted to observe a demonstration of the machine upon which the defendant's confession was originally recorded. The court denied this request and it is now submitted that this denial constitutes reversible error.

In making this request, the defendant, Monts, was apparently trying to show that the machine was susceptible to manipulation in order to add credence to his testimony...