O'Neil v. State

• Decision Date: 13 March 1970
• Citation: 455 S.W.2d 597,2 Tenn.Crim.App. 518
• Parties: Gary Rowe O'NEIL, Bobby Eugene Fisher and Roger Ward Rathbone, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 597

455 S.W.2d 597

2 Tenn.Crim.App. 518

Gary Rowe O'NEIL, Bobby Eugene Fisher and Roger Ward Rathbone, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

March 13, 1970.

Certiorari Denied by Supreme Court June 1, 1970.

James E. Beckner, Donald B. Oakley, Joseph L. Reed, Morristown, for plaintiffs in error.

David M. Pack, Atty. Gen., Arnold Peebles, Jr., Asst. Atty. Gen., Nashville, Heiskell H. Winstead, Dist. Atty. Gen., Rogersville, Charles E. Fraley, Asst. Dist. Atty. Gen., Church Hill, for defendant in error.

OPINION

DWYER, Judge.

A jury in the Criminal Court of Hamblen County convicted Gary Rowe O'Neil, Bobby Eugene Fisher and Roger Ward Rathbone of committing the offense of armed robbery. The punishment of Gary Rowe O'Neil, an adult, was fixed at confinement for 21 years in the State Penitentiary. The punishment of the two juveniles, Bobby Eugene Fisher and Roger Ward Rathbone, was fixed at confinement for 10 years in the State Penitentiary. Judgment was rendered on the verdict as returned and the three defendants, through court-appointed counsel, have seasonably appealed to this court.

The facts are briefly summarized. The Holiday Inn night clerk at Morristown, Tennessee, was robbed of the sum of approximately $500 at gunpoint in the early morning hours of January 11, 1969. The three defendants were arrested a short time thereafter on Highway 11--E when they made an improper turn. This arrest culminated in the defendants being turned over to Hamblen County officers as the responsible parties for the holdup of the Holiday Inn. They were returned to the Holiday Inn that night and identified by the night clerk, I.e., O'Neil as the gunman and Rathbone, as being present, as the two who had perpetrated the robbery. They were lodged in the Hamblen County Jail and on the morning of the day of the holdup they were interviewed and statements were taken from O'Neil and Rathbone. On January 14, 1969, the investigating officer went to the Hamblen County Jail after Fisher had requested to see him. Fisher informed the officer that O'Neil had the holdup weapon in his cell. He also gave the officer a statement as to his participation in the holdup, relating O'Neil had threatened to harm Rathbone if Fisher did not wait for them. He said he would shoot Rathbone. Rathbone read this statement as given by Fisher and signed it as being correct. O'Neil's cell was searched with a pistol being recovered. This was introduced into evidence. The trial court, out of the presence of the jury, had a hearing on the competency of the confessions. The only proof presented was the testimony of the investigating officer. The defendants did not testify. Exhibits may be found in the record reflecting forms drafted in compliance with the Miranda holdings and waivers of those rights signed and executed by the three defendants. The trial court found as a matter of law and fact that the statements as given were in compliance with the Miranda holdings and allowed them, over objection, to be submitted to the jury. At the trial the defendants did not testify and offered no proof. Preliminary motions were made by the juvenile defendants Rathbone and Fisher (1) to remand their case to juvenile court for further proceeding and (2) to grant severances so that their cases might be tried separately and individually. The motions were overruled by the trial court. The adult defendant O'Neil made no such motion.

The three defendants have filed numerous assignment of error, contending their conviction was had not in accordance with the law.

All three question and contend there is not a sufficiency of proof in this record to sustain the verdict and the verdict is contrary to the law. We have examined this record and find there is a sufficiency of evidence and that it does not preponderate against their guilt and in favor of their innocence. The defendants O'Neil and Rathbone were identified by the victim and money taken in the holdup was recovered from O'Neil. All three defendants were arrested a short time after the robbery and all three admit to their part in the holdup. In considering and passing on these assignments, this court is bound by the rule that a conviction in a criminal case will not be reversed on the facts unless it is shown by the defendants that the evidence preponderates against the verdict and in favor of their innocence. Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768. The defendants have not overcome the presumption of guilt raised by the verdict against them. Accordingly, the first three assignments of the defendants are overruled.

All three defendants contend the verdict is excessive as to show prejudice and caprice on the part of the jury. The verdict of 10 years as returned against Fisher and Rathbone is the minimum punishment for armed robbery. The verdict of 21 years returned against O'Neil is within the limits as prescribed by law for the offense of armed robbery. In Ryall v. State, 204 Tenn. 422, 321 S.W.2d 809, the court said:

'The punishment imposed upon the defendant by the jury was within the limits allowed by law. This did not indicate passion, prejudice and caprice. Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500.'

The assignments are accordingly overruled.

Fisher and Rathbone both contend the court erred in not granting their motion for a severance and not allowing them to be tried separately one from the others. The question of severance addresses itself to the sound discretion of the trial judge. In the absence of an abuse of that discretion his action on denying the severance will not be disturbed on appeal. In this record we find all three defendants confessing as to their complicity in the holdup. In these confessions they each admit their individual role and intertwine their part with the others. Under these circumstances, in viewing this record, we find no abuse of discretion on the part of the trial judge in denying their motion for severance. Ellis v. State, 218 Tenn. 297, 403 S.W.2d 293; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722; Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385; Hunter v. State, Tenn. 440 S.W.2d 1 (1969). We would also add that no grounds are made upon which they predicate their motions for severance other than a general statement by counsel that evidence he thought might be admitted would deprive them of a fair trial. As related, from a review of this record the aforementioned facts and circumstances pertaining to the confessions, we fail to find where the defendants were clearly prejudiced by the court denying defendants' motions for severance. The assignments are accordingly overruled.

The defendants Rathbone and Fisher complain the court erred in not granting their motion to remand them to juvenile court for disposition. We find no error in the trial court denying this motion. The court, by the indictment returned, had jurisdiction of the subject matter and of the person. Under the law all that the juvenile judge could do under T.C.A. Section 37--265 was to dismiss the cause and remand the juveniles back to the sheriff to be dealt with as provided in criminal law. It is not clear from this record but it appears there had been a hearing before the juvenile judge on the 20th of January, 1969. Therefore they were properly before the criminal court at the time of the trial. The assignments are accordingly overruled.

The defendants contend in their assignments that the confessions of the defendants were improperly obtained. They bottomed their assignments on the premises that follow. O'Neil's statement was not taken in accordance with the ruling enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He also contends proof of this is that O'Neil did not sign the statement but initialed it only. The record reflects he signed a waiver of his rights form containing the Miranda warning in its entirety. The trial court found as law and fact from the proof adduced out of the presence of the jury that the statement was taken in compliance with the mandates of Miranda. The fact that he initialed the statement does not void the statement. It is and would be only a fact and circumstance to consider with all of the proof. The assignment as to O'Neil is overruled. The record further reflects and it was found as fact by the trial court that Rathbone and Fisher both signed waiver forms acknowledging the fact that they had been advised in accordance with the Miranda holdings contained on this form. The two juveniles contest the competency of the confessions on the grounds the statements were violative of the holdings found In Re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Also, as minors they could not in the absence of counsel waive their rights and the failure to take the juveniles before a juvenile judge as required by T.C.A. Section 37--252 makes the confessions inadmissible.

Defendants Fisher and Rathbone, in support of their assignment, cite an unreported opinion of this court styled Hayden Lee Chestnut v. State, at Knoxville, filed April 30, 1969. The main opinion in that case was written by Judge Charles Galbreath. There was a reversal had, as cited by the attorney general in his brief, premised on the absence of a waiver knowingly and intelligently made by the confessing juvenile. In discussing this the court observed that the 'totality of the circumstances' must be looked to in determining whether the State had carried the heavy burden of establishing the knowing and intelligent waiver. (We might note Rathbone in this record did not want his mother to be notified of his predicament.) In the Chestnut case, Supra, the court found that the State, under the circumstances, did not carry the burden of showing there was a knowledgeable waiver by Chestnut. In this record, unchallenged and found as fact, the juveniles did execute a...