Rippy v. State

• Decision Date: 02 May 1977
• Citation: 550 S.W.2d 636
• Parties: Richard Haynes RIPPY and Joe Ned Crenshaw, Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 636

550 S.W.2d 636

Richard Haynes RIPPY and Joe Ned Crenshaw, Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

May 2, 1977.

Joe P. Lane, Jr., Carthage, Frank D. Farrar, Lafayette, for petitioners.

R. A. Ashley, Atty. Gen., R. Jackson Rose, David Raybin, Asst. Attys. Gen., Nashville, Nat Baxter Key, Jr., District Atty. Gen., Carthage, for respondent.

OPINION

HENRY, Justice.

Petitioners were convicted of murder in the first degree in the Criminal Court at Hartsville and sentenced to death by electrocution. The Court of Criminal Appeals affirmed the convictions, and we granted certiorari.

These convictions grew out of an armed robbery that occurred on the night of 3 May 1974, of a liquor store located in Hartsville, the county seat of Trousdale County, resulting in one man being killed and another being wounded.

Numerous errors have been assigned and, in view of the gravity of the offense and the severity of the punishment, we consider it appropriate to deal with them seriatim, except to the extent of those patently without merit.

I.

It is first insisted that the evidence is insufficient to support the convictions. These petitioners were found guilty of murder in the first degree by a constitutionally constituted jury. The verdict of the jury was approved by the trial judge. The Code of Criminal Appeals has determined that the evidence was sufficient to support the convictions. We concur in these findings and conclusions.

II.

Each petition challenges the action of the Court of Criminal Appeals in sustaining the trial judge's denial of a motion for a change of venue.

The record reflects that the defendants called twelve witnesses, including the two petitioners, in support of their motion. Only three of them were residents of Trousdale County. Much of the testimony was of questionable competence. Viewing it in its most liberal light to the defendants, the testimony was conclusory in character with little or no factual foundation. Defendants called the Sheriff and one of his deputies, the son of one of the victims. The trial judge could have found from their testimony ample support for his denial of the motion.

Great reliance is placed upon an incident which occurred on November 11, 1974, the date upon which a hearing was conducted on a plea in abatement, and involving an alleged assault on petitioners by the surviving victim. Also on the same date there was testimony that a female spectator in the courtroom made certain ugly remarks and used offensive language; and that one of the lawyers was the victim of a mild threat and a threatened assault.

Accepting all these at full and face value, petitioners made no case for a change of venue. We cannot bring ourselves to believe that there was any serious question about a fair trial. The hearing upon the plea in abatement was conducted on November 11, 1974. The petitioners did not move the court for a change of venue until January 3, 1975, ¹ a total of fifty-three days after the occurrence of the events upon which the motions were primarily based.

Section 40-2201, T.C.A. provides that venue may be changed where "from undue excitement against the prisoner in the county where the offense was committed, or any other cause, a fair trial could probably not be had." We find nothing in the record to indicate undue excitement or other cause for a change in the locale of the trial. We note that jury selection was completed in one day and that one of the petitioners did not exhaust his peremptory challenges.

The matter of a change of venue addresses itself to the sound judicial discretion of the trial judge and his decision must be respected absent an affirmative and clear abuse of that discretion. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967).

This assignment is without merit.

III.

Petitioners earnestly insist that they were prejudiced by a tainted out-of-court identification. After the jury was sworn, but before the introduction of proof, a motion to suppress was made and an evidentiary hearing was conducted.

After petitioners were arrested in New York City and had been returned to Tennessee, they were placed in confinement in the Smith County Jail at Carthage. ² While there, A. L. (Slim) Roddy, the surviving victim came to the jail and to the cell occupied by the petitioner, Crenshaw. The Sheriff, according to Crenshaw, said: "Ain't that the one?" Roddy answered in the affirmative. This occurred prior to the preliminary hearing. The then Sheriff of Smith County testified very briefly and said that he took an unidentified man to see petitioners and he said: "Them is the ones."

Petitioners occupied the same cell. It is Rippy's testimony that he left the cell to make a telephone call and while in the jail office he saw a man on crutches, who obviously was Slim Roddy, who got a good look at him.

Both petitioners testified that they had requested that counsel be appointed prior to the identification in the Smith County Jail however, the trial judge refused to permit them to document their requests.

Subsequently, at the preliminary hearing, Roddy identified the petitioners.

The State called Roddy in opposition to the motion. He insists that he drove over to Carthage at the invitation of his brother and concedes that while there he saw petitioners. He said:

When I saw them, I knowed what they had done.

He testified to the lighting conditions on the premises of the liquor store floodlights on the outside and on the inside, "three rows of lights plumb through the building, and they is lights around the tops of all the shelves around the store except the front."

He first saw the petitioners when they were inside the store standing at the counter, about two and a half or three feet away from him. After Crenshaw shot his co-worker, Roddy jumped across him, trying to reach his gun. But, he says "I was looking over my shoulder still looking at them, and that one over there shot me with a shotgun."

When asked if their faces made an impression on him he responded: "I see it in my sleep now." He stated positively that the identification at the jail had no effect upon him. He explains his visit to the Smith County Jail as being prompted by a desire to "know whether that was them, or not." He had previously given a description of them to the Tennessee Bureau of Identification. On re-direct examination he testified that he wanted to "ease" his mind; that he was apprehensive over his personal safety since he was the only living eyewitness.

The trial judge specifically found that Roddy's explanation for wanting to see petitioners was entirely reasonable. We concur.

The record is devoid of proof that the identification was rigged or planned, or even that anyone officially connected with the prosecution had any advance knowledge of it or participated to any extent. ³ There was no formal line-up or show-up.

We hold that the out-of-court identification was not so suggestive as to give rise to any substantial likelihood of irreparable misidentification. It, therefore, squares with the great trilogy of cases decided by the Supreme Court of the United States in 1967, viz: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In Wade the Court spoke in terms of "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." (Emphasis supplied). 388 U.S. at 228, 87 S.Ct. at 1933.

In Gilbert the Court held that a post indictment, pretrial lineup is a critical stage of a criminal prosecution and, conducting it in the absence of counsel violates the Sixth Amendment and calls into question the admissibility of the identification.

Neither Wade nor Gilbert is controlling in the instant case since the prosecution was not responsible for the pretrial identification.

In Stovall, the Court announced a rule of law that:

(a) claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. . . . (Emphasis supplied). 388 U.S. at 302, 87 S.Ct. at 1972.

As we pointed out in our recent case of Bennett v. State, 530 S.W.2d 511, 513 (Tenn.1975) "the 'totality of the circumstances' rule of Stovall was reaffirmed in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)."

Finally, in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) an attack was made upon a show-up identification procedure. This Court had previously upheld the conviction; ⁴ the United States District Court on the petition for the writ of habeas corpus held that the procedures denied due process and the United States Court of Appeals affirmed. 448 F.2d 91 (6th Cir. 1971). The Supreme Court reversed, holding that the criteria for evaluating the likelihood of misidentification include

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. 409 U.S. at 199, 93 S.Ct. at 382.

The identification in this case, made fifty days after the commission of the crime, during a chance encounter having no official sanction, by a witness who had seen petitioners in a well-lighted whiskey store, under circumstances commanding complete attention, and made with devastating certainty, passes muster under the guidelines of Neil v. Biggers. The out-of-court identification was not tainted; the in-court identification was absolute, unconditional and independent of the chance encounter. See Kelley v. State, 478 S.W.2d 73 (Tenn.Cr.App.1972).

This assignment is overruled.

IV.

Another major insistence of the petitioners is...