State v. Baker, C

• Decision Date: 01 November 1989
• Docket Number: No. C,C
• Citation: 785 S.W.2d 132
• Parties: STATE of Tennessee, Appellee, v. James A. BAKER, Jr., Appellant. C.A. 93.
• Court: Tennessee Court of Criminal Appeals

Page 132

785 S.W.2d 132

STATE of Tennessee, Appellee, v. James A. BAKER, Jr., Appellant.

No. C.C.A. 93.

Court of Criminal Appeals of Tennessee,

at Jackson.

Nov. 1, 1989.

Permission to Appeal Denied by

Supreme Court Feb. 5, 1990.

James D. Wilson, Harris, Shelton, Dunlap & Cobb, Charles R. Curbo, Memphis (at trial), for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, Paul Goodman, James Dedman, Asst. Dist. Attys. Gen., Memphis, for appellee.

OPINION

DWYER, Judge.

This is an appeal as a matter of right by James A. Baker, Jr. from the judgment of the Shelby County Criminal Court affirming a jury verdict finding appellant guilty of robbery with a deadly weapon. Appellant was sentenced as a Range I standard offender to serve eleven years in the Department of Corrections. Nine issues are presented for appellate review. Inasmuch as no challenge to the sufficiency of the convicting evidence has been raised, only a brief recitation of the facts is offered.

On or about August 29, 1987, a man entered the Video Showtime in Memphis about closing time and robbed it at gunpoint. Three attendants observed the robber. A few days following the incident, each witness individually identified the appellant from photographic arrays. All three also positively identified the appellant at trial.

ISSUE I. Whether the appellant was denied the effective assistance of trial counsel.

The appellant contends that he was not provided effective assistance of counsel at trial. The State submits that the issue has been waived inasmuch as it was not raised in the motion for new trial. We are in accord with the State and therefore leave the merits or nonmerits of this issue for a later day. Rule 3(c), Tenn.R.App.P.; State v. Brock, 678 S.W.2d 486 (Tenn.Crim.App.1984). The first issue is waived.

ISSUE II. Whether the trial court erred in quashing the subpoenas requested by appellant.

The appellant contends that the trial court erred in quashing the subpoenas duces tecum that had been issued by appellant for certain police records. Specifically, appellant sought to subpoena the police dispatcher tape for all incoming and outgoing dispatcher broadcasts for a four-hour period from August 29, 1987 to August 30, 1987 as well as Crime Stopper records. The attorney's reason for wanting the tapes was to discover whether there was a discrepancy in the description of the robber that was broadcast over the police radios and the descriptions given by the witnesses.

We cannot agree with appellant's argument. In Bacon v. State, our Supreme Court quoted 97 C.J.S. Witnesses § 9 for the proposition that:

A court is not required to issue compulsory process for anyone whom accused may designate as a witness; the constitutional right to compulsory process required such process for, and only for, competent, material, and resident witnesses whose expected testimony will be admissible. Within these limitations accused may obtain the attendance of any witnesses he cares to use.

215 Tenn. 268, 385 S.W.2d 107, 109 (1964).

In the case sub judice, appellant failed to demonstrate the relevancy of the materials sought. He offered no proof concerning any possible discrepancy between the description of the robber offered by the officer that made the initial broadcast and that of other witnesses. As to the subpoena for Crime Stopper records, the attorney for the appellant admitted that he had no specific knowledge that Crime Stoppers had received a tip regarding this case.

Assuming, arguendo, that the trial court erred in quashing the subpoenas for the dispatcher tapes, any error would be harmless in view of the fact that the officer that made the initial broadcast had been subpoenaed to trial and was available to testify.

The issue is overruled.

ISSUE III. Whether the trial court properly refused to allow the appellant to cross-examine witnesses regarding alleged prior bad acts.

The appellant contends that the trial judge erred in not allowing the cross-examination of two of the State's witnesses, Mr. Williams and Mr. Harmon, regarding alleged prior bad acts. Specifically, the appellant argues that such a collateral attack on the testimony of the State's witnesses would establish bias or motive on their part. We cannot agree with the appellant.

In the first instance, there was no factual basis established for the questions. Counsel for the appellant acknowledged at trial that he had no factual basis that Mr. Williams was involved in a prior bad act, ie., thefts from the store. In the second instance, asking the witness if the police had questioned him about inside thefts brought a negative answer. He did not question the co-employee, Harmon, about alleged thefts in the store; nor did he ask the store owner about any alleged thefts.

The issue is without merit and is overruled.

ISSUE IV. Whether the trial court erred in prohibiting the appellant from impeaching a State's witness.

The appellant contends that the trial court improperly restricted the impeachment of Ms. Kallaher by not allowing a previously inconsistent statement to be read to the jury. The record reveals that Ms. Kallaher testified at trial that the robber's hair parted from left to right. On cross-examination she testified that she did not recall telling the defense attorney that the robber's hair parted from right to left.

The decision to admit or exclude evidence is left to the discretion of the trial judge and his decision will not be disturbed unless it is arbitrarily exercised. State v. Hawk, 688 S.W.2d 467 (Tenn.Crim.App.1985). In the instant case, the trial judge's decision was not arbitrary under the circumstances. See Blackmon v. Estate of Wilson, 709 S.W.2d 596 (Tenn.App.1986).

In the best light to appellant, we cannot say that proving how appellant parts his hair would have affected the results. Furthermore, the witness did not make an unequivocal denial, which was necessary in order for proper impeachment.

The issue, therefore, is overruled.

ISSUE V. Whether the trial court erred in refusing to allow appellant's counsel to withdraw a question.

The appellant contends that the trial judge erred in refusing to allow defense counsel to withdraw a question regarding information of appellant's possible involvement in other robberies. The State contends that this issue has been waived by the appellant's failure to preserve the issue.

Pursuant to Rule 3(e), Tenn.R.App.P., "no issue presented for review shall be predicated upon error in the ... misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought unless the same was specifically stated in a motion for new trial; otherwise, such issues will be treated as waived." See State v. McKinney, 603 S.W.2d 755 (Tenn.Crim.App.1980); State v. Gauldin, 737 S.W.2d 795 (Tenn.Crim.App.1987).

The issue, not in the motion for new trial, is waived.

ISSUE VI. Whether the trial court erred in its instruction to the jury on character evidence.

The appellant contends that the trial judge erred in instructing the jury regarding character evidence. The State contends that this question has been waived for failure to properly preserve the issue.

The record reveals that the appellant did not object to the instruction as given by the judge, and did not raise the issue in his motion for new trial. Therefore, the appellant's failure to raise a contemporaneous objection or to preserve the issue in his motion for new trial, results in waiver. Rule 3(e), Tenn.R.App.P.; State v. Haynes, 720 S.W.2d 76 (Tenn.Crim.App.1986); State v. Crocker, 697 S.W.2d 362 (Tenn.Crim.App.1985).

Accordingly, this issue has been waived.

ISSUE VII. Whether the trial court...