State v. Burton

Decision Date11 February 1988
Citation751 S.W.2d 440
PartiesSTATE of Tennessee, Appellee, v. Frank Daniel BURTON, Sr., David Kenneth Burton, and Robert Kenneth Jones, Appellants. 751 S.W.2d 440
CourtTexas Court of Criminal Appeals

David Bass, Carthage, for Frank Daniel Burton, Sr.

James B. Dance, Carthage, for David Kenneth Burton.

Randy Wakefield, Carthage, for Kenneth Hayes.

W.J. Michael Cody, Atty. Gen. & Reporter, Marian Nabors Banks, Asst. Atty. Gen., Nashville, Tom P. Thompson, Dist. Atty. Gen., Hartsville, Connie Robertson, Asst. Dist. Atty. Gen., Lebanon, John Wooten, Asst. Dist. Atty. Gen., Hartsville, for appellee.

OPINION

JONES, Judge.

The defendants, Frank Daniel Burton, Sr., David Kenneth Burton, and Kenneth Hayes, were convicted of two counts of robbery with a deadly weapon by a jury of their peers. The trial court sentenced the defendant Frank Daniel Burton, Sr., to confinement in the Department of Correction for a period of fifteen (15) years in each case as a Range I especially mitigated offender in one case and a standard offender in the other case. The trial court sentenced the defendants David Kenneth Burton and Kenneth Hayes to confinement in the Department of Correction for a period of thirty-five (35) years in each case as Range II persistent offenders. The trial court ordered that all of the sentences were to be served concurrently.

In this Court the defendants have raised a multitude of issues.

The defendant Frank Daniel Burton, Sr., contends that the trial court committed error in (a) denying his pretrial motion to suppress, (b) denying his pretrial motion for a severance, (c) permitting the victims to make in-court identifications and (d) permitting the assistant district attorney general to cross-examine him about a prior exculpatory statement and his post-arrest silence.

The defendant David Kenneth Burton contends the trial court committed error in (a) denying his pretrial motion to suppress, (b) denying his pretrial motion for a severance, (c) denying his pretrial motion for the arrest histories of state witnesses, (d) permitting the prosecutor listed on the indictment to testify as the State's last witness, (e) denying the defendant's motion for mistrial when it was brought to the attention of the jury that the defendants had escaped from jail; (f) denying the defendant's motion for a mistrial when the assistant district attorney general mentioned that he was guilty after defense counsel waived argument; and (g) denying a motion for continuance on the ground he was seen by the prospective jurors on the morning of trial in handcuffs as he was led to the courtroom by a deputy sheriff.

The defendant, Kenneth Hayes, contends the trial court committed error in (a) denying his pretrial motion to suppress (b) denying his pretrial motion for a severance, (c) denying his pretrial motion for the arrest histories of state witnesses, (d) denying his pretrial motion for a change of venue, (e) denying his pretrial motion for individual voir dire, (f) denying his pretrial motion to disqualify the district attorney general and his staff from prosecuting these cases against the defendants, (g) denying the defendant's motion for a mistrial when it was brought to the attention of the jury that the defendants had escaped from jail, (h) permitting the victims to make in-court identifications, (i) permitting the prosecutor listed on the indictment to testify as the State's last witness, (j) denying a motion for continuance on the ground he was seen by the prospective jurors on the morning of trial being brought into the courthouse with his two co-defendants, and (k) he challenges the sufficiency of the convicting evidence.

SUFFICIENCY OF THE EVIDENCE

During the early morning hours of September 23, 1985, the two victims, Rebecca L. Thomas and Jacque Daly, were traveling eastwardly on Interstate 40 when they decided to stop at the Buffalo Valley Rest Area, which is located in Smith County. As Ms. Thomas, who was driving, prepared to exit the automobile, a masked man, later identified as David Kenneth Burton, opened her door, placed the barrel of a sawed-off shotgun in her face, and ordered her to slide across the front seat. The gunman then beckoned a second masked man, saying "Bro get in the back." The second man, later identified as Frank Daniel Burton, Sr., entered the vehicle from the passenger side, and sat on the back seat. David Burton then gave his brother, Frank, the shotgun, and David pulled a knife from his pocket.

The gunman demanded the keys to the automobile. They told the victims they planned to take their money, drive them to an undisclosed location, and leave them. Ms. Thomas had placed the keys under her right leg, and, fearing that the gunman would harm them or take their lives, told the gunman she did not know what happened to the keys because their appearance startled her. When the two gunmen searched for the keys, a third masked man, later identified as Kenneth Hayes, leaned inside the vehicle and began wrapping a pair of nunchucks around Ms. Thomas' neck. When she grabbed the nunchucks, Frank Burton struck her from the rear with the shotgun. When she reacted to this blow, she felt the nunchucks choking her.

When the gunmen were unable to locate the keys to the automobile, they tied the victim's hands, took Ms. Thomas' purse, overnight bag, and a quilt as well as Mr. Daly's wallet, jacket, hat, and a case containing numerous audio cassettes. The gunmen were seen leaving in an older model white Ford van, which had "rusty spots" on the body. The gunmen took the ramp to go westbound on Interstate 40.

The victims reported the robbery to law enforcement officers. The Putnam County Sheriff's Department and the Smith County Sheriff's Department notified law enforcement agencies in the surrounding counties that an armed robbery had occurred, and provided these agencies with a description of the van as well as the gunmen. Approximately one hour after the robbery a van matching the description contained in the broadcast was discovered on a parking lot in Alexandria, Tennessee. A DeKalb County deputy sheriff ordered the occupants to exit the van. The defendants subsequently exited the van.

The defendants left the doors to the van open. When the deputy sheriff looked inside the van, he saw a pipe which was described as the type used to smoke marijuana. The deputy also saw the handle and trigger guard of a gun, which he thought was a pistol, protruding from beneath a board inside the van. When the deputy retrieved the gun, he discovered it was a sawed-off shotgun. A subsequent search of the van revealed pocket knives, a pair of nunchucks, shotgun shells, bandannas similar to those worn by the gunmen, Ms. Thomas's purse, and Mr. Daly's billfold. Both of the Burtons had knives in their pockets when searched.

The defendants and the van were returned to Smith County. The victims identified the van later that morning.

The victims made in-court identifications of the defendants as the three gunmen. They also identified their personal property, the sawed-off shotgun, and the nunchucks found inside the van occupied by the defendants.

Frank Daniel Burton, Sr., testified in support of his defense. He related that he and his brother, Kenneth, drank beer most of Sunday afternoon. That night they went "bar hopping" and he became highly intoxicated. He also consumed a Quaalude, which eventually made him become very sleepy. He went to his brother's van and fell asleep.

Burton stated he was awakened by his brother, who told him the van was out of gas and asked if he knew whether there was a service station open in Alexandria. He noticed for the first time that there two individuals in the van he did not know. He subsequently went back to sleep. A short time later he was awakened by the police, and subsequently arrested for armed robbery. He was unaware a robbery had occurred. He noticed that the fourth person, whom he had never met, was not present.

When an accused challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at trial is sufficient "to support the findings by the trier of fact of guilt beyond a reasonable doubt." Tenn.R.App.P. 13(e). This rule is applicable to findings of guilt based upon direct as well as circumstantial evidence. Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1961); State v. Brown, 551 S.W.2d 329, 331 (Tenn.1977).

In determining the sufficiency of the evidence we do not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973); Braziel v. State, 529 S.W.2d 501, 505 (Tenn.Crim.App.1975). Nor may be substitute our inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn.Crim.App.1978). To the contrary, we are required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Cabbage, supra.

Questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. State v. Cabbage, supra; State v. Grace, supra; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). In Grace our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State." 493 S.W.2d at 476.

Since a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, State v. Grace, supra, the accused...

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