State v. Glebock
| Decision Date | 26 February 1981 |
| Docket Number | No. 156,156 |
| Citation | 616 S.W.2d 897 |
| Parties | STATE of Tennessee, Appellee, v. Edward Anthony GLEBOCK, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Hal Gerber, Ronald D. Krelstein, Memphis, for appellant.
William M. Leech, Jr., Atty. Gen., Nashville, Jennifer Helton Small, Asst. Atty. Gen., Nashville, Michael B. Neal, Sidney P. Alexander, Asst. Dist. Attys. Gen., Memphis, for appellee.
The defendant, Edward Anthony Glebock 1, was convicted of assault with intent to commit first degree murder for which his punishment was fixed at not less than 5 years nor more than 21 years in the State penitentiary. He was also found guilty of committing the felony with a firearm for which he was sentenced to serve an additional 5 year consecutive sentence under T.C.A. § 39-4914. On this appeal, he insists that the trial court erred in failing to strike a portion of the victim's testimony which was induced by hypnosis, that the evidence does not support the verdict, that he was deprived of Federal and State due process occasioned by the State's delay in investigating the case, that the trial judge erred in permitting certain evidence and in giving jury instructions, and that the prosecution engaged in misconduct. After considering the record and the briefs, we have determined that the judgment of the lower court must be affirmed.
The defendant was convicted of shooting his ex-wife, Barbara D. Moore, four times in the neck with a pistol. The victim's wounds were not fatal, but one bullet struck her spinal column, paralyzing her body from the neck down.
The defendant and Ms. Moore lived together as husband and wife in Cleveland, Ohio. They separated many times during their marriage, but their final separation occurred in February, 1974. In May, 1975, she was granted an absolute divorce from the defendant, and she moved to Memphis in September, 1976. She married Michael Moore in May, 1977. At the time of the shooting, she was a student at Memphis State University.
Having received a degree in industrial engineering, the defendant worked as an engineer. Evidence indicates that he was an expert with firearms and an expert marksman and that he had particular interest in combat stress-type shooting. He has conducted a study of electronic surveillance and other investigative and intelligence techniques. He also had limited aviation training.
There was proof that the victim moved to Memphis to escape the defendant's extreme harassment of her. She took great precaution in moving to conceal her destination from the defendant and went to great length after moving to prevent the defendant from being able to locate her. There was evidence that after their separation and before she moved to Memphis that the defendant threatened her on diverse occasions, followed her, tapped her telephone, habitually took her garbage to investigate its contents, broke into her apartment, and otherwise interfered with her privacy and tranquility.
While living in Memphis, she was using the surname of "Davis," which was her mother's maiden name. Though she had an unlisted telephone number, in February, 1978 she recognized the defendant's voice as that of a person who was calling her on a pretext of interviewing her for a newspaper. He called her again the next day. About two days before the shooting of January 18, 1979, she recognized his voice over the telephone and hung up.
At approximately 12:10 P.M., Central Standard Time, on January 18, 1979, she approached her automobile after leaving a history class at Memphis State University. She noticed a black van with Alabama license plates parked unusually close to her automobile. She then observed the defendant next to the van with his right hand inserted in a paper sack. Before she could get away, the defendant grabbed her, pointed the bag to her face and shot her. As he was attempting to get her into the van, he said, "You're coming with me, babe." She managed to break away and ran; she was shot again and fell to the ground. She remembers the defendant's standing over her and dropping "metal pieces" to the ground.
Other persons appeared on the scene immediately. They found four cartridge cases near her body. She informed these witnesses that her "ex-husband, Ed Glebock" had "hit her" with a bag and that he was in a black van. One of the witnesses observed that a black van was parked in a corner of the parking lot and left about the time the police arrived. She likewise told the investigating officers that the defendant had committed this crime.
About 2:30 P.M. on the date that the crime was committed, a security officer at Memphis State University inspected the victim's automobile. He found marks on the rubber gasket between the two windows on the driver's side where a coathanger or other instrument had been inserted. The door handle of the automobile on the driver's side had been removed. The car was not in this condition when the victim left it that morning. Later that day, it was learned that the battery cable had also been disconnected.
Prior to the commission of the crime, the defendant had gone to great length in his pursuit of information about the victim. In December, 1976, a "John Skoto" wrote to Ms. Dorothy C. Thompson, a private detective in Memphis, asking her to locate a "skipper" named Barbara Ellen Davis. With the request was a detailed description of the victim, including her dress size, and other detailed information about her and her family. A photograph was also enclosed. Ms. Thompson obtained the victim's address and place of employment and forwarded this information to "John Skoto" on December 20, 1976. There is overwhelming evidence, including the defendant's admission, that this information was procured by the defendant, employing a scheme using the fictitious name of "John Skoto."
Furthermore, the defendant somehow ascertained the fact that the victim had married Mr. Michael Moore because on September 28, 1978, Ms. Thompson received a telephone call from "John Skoto" who requested her to check for employment and other information concerning "Michael D. and Barbara Moore at 7622 Stout Road." The victim and Mr. Moore had moved to this address on their marriage. Ms. Thompson did not know that Barbara Davis and Barbara Moore were the same person. Ms. Thompson procured the information requested and forwarded it to "John Skoto." Again, it was definitely established, and admitted, that the defendant had used the fictitious name "John Skoto" as an investigative technique and that he had received this information from Ms. Thompson.
The defendant's defense was an alibi. He testified that he was visiting in the home of his friends, Dr. and Mrs. Barry Portnoy in Pulaski, Virginia from Tuesday, January 16, 1979, until about noon 2 on Thursday, January 18, 1979 and could not have committed this crime in Memphis at approximately 12:10 on January 18. The defendant did not "quite remember" whether he saw Dr. Portnoy on the morning of January 18. 3 He testified that on his return to Cleveland, Ohio from Pulaski, Virginia, he had car trouble at Wheeling, West Virginia and spent the night sleeping in his camper truck at Wheeling. He testified that he arrived in Cleveland at 9:00 A.M. on January 19, 1979.
Dr. Portnoy testified that he and the defendant were close friends and shared an enthusiasm for hunting and firearms. He testified that he left his home in Pulaski, Virginia to go to the hospital at about 10:30 or 11:00 A.M. on January 18 and that the defendant was at his house when he left for the hospital.
Mrs. Portnoy testified that Dr. Portnoy left home at 10:45 or 11:00 and that the defendant left for Ohio shortly after her husband at about 11:00 or 11:30. She stated at another point "Ed left when he (Dr. Portnoy) did." 4
There was much evidence introduced concerning records kept by airports and requirements for filing flight plans by pilots. There was no record of the defendant having made a flight from the vicinity of Pulaski, Virginia to Memphis on the day of the shooting. We will not undertake to summarize this voluminous testimony, but it leaves no doubt that it is possible to fly from Pulaski, Virginia to Memphis, Tennessee in a private airplane without making a record of the flight, takeoff and landings. Even less effort is made by airport personnel to make records of passengers in personally owned or chartered aircraft. The flight time varies according to the type of plane involved and the weather conditions at the time of flight. For example, some propeller-driven, twin-engine airplanes could make the flight at a minimum of one hour and forty-five minutes under ideal conditions. The maximum time required for this flight in these twin-engine airplanes, under the most adverse conditions, is two and one-half hours. Many other types of twin-engine propeller planes could make the flight in less than two hours. Jet airplanes which are obviously faster than twin-engine propeller planes, could make the flight in even less time. Some single-engine propeller planes could make the flight under three hours. It was stipulated that on January 18, 1979, flying conditions were good.
In his attack upon the sufficiency of the evidence, the defendant argues "the possibility of his being able to fly undetected from Pulaski, Virginia to Memphis, Tennessee and back again was established, if at all by circumstantial evidence." He then asserts that the circumstantial evidence must exclude every other reasonable hypothesis "but that of guilt." He cites Overton v. State, 521 S.W.2d 229 (Tenn.Cr.App.1974); Crouch v. State, 498 S.W.2d 97 (Tenn.1973); Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967). These cases, and the many more of like import, are not in point. The defendant's guilt was established by the direct testimony of the victim that the defendant was her assailant. The State is...
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