State v. Lequire

• Decision Date: 01 September 1981
• Docket Number: No. 25,25
• Citation: 634 S.W.2d 608
• Parties: STATE of Tennessee, Appellee, v. Jerry Allen LEQUIRE, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 608

634 S.W.2d 608

STATE of Tennessee, Appellee, v. Jerry Allen LEQUIRE, Appellant.

No. 25

Court of Criminal Appeals of Tennessee, at Nashville.

Sept. 1, 1981.

Permission to Appeal Denied by Supreme Court June 1, 1982.

David T. Black, Gerald Russell, Maryville, Charles Galbreath, Mark A. Schneider, Nashville, for appellant.

William M. Leech, Jr., Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., James Richard Scroggins, Asst. Dist. Atty. Gen., Sevierville, for appellee.

OPINION

DUNCAN, Judge.

The appellant-defendant, Jerry Allen Lequire, was convicted in two (2) cases of aiding and abetting an attempt to destroy dwelling houses by placing explosives adjacent thereto. T.C.A. § 39-1403. He was sentenced to the penitentiary to serve not less than five (5) years nor more than five (5) years in each case, the sentences to be served consecutively.

The issues in this appeal are (1) whether the evidence is sufficient to support the verdict; (2) whether hearsay testimony was erroneously allowed into evidence; (3) whether it was proper for the trial court to charge the jury on the law of aiding and abetting; and (4) whether the trial court should have granted a new trial on the grounds of newly discovered evidence. We find no merit to the issues raised.

The evidence in these cases showed that on August 29, 1978, Freda Burts, a member of the City Council of Jefferson City, found a home-made type bomb about two (2) feet from the north side of her dwelling house. The bomb consisted of a clock and several sticks of dynamite. On the same date, a similar bomb was found placed against a wall of John Gibson's dwelling house. Gibson was also a City Council member.

Experts in demolition were called in to investigate these incidents and to defuse the bombs. Their investigation revealed that the blasting caps on the bombs had exploded, but the dynamite did not explode, apparently because it was old and had gotten wet. These experts testified that the two (2) bombs were remarkably similar and looked "as if the same person" had constructed them. Additionally, it was shown that the dynamite used in each bomb bore the same "shift code" number. This number is affixed at the factory to show the date and place the dynamite was manufactured and the work shift responsible for its manufacture. The evidence established that several cases of dynamite bearing this "shift code" number had been shipped by the manufacturer to a business establishment in Jefferson City.

Two fingerprints were found on the face of the clock which was discovered at the Gibson house. A fingerprint expert identified these as being the defendant's fingerprints. These fingerprints on the face of the clock rather than on the covering of the clock face indicate that the covering was not on the clock when the fingerprints were impressed thereon. It was the opinion of this expert witness that the two (2) fingerprints were impressed on the clock at different times.

One of the State's theories was that the defendant and Franklin Park acted in concert in the planning and commission of the crimes involved herein. The State's evidence established that the defendant and Park, a Jefferson City attorney who died prior to the trial of these cases, were friends and were seen together on divers occasions leading up to the date of these crimes. The defendant frequently visited at Park's home and was seen there with Park on August 27, 1978, two (2) days before the bombs were discovered at the Gibson and Burts homes. It was shown that Park was highly incensed with the members of the City Council of Jefferson City, especially Gibson and Burts, over the appointment of Waymon Poole as Chief of Police. Park, a man of considerable temper, had a running disagreement with Waymon Poole. This evidence was introduced primarily through the testimony of John Gibson. The defendant's objection to this testimony was overruled by the trial court.

According to the testimony of John Gibson, Park had contacted him in May and June, 1978, and told him to fire Waymon Poole as Chief of Police. Park telephoned Gibson on Friday night, August 25, 1978, and again around 1:30 a. m. on Saturday, August 26, 1978. In the latter call Park told Gibson that "someone was going to get hurt." Park also advised Gibson he was holding Gibson and Freda Burts responsible for the hiring of Waymon Poole. He cursed Gibson for several minutes and then hung up.

Warren Stinson, a former employee of Park, testified that in the summer of 1978, he accompanied Park to the airport at Alcoa to meet the defendant. Stinson was admonished by Park: "Don't ask any questions." The three (3) ate together, then went to the defendant's trailer, where the defendant and Park had a private conversation out of the presence of Stinson. On August 27, 1978, Stinson and some friends went to Park's residence at Jefferson City. When they arrived, Park, the defendant, and two (2) other men were present. Park told Stinson to take his friends and "git gone."

The defendant also objected to Stinson's testimony about the remarks that Park had made to him, but the objection was overruled by the trial court.

Other evidence showed that after the investigators found the defendant's fingerprints on the clock, they went to talk to him. The defendant admitted that he and Park were good friends, and that he had spent a good deal of time at Park's home around the time the bombs were found. The investigators showed the defendant the two (2) clocks which had been found at the Gibson and Burts homes, and he denied that he had ever seen them before, had ever owned any like them, or had ever seen any like them in Park's home. He told them that Park had only electric clocks in his home.

The defendant did not testify, but offered the testimony of two (2) witnesses, apparently in an attempt to explain the presence of his fingerprints on the clock found at the Gibson home.

Jackie Poore testified that he had seen the defendant at the Park home on two (2) or three (3) occasions, and that in early August, 1978, he saw on Park's kitchen table disassembled clocks similar to those used in fashioning the bombs.

Patricia Purdue, a girl friend of the defendant, testified that the defendant had introduced her to Park, and that in early August, 1978, she went to Park's home. The defendant arrived there about the same time as she did. When they went into the house, she noticed some disassembled clocks on the table in the dining room. The clocks were similar to those used in fashioning the bombs. Ms. Purdue also observed "tools and stuff" on the table, prompting her to inquire whether the clocks were being taken apart or being put back together. The defendant was in the kitchen at the time, and Ms. Purdue did not know if he heard her inquiry. Ms. Purdue picked up one of the clocks to look at it, and then handed it to the defendant who put it on the table or in a box.

The foregoing is a sufficient summary of the evidence to answer the issues raised in this appeal.

Initially, we will answer the defendant's second issue regarding whether the trial court erroneously allowed hearsay testimony into evidence. The defendant argues that the testimony of John Gibson and Warren Stinson, regarding remarks made to them by Park, was inadmissible hearsay and that by allowing Park's remarks into evidence, he was denied his Sixth Amendment right of confrontation. The trial court found the testimony of these witnesses to be admissible as going to "motive." The State argues that Park's remarks to the witnesses were not hearsay because they were not introduced to prove the truth of the matters asserted therein. Also, the State insists the remarks were relevant and thus admissible to show Park's motive to harm Gibson and Burts. Further, the State says that even if the questioned remarks can be characterized as hearsay, they were still properly admitted into evidence as an exception to the hearsay rule, and that no confrontation right of the defendant has been abridged.

After considering the entire record, we conclude that the trial court properly allowed this questioned evidence to be considered by the jury. Park's commands to Stinson were not hearsay because they were not offered to prove the truth of the matters asserted therein. The portion of Park's remarks to Gibson that could legitimately be argued to be of a hearsay character were admissible as an exception to the hearsay rule.

The evidence in this record establishes that there was an ongoing conspiracy between Park and the defendant to commit the crimes involved herein. ¹ In view of this fact, then the co-conspirator exception to the hearsay rule is applicable in these cases.

A conspiracy is defined as a combination between two or more persons to do a criminal or an unlawful act or a lawful act by criminal or unlawful means. Owens v. State, 178 Tenn. 32, 154 S.W.2d 529 (1941). Everyone entering into a conspiracy is a party to every act which has before been done by the others, and to every act by the others afterward, in furtherance of the common design. The act of one is considered the act of all and, therefore, is imputable to all. Solomon v. State, 168 Tenn. 180, 76 S.W.2d 331 (1934). Also, where one co-conspirator commits the target crime in the absence of the other, the absent one is equally guilty as a principal. Beck v. State, 203 Tenn. 671, 315 S.W.2d 254 (1958); Pierce v. State, 130 Tenn. 24, 168 S.W. 851 (1914). Once a conspiracy has been established, evidence of any act or declaration of a conspirator during the conspiracy, and in furtherance of it, is admissible as substantive evidence against any co-conspirator on trial for the commission of the target crime. Randolph v. State, 570 S.W.2d 869 (Tenn.Cr.App.1978); Evans v. State, 557 S.W.2d 927 (Tenn.Cr.App.1977); 3 Wharton's Criminal Evidence § 642 (13th ed. 1973).

Obviously, the evidence which connects the...