State v. Zyla

• Decision Date: 05 November 1981
• Docket Number: No. 3,3
• Citation: 628 S.W.2d 39
• Parties: STATE of Tennessee, Appellee, v. Allan James ZYLA, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 39

628 S.W.2d 39

STATE of Tennessee, Appellee, v. Allan James ZYLA, Appellant.

No. 3

Court of Criminal Appeals of Tennessee, at Jackson.

Nov. 5, 1981 Permission to Appeal Denied by Supreme Court Feb. 22, 1982.

Guy T. Wilkinson, Camden, Marvin P. Morton, Jr., Paris, for appellant.

William M. Leech, Jr., Atty. Gen., Gordon W. Smith, Asst. Atty. Gen., Nashville, Theodore H. Neumann, Clayburn Peeples, Asst. Dist. Attys. Gen., Trenton, for appellee.

OPINION

TATUM, Judge.

In four indictments, the defendant Allan James Zyla, was charged with grand larceny, receiving stolen property, and concealing stolen property. He was found guilty of receiving stolen property as charged in one count of one of the indictments (No. 10494) and was sentenced to serve not less than 3 years nor more than 3 years in the State penitentiary. The jury was unable to reach a verdict in the other three cases and mistrials were declared. On this appeal, he assigns error that he was denied effective assistance of counsel when the trial court refused to allow him new counsel and a continuance. He also says that his extrajudicial statement was admitted into evidence in violation of his State and Federal Constitutional rights and that the evidence was not sufficient to sustain the jury's verdict. We find these issues to be without merit and therefore affirm the judgment of conviction.

We first consider the issue testing the sufficiency of the evidence. The defendant was convicted of receiving a large quantity of guns that had been stolen from Western Auto Store in Paris, Tennessee. In February, 1980, the store was burglarized and approximately 70 to 75 guns were stolen. In January and February, 1980, two pistols were stolen from Uncle Lee's Sporting Goods in Paris and one pistol was stolen from the Wal-Mart Store in Paris.

Charles Gillespie testified that he had stolen the guns from these stores and sold about 60 of them to the defendant for a small fraction of their value. According to Gillespie, he informed the defendant that the guns were stolen in Chicago, Illinois. Approximately 6 separate sales were made to the defendant.

After Gillespie was arrested for the theft of the guns, he informed officers that some of the guns were at Bonnie and Clyde's Beer Tavern, which was owned by the defendant. Officers went to the beer tavern and obtained permission from the defendant to search for the guns. More than 30 of the stolen guns were recovered from the defendant's possession.

After the defendant's arrest, he gave the police a statement in which he admitted buying the guns from Gillespie and that he "understood some of them might have been stolen." The defendant also admitted that he sold some of the guns that he bought from Gillespie.

The defendant testified that he was a collector of guns. He stated that Gillespie had told him that the guns belonged to Gillespie's father-in-law, who was a police officer in Chicago, Illinois. He estimated that 29 guns that he had purchased from Gillespie the day of his arrest were worth approximately $2,000 and he paid Gillespie $950 for them. The defendant testified that prior to this purchase, the owner of Western Auto Store came to him and told him that he would pay $100 for each stolen gun and would ask no questions or report the theft to the police. He told the Western Auto Store owner that he did not have any of the guns and he lied to the store owner because he did not want to get further involved and because the store owner was attempting to recover the guns illegally. From this conversation, the defendant "presumed" that he (the defendant) had been purchasing stolen guns from Gillespie. More than a week after the store owner's visit, the defendant purchased the additional guns from Gillespie.

The defendant's wife testified that Gillespie had been selling the defendant guns for two or three months. On the evening of the defendant's arrest, the defendant purchased the last group of guns from Gillespie. A few minutes before the officers arrived, she noticed a "true value" sticker on the bottom of a gun box which indicated to her that the guns were from Western Auto. She pointed this out to the defendant who replied that Gillespie "better not have brought me no stolen guns." Both the defendant and his wife testified that a police officer told the defendant that there would be no charges brought against him if he would cooperate. This was denied by the police officer and a contrary statement was made by the defendant in the taped statement that he gave to the policemen after his arrest.

The evidence of the defendant's guilt is overwhelming. It meets the standard of Rule 13(e), T.R.A.P. and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In another issue for review, the defendant says "that his statement was admitted in violation of his Tennessee and United States constitutional rights." No pretrial motion to suppress this evidence was filed and no objection was made at trial. The issue was first raised on the motion for a new trial. The failure to file a pretrial motion to suppress constitutes a waiver unless good cause for the failure to raise the matter pretrial is timely shown. Rule 12(f), T.R.A.P.; Feagins v. State, 596 S.W.2d 108, 109-110 (Tenn.Cr.App.1979). The attorney who represents the defendant on appeal and who filed the motion for a new trial is not the same attorney who represented the defendant at trial. The trial attorney did not testify at a hearing on the motion for a new trial and his reason for not filing a pretrial motion is not expressly revealed in the record. However, we note that the evidence is undisputed that the guns were found pursuant to a valid consent by the defendant to search his premises. His defense was not based upon the theory that he did not possess the guns but on the proposition that he did not know they...