Wiley v. State
| Decision Date | 12 January 1977 |
| Parties | Theodore WILEY, Jr., and Osborne Booker Waters, Appellants, v. STATE of Tennessee, Appellee. 552 S.W.2d 410 |
| Court | Tennessee Court of Criminal Appeals |
William B. Bruce, Nashville, for Wiley.
Charles L. Hendrix, Jr., Nashville, for Waters.
R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for appellee.
Theodore Wiley, Jr. and Osborne Booker Waters were jointly charged with the commission of two separate armed robberies (of Raymond R. Oakley and Rex D. Kenyon) and, upon a joint trial, were both convicted in both cases. Wiley's sentence was fixed at ten years in each case while Waters' sentence was set at fifteen years in each case; and the trial judge, without setting out why, ordered the two sentences of each man to be served consecutively. Both have appealed and assigned numerous errors. For the reasons hereinafter set out, we overrule the assignments of error of both appellants and affirm the convictions.
The robbery victims, Oakley and Kenyon, operators of a semi-trailer truck, were victimized immediately after arriving in Nashville. Arriving at their truck docking area in the nighttime, they were shortly accosted by two robbers armed with pistols. Their personal valuables were taken, as was a tape player from their tractor. The robbers, both young black men, made violent threats with racist overtones to the victims. Finally, each victim was knocked in the head in an apparent effort to kill them. Both played dead and survived. Immediately after the robbers left the scene the victims drove to an area police station and reported the matter. Shortly thereafter an automobile registered to Wiley was involved in a chase with a police cruiser and was wrecked and abandoned by two black males. A search of the car revealed fruits of these robberies and a pistol identified as one of the weapons used. Subsequently victim Oakley was shown a group of five photographs by police officers, and picked Appellant Wiley's picture as being that of one of the robbers. The following day a group of six additional photographs was shown to Oakley, and this time he identified a picture of Waters as being that of the second robber. Victim Kenyon could not identify either robber because, in his words, his eyes were "glued on the gun" during the robberies.
The cases against Wiley and Waters had at one time been severed, and Waters had been separately tried, that proceeding resulting in a mistrial because of a hung jury. Apparently Wiley chose to testify upon that trial, and admitted that he (Wiley) was "up with" the robbery, and admitted that he took the tape player which he abandoned in his car upon running from the police. Wiley also gave a statement to the investigating officers, after full advice of his Miranda rights, and the statement fully inculpated him. Victim Oakley made a positive in-court identification of both of the accused.
Only Waters questions the legal sufficiency of the convicting evidence. The defendants offered no proof. Obviously, the assignment is without merit. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).
Wiley assigns as error the fact that he was tried for "two separate and distinct offenses", and Waters claims error because his trial was consolidated with that of Wiley. The same evidence was germane to both offenses and to the prosecutions of both defendants. The confessions of Wiley were carefully redacted to eliminate any reference to Waters. There was no abuse of the trial judge's discretion and no error. As to Wiley's argument that only one offense was committed in the simultaneous robbery of the two men, he faces the insurmountable obstacle of precedents explicitly holding to the contrary. Wilkerson v. State, 211 Tenn. 32, 362 S.W.2d 253 (1962); Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967).
Both Wiley and Waters assign error upon the trial judge's ordering their respective two sentences to be served consecutively. Unquestionably he had the right and authority to do so. T.C.A. § 40-2711 explicitly so provides, and also provides that the trial judge's action in that respect shall be reviewable. Our Supreme Court, in the case of Gray v. State of Tennessee, 538 S.W.2d 391, filed at Jackson of June 1, 1976, for publication, laid down standards for the making of this judgment by the trial judge, and specifically directed that in all cases the record shall be made to reflect the reasons for the ruling. This record does not contain an expression by the trial judge of his reason or reasons, and under the authority of Gray we would usually be required to remand the case with instructions to the trial judge to include in the record those factors which he considered in ordering the sentences to be served consecutively. The obvious reason for this lack of compliance with the mandates of Gray is that this trial was held on November 18, 1975, more than six months before Gray was filed.
We hold that in this instance the reasons for the ruling are both obvious and sufficient, making a remand unnecessary. Where it appears that one is a dangerous offender the sentences may properly be made consecutive. Our Supreme Court, in Gray, said:
A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently dangerous are involved should be based upon the presence of aggravating circumstances, and not merely on the fact that two or more dangerous crimes were committed.
In the case at bar, it was totally unnecessary to the purposes of robbery for the helpless and unresisting victims to be hurt, and yet each was struck a vicious blow to the head. Oakley was pronounced dead by one of the robbers before a like blow was delivered in cold blood to Kenyon. It would be an exercise in exercising for us to remand this record to the trial judge for him to state reasons, since aggravating circumstances manifestly appear.
Wiley assigns as error the admission into evidence of his inculpatory statement, claiming that it was involuntarily given. This same contention was made upon the trial and a jury-out hearing was conducted by the trial...
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...1980); State v. Branch, 223 Kan. 381, 573 P.2d 1041 (1978); Wilkerson v. State, 211 Tenn. 32, 362 S.W.2d 253 (1962); Wiley v. State, 552 S.W.2d 410 (Tenn.Cr.App., 1977); 67 Am.Jur.2d, Robbery, Sec. 77, p. 71. The constitutionality of punishing the combination of two thefts with two assaults......
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...the fact that the record contains no transcripts of the bond hearings and argues that the matter is not reviewable. Wiley v. State, 552 S.W.2d 410, 413 (Tenn.Cr.App.1977). While it is true that there is very little in the record for us to review, we would point out that under Art. 1, § 15 o......
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