Johnson v. StateJohnson v. State
- Reporters:
- ,
- Before:
- Daughtrey
OPINION
’ DAUGHTREY, Judge.This is an appeal by Bobby Johnson from his conviction of second degree burglary, for which he received a sentence of not less than three nor more than ten years in the state penitentiary. After a careful review of the record, we conclude that none of the issues raised on appeal entitles the defendant to a new trial, and we affirm the .conviction.
Johnson was indicted for first dеgree burglary of the “mansion-house of Michael J. Wines,” and petit theft of Wines’ wallet and its contents. The proof showed that on May 20, 1976, Wines was occupying room 226 at the Quality Inn Motel in Memphis, Tennessee. On awakening at approximately 6:15 A.M., he was immediately aware that “something was wrong in the room.” Rousing himself, he looked toward the end of the bed and saw a man crawling across the carpet on his hands and knees. He testified that the draperies in the room were open and that there was enough light to view the face of the intruder, who looked at him and then ran out of the room. Wines started to follow, but then realized that he “wasn’t dressed for the chase.” He took time to pull on jeans, but by the time he finally reached the hall, there was no sign of the intruder. However, Wines did see another man knocking on a nearby door. This individual told Wines he thought that someone had just gotten onto the elevator. Wines took the elevator to the lobby; there the nightclerk reported that no one had recently left the motel. Warning the clerk “not to let anyone out,” Wines returned to the elevator and stopped at every floor, looking for the burglar. On the fifth floor Wines spotted the intruder, standing in the hall with the man Wines had seen earlier on the second floor. Confronted by Wines, the two men ran down the hall and into the stairwell.
Wines returned to the lobby and was told that someone had just run out of the motel. He went out the front door in time to see one of the two men, not the burglar, backing a white Cadillac out of the motel lot. Police officers arrived simultaneously, and they pursued the Cadillac onto the interstate, stopping it abоut a mile from the motel. The police arrested the driver, De-loy Polk, and brought him back to the motel.
Polk told officers that he had come to the motel át the request of Bobby Johnson, the occupant of room 222. Officers went to that room, knocked on the door, and were let inside by the defendant. Soon after-wards, Wines was brought to room 222, where he identified Johnson as the man he had seen in his room earlier that morning. Wines also pointed out to officers a bright pink leisure suit that he said the defendant was carrying when he saw him with Polk on the fifth floor of the motel.
Polk was jointly indicted with Johnson, but his case was severed and he pleaded guilty to burglary and larceny in 1977. On July 18, 1978, three days before Johnson’s trial was to begin, Polk appeared in court
Johnson’s attorneys moved for a continuance on the first morning of trial. They contended that they had had insufficient notice of the proposed accomplice testimony to prepare to meet it. They also argued that the State had deliberately covered up the fact that Polk would be called to testify.
The trial judge denied the mоtion for a continuance, and we think his ruling was correct. The record refutes any allegation of improper conduct by the prosecutor. It appears that he was unaware of the existence of Polk’s probation petition until the docket call on July 18, because Polk’s attorney did not give notice to the District Attorney’s office. Furthermore, the defendant cannot claim surprise, because the witness in question was a co-defendant whose identity had been known to Johnson for two years prior to trial. Moreover, although the prosecutor served notice of his intent to call Polk as a witness at the earliest opportunity, Polk refused to talk to defense attorneys at any length or to give them a recorded statement. They nevertheless were able to secure a transcript of the testimony Polk gave at his July 18 probation hearing and used it effectively to impeach his testimony as Johnson’s July 31 trial. It thus appears from the record that the defendant suffered no actual prejudice from the failure to grant a continuance, and we further find that he has failed to demonstrate that he “did not have a fair trial [or] that a different result would or might reasonably have been reаched had there been a different disposition of the application for a continuance.” Maxwell v. State, 501 S.W.2d 577, 580 (Tenn.Cr.App.1973). We therefore hold that the trial judge did not abuse his discretion in denying the defendant’s motion for a continuance. See generally, Steele v. State, 4 Tenn.Cr.App. 70, 467 S.W.2d 838 (1970).
Polk testified for the State that Johnson telephoned him at approximately 5:30 A.M. on the day of the burglary and told him that he had “gotten into a, little trouble at the motel” and wanted him to come to the Quality Inn. After Polk arrived at the motel, Johnson told him he had been “caught in a man’s room and needed a way to get away from over there.” Polk testified that he did not want to get involved and told Johnson so. But, he said before he could leave the motel, he was seen by Wines, and as a result, he was subsequently arrested by Memphis police officers.
Although there were discrеpancies in Polk’s testimony, when it is viewed in the light most favorable to the State and weighed in conjunction with Wines’ in-court identification of Johnson as the man he saw in his motel room, we think the evidence is clearly sufficient to sustain the defendant’s conviction of second degree burglary. 1 Certainly we are unable to say that “no rational trier of fact could find proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560, 576 (1979); see also Tennessee Rules of Appellate Procedure, Rule 13(e). It follows that the trial judge was correct in overruling the defendant’s motion for acquittal and that the evidence is sufficient to support the judgment below. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978).
Nor do we find any merit to the defendant’s contention that the State failed to satisfy the requirement of the statute
Likewise without merit is the argument that the State failed to prove venue in this case. Wines testified that he “believed” the Quality Inn was located in Shelby County, Tеnnessee. Furthermore, one of the investigating officers and the co-defendant, Deloy Polk, both testified unequivocally that the motel where the burglary occurred was located in Shelby County. This was clearly a sufficient factual basis to support the jury’s finding with regard to venue.
Next the defendant contends that the judgment must be reversed and the indictment against him dismissed because of a fatal variance betweеn the proof and the allegation in the indictment that he burglarized Wines’ “mansion-house.” Wines testified that in May 1976 he was a legal resident of Bethel, Connecticut, and that he was staying at the Quality Inn while in Memphis on business. The defendant insisted at trial that only one’s legal residence qualifies as a “mansion-house” and that the proof therefore failed to establish the allegation contained in the indictment.
In response, the State relied on this Court’s opinion in Wyatt v. State, 4 Tenn.Cr.App. 1, 467 S.W.2d 811, 814 (1971), in which we hеld that “a hotel room under the facts and circumstances of [the Wyatt] case is a dwelling house and that the breaking and entering the hotel room of another by night with intent to commit larceny, is burglary in the first degree.” 2 According to the Wyatt opinion, “[a] dwelling house has been variously defined as the apartment, room in a hotel, building, or cluster of buildings, in which a man with his family resides, or any permanent building in which a party may dwell and lie.” 467 S.W.2d at 814, quoting 13 Am.Jur. Burglary 321, 322. Although it was apparently a case of first impression in this state, Wyatt was clearly in line with Tennessee law, which has long recognized that “every house or permanent edifice for the dwelling or habitation of man is taken to be a mansion-house, in which burglary may be committed. . .” Armour v. State, 22 Tenn. (3 Humph.) 379, 383-4 (1842).
The defendant does not dispute the fact that under
Wyatt
the State may properly prove that the premises allegedly burglarized consisted of a motel room. However, he insists that if the State intends to
prove
the burglary of a motel room, the State must specifically
plead
thе burglary of a motel room. In support of this contention, the defendant relies on the express language in the first and second degree burglary statutes,
We recognize that Tennessee follows a rather stringent variance rule. Our courts have held, for example, that while
But in this case, we conclude that “thing necessary to be mentioned” was not described “with greater particularity than is requisite,” and thus the variance rule is inapplicable. The trial judge ruled that the failure to specify in the indictment the type of dwelling allegedly burglarized was not fatal to its validity. We agree with this conclusion, based upon our reading of the third degree burglary statute,
In
Moreover, we note that the defendant in this case had actual written notice of the specific “mansion-house” which, thе State proposed to prove at trial. The record shows that on July 18, 1978, the State filed a motion to compel the defendant to provide notice of alibi defense under Rule 12.1 of the Tennessee Rules of Criminal Procedure.
5
Pursuant to subsection (a) that rule, the State advised the defendant in its motion that “the alleged offense was committed at the Quality Inn Motel, Room 226, 5877 Poplar Avenue, Memphis, Tеnnessee, on May 20, 1976, around or about 6:15 а. m.”
6
Given the fact of actual notice, and in the absence of any allegation or indication that the indictment was not sufficiently drafted so as to provide the defendant with the ability to plead
autrefois convict
or
autrefois acquit,
should he be charged with the same offense in the future, we find that there was no prejudice to the defendant
Nor do we find any merit to the remaining points raised by the defendant on appeal. Johnson complains that the trial court “erred in refusing to order witness Michael J. Wines to give a pretrial statement.” However, there is no written or verbal order in the reсord memorializing such a ruling by the trial court, and we are unable to review the question on appeal. While we endorse the position taken in the ABA Standards Relating to the Prosecution and the Defense Function Section 4.3(c) and concur with the defendant that it is “improper for a prosecutor ... to suggest to a witness that he not submit to an interview by opposing counsel,” id., Comment to Section 4.3, we find that thе record in this case is devoid of proof that the prosecutor or the trial judge acted other than in accordance with these standards.
The one-on-one confrontation between the defendant and the victim, arranged for the express purpose of identification, was not unconstitutional, because it was an on-the-scene investigatory procedure, instituted shortly after the offense occurred. Russell v. State, 489 S.W.2d 535 (Tenn.Cr.App.1972); Bracken v. State, 489 S.W.2d 261 (Tenn.Cr.App.1972). Furthermore, the trial judge, utilizing the standards set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), found that the victim’s in-court identification was based on his observation of the defendant at the time the offense occurred and properly held that it did not violate due process.
The defendant contended at trial that the pink suit introduced against him was the product of an invalid search and seizure, occurring on the heels of his illegal arrest. The record fails to bear out this contention. The trial judge ruled that the police had probable cause to investigate the defendant’s complicity in the burglary, based on the victim’s identification of Deloy Polk and Polk’s statement implicating Johnson. Under the Tennessee Supreme Court’s analysis and ruling in State v. Goad, 549 S.W.2d 377 (Tenn.1977), we reach the same conclusion.
The defendant next asserts that the trial judge erred in refusing to permit the introduction of Winеs’ prior statement to police as a means of impeaching his trial testimony. The trial judge correctly ruled that only those parts of the statement which were in fact contradictory could be introduced to impeach Wines’ testimony, since the statement itself would be hearsay if offered for substantive purposes. See generally E. Cleary,
McCormick on Evidence
§ 251 (2d ed. 1972); D. Paine,
Tennessee Law of Evidence
§ 195 (1974). There were no inconsistencies between Wines’ stаtement and his trial testimony, but defense counsel contended that because the victim failed to include a description of the burglar’s clothing in his pretrial statement to police, the entire statement became admissible to impeach his description of the burglar elicited on cross-examination. The State now argues in response that a prior statement may be rendered inconsistent for impeachment purposes if it fails to mention a
material
circumstance included in the witness’s trial testimony; the test is whether the trier of fact might reasonably find that a witness testifying sincerely would have been unlikely to have made a prior statement containing such an omission.
McCormick on Evidence, supra,
§ 34. As the
Nor do we find any abuse of discretion in the trial judge’s ruling under State v. Morgan, 541 S.W.2d 385 (Tenn.1976), that the defendant’s many prior convictions dating back to 1950 were admissible to impeach his testimony, even though some of them may have fallen outside Morgan’s ten-year rule. That rule prohibits evidence of a witness’s prior convictions if more than ten years have passed since the date of conviction or release from confinement, “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” 541 S.W.2d at 389. At a hearing outside the jury’s presence, the trial judge found that the defendant’s lengthy criminal record indicated a continuing course of criminal conduct which was probative of his credibility. He therefore held that all of Johnson’s prior felony convictions for burglary and larceny were admissible under Morgan. We fail to find any abuse of discretion under the “specific facts and circumstances” of this case.
Finally, we hold that the trial court’s chаrge to the jury on reasonable doubt was full and correct, and that he did not err in refusing to deliver the defendant’s specially requested instructions. See Crumsey v. State, 3 Tenn.Cr.App. 285, 460 S.W.2d 858 (1970); Hall v. State, 200 Tenn. 436, 292 S.W.2d 716 (1956). Nor do we find that, the prosecutor violated the defendant’s right to remain silent by asking Deloy Polk about his motivation in pleading guilty to the same charges as those being contested by the defendant. The record fails to substantiate the defendant’s contention that the jury would necessarily have drawn the conclusion that the defendant had failed to testify in order to avoid the introduction of his prior criminal record. The jury was specifically instructed that they were to draw no inference whatsoever from the defendant’s decision to exercise his right not to testify. The law presumes, in the absence of proof to the contrary, that the jury followed the trial сourt’s instruction. Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1974).
Our review of the record convinces us that the defendant received a fair trial. Finding no error, we affirm the judgment of the trial court.
WALKER, P. J., and O’BRIEN, J., concur.
Notes
. The trial judge granted the defendant’s motion for acquittal of first degree burglary, finding that there was insufficient proof that the’ offense was committed in the nighttime. Compare
. There is no dispute that the term “mansion-house” is synonymous with the term “dwelling house” for purposes of the burglary statute. The terms have been used interchangeably in Tennessee law at least since the time of Armour v. State, 22 Tenn. (3 Humph.) 379 (1842).
. Acts 1971, Ch. 2, §§ 1, 2.
. However, we would also note that a more particularized description of the place alleged to have been burglarized would have been valid under the 1971 amendment. Had the State elected to describe the burglarized premises more specifically, it would then have been incumbent upon the State to prove the allegation “exactly as described in the indictment.” Martin v. State, supra, at 641. To do otherwise, in the hypothesized situation, would have required the application of the variance rule and dismissal of the indictment.
. The defendant contends that the Court improperly granted the State’s Rule 12.1 motion, on the ground that the new Rules do not apply to a case in which the indictment was returned prior to their effective date. Since there was no alibi defense interposed in this case, we find the issue to be moot.
. While a variance between the pleadings and the proof ordinarily need not be raised until all the proof is in, where the defendant is put on notice prior to trial of a possible variance, we think it is incumbent upon him to raise the matter prior to trial. It is fundamental that alleged errors should be brought to the trial court’s attention at the earliest opportunity.