Marsh v. StateMarsh v. State
- Reporters:
- ,
- Before:
- Byers
OPINION
BYERS, Judge.Thе Appellant was convicted of the burglary of an automobile for which the jury fixed the punishment at not less than three (3) years nor more than six (6) years and he was also found to be an habitual criminal and was sentеnced to life imprisonment.
The Appellant says the in-court identification of him was based on an improper lineup and was not therefore admissible; that the State failed to furnish the names of witnesses prеsent when oral statements were made by the Appellant as required by
On February 10, 1976, Steve Beam and his wife, Helen Beam, drove to the Radio Shack located in the Eastgate Shopping Center in Hamilton County. The purpose of the trip was to purchase a resistor, which is a device to eliminate automobile alternator noise on citizen band radios. Beam had installed a CB radio on his vehicle just prior to going to the shopping center. He and his wife entered the Radio Shack and purchased a resistor. As they were returning to their vehicle, they observed someone in
The issue of the in-court identification and the claim that the evidence preponderates against the verdict are inextricably mingled because the preponderance of the evidence issue depends upon whether there was a proper and sufficient identification of the Appellant as the perpetrator of this crime.
The identification of the Appellant by Mr. Bеam at the pool hall does not constitute an impermissible lineup so as to make the identification unduly suggestive or give rise to any substantial likelihood of irrepressible misidentification. Mr. Beam’s identification of the Appellant was based upon his observation of him at the time the crime was being committed. Further, when he saw the Appellant alight from the vehicle in front of the pool hall he recognized him as thе same person. When the police arrived at the pool hall to continue their investigation, the identification of the Appellant by Beam was a reaffirmation of what he had already observеd. There was no lineup conducted. There is no showing that the identification by Beam at the pool hall was rigged or planned. The in-court identification of the Appellant by Steve Beam was not improper as this was based on his observation of the Appellant at the time of the commission of the crime and his observation of him at the pool hall shortly thereafter when he located the Appellant on his own initiative. Rippy v. State, 550 S.W.2d 636 (Tenn.1977). See also, Kelley v. State, 478 S.W.2d 73 (Tenn.Crim.App.1972).
The viewing of the Appellant at the jail by Helen Beam is a significantly different set of circumstances. As set out in the resumé of the facts at the beginning of the opinion, Mrs. Beam was taken to the statiоn house where she viewed the Appellant, a black man, who was in a room with only a white police officer. One-to-one lineups are condemned and their use is highly suspect.
Stovall
v.
Denno,
388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967);
Biggers v. Tennessee,
390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). In the case of
Donnie Russell Bradford v. State,
Court of Criminal Appeаls No. 47, filed February 18, 1977 at Knoxville, this Court in an opinion by Judge Daughtrey held that in the absence of imperative circumstances, the presenting of a single suspect to a witness is proscribed. In this case, the reasоn for not conducting a lineup was because not enough black people could be found to form a lineup. We find this not to be an imperative circumstance. We are reasonably certаin a
In the trial of this case, no issue was raised questioning whether the burglary of the Beam automobile occurred. The automobile was entered and the only issue was whether the Appellant was the perpetrator of the crime. This question of fact was for the jury to determine. The jury determined this adversely to the Appellant. The evidence supports the finding of the jury. The Appellant has failed to show that the evidence preponderates against the verdict. Webster v. State, 425 S.W.2d 799 (Tenn.Crim.App.1967).
One of the investigating officers testified that the Appellant said he had been driving the vehicle which was identified by Beam as the one in which the perpetrator of the crime left the Eastgate Shopping Center. The Appellant says the introduction of this statement was contrary to the provisions of
The Appellant had made a motion requesting сopies of any written statements and the substance of any oral statements along with the names of witnesses to whom, or in whose presence, any oral statements had been made. The Appellant’s сounsel had not been advised of those statements.
The statement by the Appellant connecting himself with the vehicle was an integral part of the identification evidence for the jury to consider and it wаs, as we view the evidence, a statement against interest. The provisions of
The issue conсerning the introduction of the statement thus becomes whether the introduction of the statement was harmless error. We are of the opinion that it was.
Steve Beam testified without objection concerning a claim of ownership of the vehicle which he says the Appellant made to .the officers. The connection of the Appellant with the vehicle was already before the jury without objection. In аddition, the positive identification of the Appellant by Steve and Helen Beam makes it improbable that the jury would have reached a different verdict if the statement had been excluded. O’Dear v. State, 516 S.W.2d 622 (Tenn.1974). Further, Appellant did not object to the testimony of the officer at the time it was given. After the State had rested, the Appellant then moved for a mistrial because of the testimony. Counsel did not request the trial court to instruct the jury to disregard the testimony. The failure of the Appellant to object to the evidence when offered, or to request the trial court to withdraw the evidence from the jury’s consideration waives аny objection to its admission. Crawford v. State, 4 Tenn.Cr.App. 142, 469 S.W.2d 524 (1971).
The Appellant’s complaint that the trial court refused to instruct the jury that under
The Appellant says the Habitual Criminal Statute —
We are of the further opinion that the claim that the statute gives the district attorney generals arbitrary authority to select those who will be prosecuted as an hаbitual criminal in violation of the Equal Protection Clause of the Constitution should be rejected. We are aware that many persons who qualify for prosecution under this statute are not prosecuted thereunder. However, it is irrelevant that other persons subject to being thus prosecuted, were not indicted and tried as an habitual criminal. Brown v. State, 1 Tenn.Cr.App. 462, 445 S.W.2d 669 (1969).
The judgment of the trial court is affirmed.
O’BRIEN and OLIVER, JJ., concur.