State of Tennessee v. Terry Wayne Hayman ( 1999 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON             FILED
    MAY 1999 SESSION
    July 7, 1999
    Cecil Crowson, Jr.
    Appellate Court Clerk
    STATE OF TENNESSEE,                  )
    )    NO. 02C01-9811-CC-00354
    Appellee,                      )
    )    DYER COUNTY
    VS.                                  )
    )    HON. J. STEVEN STAFFORD,
    TERRY WAYNE HAYMON,                  )    JUDGE
    )
    Appellant.                     )    (Aggravated Robbery)
    FOR THE APPELLANT:                        FOR THE APPELLEE:
    G. STEPHEN DAVIS                          PAUL G. SUMMERS
    District Public Defender                  Attorney General and Reporter
    H. TOD TAYLOR                             R. STEPHEN JOBE
    Assistant District Public Defender        Assistant Attorney General
    P. O. Box 742                             Cordell Hull Building, 2nd Floor
    208 North Mill Avenue                     425 Fifth Avenue North
    Dyersburg, TN 38025-0742                  Nashville, TN 37243-0493
    C. PHILLIP BIVENS
    District Attorney General
    JAMES E. LANIER
    Assistant District Attorney General
    115 East Market Street
    P. O. Drawer E
    Dyersburg, TN 38025-2005
    OPINION FILED:
    AFFIRMED
    JOE G. RILEY,
    JUDGE
    OPINION
    Defendant, Terry Wayne Haymon, appeals as of right his convictions by a
    Dyer County jury on three counts of aggravated robbery. Honorable J. Steven
    Stafford sentenced the defendant to concurrent terms of thirty years as a career
    offender. The following issues are presented for our review:
    1. whether the evidence is sufficient to support the
    convictions;
    2. whether the defendant was improperly denied his
    right to a preliminary hearing; and
    3. whether the defendant was properly sentenced as
    a career offender.
    After a careful review of the record, we AFFIRM the judgment of the trial court in
    all respects.
    FACTS
    The state’s proof revealed that just prior to midnight on September 25, 1996,
    Vandy Taylor, Warren Weddle, Lamar Weddle, Ralph Weddle and Jonathan Parr
    were talking on Parr’s front porch. They were approached by two men, one short
    and one tall, both of whom were dressed in black and wearing masks. The short
    man had a pistol, and the tall man had a sawed-off shotgun. Taylor and Warren
    Weddle, fearful of the encounter, fled unscathed. The two gunmen then robbed
    each of the remaining trio of various amounts of cash.
    Taylor, who fled the scene upon seeing the masked gunmen, had a pistol in
    his pocket. He dropped the pistol while running behind Parr’s residence. When he
    finally recovered the pistol, he noticed the two gunmen running in his direction.
    Taylor shot at the short gunman several times. Taylor then ran back to Parr’s
    residence frantically exclaiming that he had shot one of the gunmen. Indeed, he
    had.
    Angela Tipton, Parr’s neighbor, testified that she observed a short man and
    a tall man come out of Parr’s residence. She, Ralph Weddle, and Parr each
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    testified that the short gunman was the same size as the defendant. Lamar Weddle
    testified that he knew the defendant and told the authorities that the short gunman
    looked like the defendant before defendant’s name was ever mentioned.
    Bernard Cork testified that the wounded defendant knocked on his door
    around midnight on the night of the robbery, and Cork took him to the hospital. On
    the way to the hospital, the defendant directed Cork to stop at a particular location
    so the defendant could pick up some items by the side of the road. The defendant
    picked up some “balled up” money.
    Less than one-half hour after the robbery, the authorities discovered that
    defendant was being treated for a gunshot wound in the emergency room of the
    local hospital. The defendant told the authorities that he had been robbed, made
    to strip and was shot while he escaped. He denied being at Parr’s residence. None
    of his clothing was found at the location described by the defendant.
    Defendant gave a subsequent statement in which he claimed he was robbed
    near Parr’s residence when he happened upon the robbery in progress. He stated
    he was shot as he fled. The authorities recovered the defendant’s black pants,
    black socks and tennis shoes from a culvert where they were hidden.
    Based upon the evidence introduced at trial, the jury predictably convicted
    the defendant on all three counts of aggravated robbery. Defendant now appeals.
    SUFFICIENCY OF THE EVIDENCE
    Defendant contends the evidence is insufficient to support his convictions
    due to the lack of a positive identification of the defendant as the perpetrator of the
    aggravated robberies.      When an accused challenges the sufficiency of the
    evidence, this Court must review the record to determine if the evidence adduced
    during the trial was sufficient "to support the findings by the trier of fact of guilt
    beyond a reasonable doubt." Tenn. R. App. P. 13(e). In determining the sufficiency
    of the evidence, this Court does not reweigh or reevaluate the evidence. State v.
    Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn.1978); nor may this Court substitute its
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    inferences for those drawn by the trier of fact from circumstantial evidence. Liakas
    v. State, 
    199 Tenn. 298
    , 305, 
    286 S.W.2d 856
    , 859 (1956). To the contrary, this
    Court is required to afford the state the strongest legitimate view of the evidence
    contained in the record as well as all reasonable and legitimate inferences which
    may be drawn from the evidence. State v. Tuttle, 
    914 S.W.2d 926
    , 932 (Tenn.
    Crim. App.1995).
    Although the evidence of the defendant’s guilt is circumstantial in nature,
    circumstantial evidence alone may be sufficient to support a conviction. State v.
    Tharpe, 
    726 S.W.2d 896
    , 899-900 (Tenn. 1987); State v. Gregory, 
    862 S.W.2d 574
    , 577 (Tenn. Crim. App. 1993); State v. Buttrey, 
    756 S.W.2d 718
    , 721 (Tenn.
    Crim. App. 1988). However, the circumstantial evidence must be consistent with
    the guilt of the accused, inconsistent with innocence, and must exclude every other
    reasonable theory or hypothesis except that of guilt. 
    Tharpe, 726 S.W.2d at 900
    .
    In addition, “it must establish such a certainty of guilt of the accused as to convince
    the mind beyond a reasonable doubt that [the defendant] is the one who committed
    the crime.” 
    Tharpe, 726 S.W.2d at 900
    (quoting Pruitt v. State, 
    460 S.W.2d 385
    ,
    391 (Tenn. Crim. App. 1970)).
    While following the above guidelines, this Court must remember that the jury
    decides the weight to be given to circumstantial evidence and that “[t]he inferences
    to be drawn from such evidence, and the extent to which the circumstances are
    consistent with guilt and inconsistent with innocence are questions primarily for the
    jury.” Marable v. State, 
    313 S.W.2d 451
    , 457 (Tenn. 1958); see also State v.
    
    Gregory, 862 S.W.2d at 577
    .
    Viewing the evidence in a light most favorable to the state, as we must, the
    evidence is more than sufficient to support the convictions. Three witnesses
    testified that the short gunman was similar in size and build to the defendant.
    Lamar Weddle believed the short gunman was, in fact, the defendant. Taylor shot
    one of the perpetrators immediately following the robbery, and defendant was
    treated for a gunshot wound within thirty minutes of the robbery. The defendant’s
    statements were inconsistent. It was for the jury to determine the credibility of the
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    witnesses and the strength of the circumstantial evidence, the latter of which was
    overwhelming. The evidence clearly was sufficient to support the guilty verdicts.
    This issue is without merit.
    PRELIMINARY HEARING
    Defendant contends he was wrongfully deprived of his right to a preliminary
    hearing. We respectfully disagree.
    A. Procedural History
    At the hearing in the trial court, the facts were undisputed. Defendant was
    arraigned on September 30, 1996, in the Dyersburg City Court, which has state
    jurisdiction. The preliminary hearing was set for October 4th if the defendant did not
    make bond; otherwise, the hearing would be November 8th. The defendant made
    bond; however, there were no proceedings on November 8th, apparently due to
    absence of the municipal judge. The preliminary hearing was rescheduled for
    November 15th.
    On November 15th, the preliminary hearing was rescheduled for January 16,
    1997, since the lead investigator had suffered a heart attack. In the interim, the
    Dyer County Grand Jury convened in December 1996; however, the state did not
    seek an indictment.
    On January 16, 1997, the defendant did not appear. The state and defense
    counsel ascertained that the defendant’s parole had been revoked, and he was in
    custody. The preliminary hearing was rescheduled for February 10th.
    On the morning of February 10th the Dyer County Grand Jury met in regular
    session and returned an indictment on these offenses. The preliminary hearing
    was, therefore, not conducted.
    Based upon this evidence, the trial court found no bad faith by the state and
    denied defendant’s motion.
    5
    B. Bad Faith Analysis
    Tenn. R. Crim. P. 5(e) provides as follows:
    Any defendant arrested prior to indictment or
    presentment for any offense, whether a misdemeanor
    or felony, except small offenses, shall be entitled to a
    preliminary hearing upon the defendant’s request
    therefor, whether the grand jury of the county be in
    session or not.
    If the defendant is indicted during the period of
    time in which the preliminary hearing is being continued,
    or at any time before accused has been afforded a
    preliminary hearing on a warrant, whether at his own
    request or that of the prosecutor, he may dismiss the
    indictment upon motion to the court. Provided,
    however, that no such Motion to Dismiss shall be
    granted after the expiration of thirty days from the date
    of the defendant's arrest (emphasis added).
    The Tennessee Supreme Court in Moore v. State, 
    578 S.W.2d 78
    (Tenn.
    1979), created an exception to the thirty-day rule. In Moore, our supreme court held
    that:
    the 30-day limitation is applicable only when all parties
    -- including the defendant, who must act promptly --
    have acted in good faith and in compliance with the
    statute. The failure of the court or the prosecution to
    exercise good faith and to abide the law operates to toll
    the statute and preclude its invocation.
    
    Id. at 82.
    Bad faith may be defined as the state of mind involved when one is not being
    faithful to one's duty or obligation. State v. Golden, 
    941 S.W.2d 905
    , 908 (Tenn.
    Crim. App. 1996). The duty of a prosecutor is twofold. In one instance, the
    prosecutor is the guardian of the state's interest. At the same time, the prosecutor
    is the protector of the rights of the accused. 
    Id. At all
    times, the prosecutor's goal
    remains, not that he or she shall win a case, but that justice shall be done. See
    Berger v. United States, 
    295 U.S. 78
    , 88, 
    55 S. Ct. 629
    , 633, 
    79 L. Ed. 1314
    (1935);
    State v. Spurlock, 
    874 S.W.2d 602
    , 611 (Tenn. Crim. App. 1993).
    We agree with the trial court’s finding that the state has not exhibited bad
    faith. The defendant was arrested in September 1996 and, through no bad faith on
    the part of the state, had not received a preliminary hearing by the time the Dyer
    County Grand Jury met in February 1997. In fact, the state did not seek an
    6
    indictment in December 1996 when the grand jury convened. The state’s election
    to proceed by indictment in February 1997 was not a display of bad faith.
    This issue is without merit.
    SENTENCING
    Finally, defendant contends he was improperly classified as a career
    offender. Again, we disagree.
    Defendant was convicted on three counts of aggravated robbery, Class B
    felonies. Tenn. Code Ann. § 39-13-402(b). The proof at the sentencing hearing
    revealed that defendant had seven prior convictions for Class C felonies committed
    on different dates.   A defendant convicted of a Class B felony who has a
    combination of six or more Class A, B or C prior felony convictions is a career
    offender. Tenn. Code Ann. § 40-35-108(a)(1). Thus, defendant’s seven prior Class
    C felony convictions qualify him as a career offender.
    This issue is without merit.
    CONCLUSION
    Based upon our review of the record, we find no error committed by the trial
    court and AFFIRM the judgment in all respects.
    ____________________________
    JOE G. RILEY, JUDGE
    CONCUR:
    ____________________________
    JOHN H. PEAY, JUDGE
    ____________________________
    THOMAS T. WOODALL, JUDGE
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