McCloudy v. State

OPINION

RUSSELL, Judge.

The plaintiff-in-error, James Henderson McCloudy, indigent and represented by appointed counsel, was indicted for the offense of robbery with a deadly weapon, tried before a Hamilton County jury and found guilty of simple robbery. He was sentenced to imprisonment for not less than five nor more than ten years.

Briefly stated, the evidence shows that a man approached the attendant of a Chattanooga parking lot at about 10:00 p. m., pulled something from his pocket which the attendant took to be a knife, and demanded the money in the cash drawer. The robber put the object back in his pocket but the attendant, who was afraid, gave the robber $89.62. As soon as the robber had fled, the attendant reported the incident to his manager and the police.

There are six assignments of error, but in our view, the final assignment alone is sufficient to require a new trial. Plaintiff-in-error contends that the trial court erred in responding to a question by the jury by saying that the jury could take the defendant’s past record into consideration in determining the penalty.

The Bill of Exceptions shows that after deliberating for some time, the jury returned into open court and the following exchange was had:

“A Juror: If found guilty should the record be taken into consideration in determining penalty?

“The Court: In answer to the question by the jury, the Court charges further, that the jury may take into consideration any evidence that -has been presented to it during the trial, in reaching its verdict, and if a verdict of guilty, in setting a penalty.”

The “record” referred to was evidence of past crimes plaintiff-in-error had committed which was used to impeach his credibility as a witness. It seems clear that the juror was inquiring if plaintiff-in-error’s past criminal record was to be taken into consideration in the fixing of his punishment, and that the trial judge’s response was in the affirmative. Of course, evidence of past crimes could only properly be considered on the issue of credibility as a witness. Peck v. State, 86 Tenn. 259, 6 S.W. 389. Hence, error was committed.

It is true that the trial judge made a statement to the jury, upon ruling on an objection to argument about prior convictions, that the jury should consider such evidence only upon the issue of credibility. The above-quoted query from the jury was made after this ruling, so the passing instruction was obviously not understood. The answer given could not help but lead the jury to believe that all evidence heard could be considered, on both the questions of guilt and punishment.

The State suggests that the defendant was not prejudiced, so the error, if any, was harmless.

If we can assume that at the time of the inquiry the fact of guilt had already been decided, we could perhaps render the error harmless by reducing the punishment to a flat five (5) years, subject to the State’s acceptance of that alternative to a new trial. But we cannot say that guilt had already been decided, uninfluenced by this instruction, because the juror prefaced his query with: “If found guilty . ” and the trial judge responded: “ . . . the jury may take into consideration any evidence that has been presented to it during the trial, in reaching its verdict, and if a verdict of guilty, in setting a penalty”. Our Supreme Court has recently dealt with the question of whether error in a case went only to the question of punishment. See Collins v. State, Tenn., 504 S. W.2d 753. The Court said:

“ . . . But, it was for the jury to consider all of the evidence going to the merits of the case and innocence or guilt of the accused goes to the merits of a criminal case. The Court is not permitted to poll the jurors to ascertain if incompetent evidence did, in fact, influence the decision of the jury. The test is, could it have influenced the decision of the jury ?

“[3] . . . [W]e, after an examination of the whole record, are unable to say that the prejudicial error went only to the question of punishment.” (Emphasis added.)

We take the same position in this case. We find the instruction to be erroneous and misleading, and cannot say that its effects were limited to the amount of punishment fixed.

There remain several other assignments of error to be considered. Plaintiff-in-error contendso that the trial court erred in allowing a “portion” of a police officer’s file relating to a line-up identification of plaintiff-in-error to be introduced into evidence. The “portion” referred to was a photostatic copy of a police form showing the names and descriptions of participants in the line-up in which McCloudy was identified. The record also contained the name and address of the witness who picked out McCloudy positively. Defense counsel made the statement that he had no objection to the line-up itself, but felt the record was not relevant. We cannot agree, since a large part of the defense of this case was one of mistaken identity, and the line-up record shows the positive identification of the witness and the absence of any suggestiveness in the line-up. The line-up record was properly admitted into evidence by the trial court.

The next assignment of error complains of the trial court’s failure to limit the State’s inquiry about previous convictions of plaintiff-in-error too far removed in time or by the nature of the offense as to affect his credibility.

The general rule is that when a defendant elects to place himself on the stand as a witness, he can be treated in all respects as any other witness, and may be impeached by cross-examination as to former convictions that involve moral turpitude. Brooks v. State, 187 Tenn. 67, 213 S.W. 207. This rule is subject to the limitation that the convictions be not too remote in time. Cooper v. State, 123 Tenn. 37, 138 S.W. 826. Defense counsel first tried to limit the scope of such anticipated cross-examimation; and, failing therein, introduced the complained of prior record on direct, in an attempt to lessen its effect. Upon retrial any cross examination of the defendant, should he choose to testify, and not introduce the whole prior record himself, should be kept within the often ephemeral bounds of moral turpitude and remoteness.

We find no merit in plaintiff-in-error’s contention that the trial court erred in instructing the jury not to consider the death penalty in this case due to a recent Supreme Court ruling. No prejudice resulted from this statement, as is evidenced by the fact that the jury found McCloudy guilty of robbery when he was charged with armed robbery.

Plaintiff-in-error next complains of the use of the phrase “substantial doubt” in explaining the concept of reasonable doubt to the jury. We have considered this alleged error in light of the charge as a whole and find that the jury was properly instructed.

The remaining assignment of error questions the legal sufficiency of the convicting evidence, but in view of our decision to order a new trial, no comment thereon need be made. Martin v. State, 1 Tenn.Cr.App. 282, 440 S.W.2d 624.

The judgment of the trial court is reversed and the case is remanded for a new trial.

O’BRIEN, J., concurs.