State v. Ira Barber

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
July 24, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9707-CR-00255
Appellee, )
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN,
IRA BARBER, ) JUDGE
)
Appellant. ) (Aggravated Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
BRETT B. STEIN JOHN KNOX WALKUP
236 Adams Avenue Attorney General and Reporter
Memphis, TN 38103-1922
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
PAUL THOMAS HOOVER, JR.
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Ira Barber, was convicted by a Shelby County jury of two (2)
counts of aggravated robbery. He was sentenced to concurrent terms of ten (10)
years for each count. On appeal, he claims that (1) the trial court erred in allowing
the prosecutor to read the indictment to the jury prior to the state presenting its
proof, and (2) the jury instruction on reasonable doubt was unconstitutional. After
a review of the record before this Court, we find no error. Accordingly, the judgment
of the trial court is affirmed.
FACTS
Although the sufficiency of the convicting evidence is not at issue, a brief
recitation of the facts is appropriate. Shortly after midnight on October 1, 1996,
Carolyn Turley and Emma Thomas left their place of employment and began driving
home. Because Turley received a page on her “beeper,” they stopped at a
convenience store so that Turley could use the pay phone. Thomas exited the
vehicle and placed the call while Turley sat in the car. Turley then got out of the car,
and while she was on the phone, both victims noticed a man walking down the
street.
The man continued walking around a corner and suddenly appeared from the
side of the building, pointed his gun at them and told Turley to “drop the keys off”
or he would kill both of them. He also demanded money. The man took Turley’s
keys and her “beeper,” and left in the vehicle. The purses of both victims were in
the vehicle. The victims subsequently identified the man as the defendant.
Defendant was convicted of two (2) counts of aggravated robbery. He now
brings this appeal as of right.
READING THE INDICTMENT
2
In his first issue, defendant contends that the trial court erred in allowing the
prosecutor to read the indictment to the jury. He claims that informing the jury that
a grand jury returned an indictment against the defendant deprives him of his
constitutional right to the presumption of innocence. See State v. Onidas, 635
S.W.2d 516 (Tenn. 1982). He further alleges that the indictment itself is irrelevant;
therefore, the prejudicial effect of reading the indictment far outweighs it probative
value.
In State v. Bane, 853 S.W.2d 483 (Tenn. 1993), the Supreme Court held that
reading the indictment to the jury is a proper and appropriate procedure. In so
holding, the Court distinguished the former case of State v. Onidas, supra. In
Onidas, the prosecutor explained the functions of the grand jury and the procedure
utilized in returning a true bill during voir dire. 635 S.W.2d 516-17. The Court in
Onidas determined that informing the jury of such matters was irrelevant, unduly
prejudicial to the defendant and, therefore, reversible error. Id. at 517-18.
However, in Bane the prosecutor simply read the indictment to the jury. 853
S.W.2d at 484. The Court noted that the indictment “at best is a mere accusation
to inform the jury of the charges against the defendant. It raises no presumption of
guilt.” Id. Therefore, the Court concluded that merely reading the indictment to the
jury was a permissible procedure. Id.1
In the case sub judice, there is no indication in the record that the assistant
district attorney did anything other than simply read the indictment to the jury.
Therefore, this case is in line with Bane, and the trial court did not err in allowing the
state to read the indictment to the jury. Furthermore, the trial court instructed the
jury that the indictment is not “evidence against the defendant and does not create
any inference of guilt.” Jurors are presumed to follow the instructions of the trial
court. Henley v. State, 960 S.W.2d 572, 581 (Tenn. 1997).
This issue has no merit.
1
In his brief defense counsel only cited the Onidas case and did not mention, nor try
to distinguish, the Bane case. Yet, present defense counsel also represented the defendant
in Bane. Bane was cited in the state’s brief.
3
REASONABLE DOUBT JURY INSTRUCTION
In his final issue defendant contends that the trial court’s instruction to the
jury on reasonable doubt is unconstitutional. He asserts that the instruction lowered
the state’s burden of proof by stating “absolute certainty of guilt is not demanded by
the law to convict of any criminal charge.”
The issue is without merit. The reasonable doubt jury instruction utilizing the
“absolute certainty” language has been upheld by this Court. See State v. Willie
Taylor, C.C.A. No. 02C01-9702-CR-00080, Shelby County (Tenn. Crim. App. filed
March 10, 1998, at Jackson); State v. Melvin Edward Henning, C.C.A. No. 02C01-
9703-CC-00126, Madison County (Tenn. Crim. App. filed October 24, 1997, at
Jackson); State v. James Earl Somerville, C.C.A. No. 02C01-9608-CC-00289,
Tipton County (Tenn. Crim. App. filed October 13, 1997, at Jackson).
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID H. WELLES, JUDGE
4