Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Landon Colvard, Jr., Crossville, for appellant. Brooks McLemore, Jr., Attorney General, Robert L. Delaney, Asst. Atty. Gen., Nashville, Bobby H. Capers, Asst. Dist. Atty., Mount Juliet, John C. Knowles, Asst. Dist. Atty., Sparta, R. Laken Mitchell, Asst. Dist. Atty., Cookeville, for appellee.

Judges

TATUM, Judge.

See more information ...

Smart Summary

Case Summary: Gary Almonrode v. State of Tennessee (Court of Criminal Appeals of Tennessee, Apr. 7, 1978)

Factual and Procedural Background

The appellant, Gary Almonrode, was convicted in the Criminal Court of Cumberland County of armed robbery and sentenced to ten years in the State Penitentiary. The appeal challenges (1) the sufficiency of the evidence; (2) the admission of evidence (a pistol) obtained after a search; (3) a remark by the District Attorney General in final argument; and (4) the trial court's failure to instruct the jury on the defense of alibi. The Court of Criminal Appeals (Judge Tatum delivering the opinion) affirmed the criminal court's judgment. Certiorari was later denied by the Tennessee Supreme Court on June 19, 1978.

Legal Issues Presented

Whether the evidence presented at trial was sufficient to support the conviction for armed robbery.
Whether the pistol obtained from the appellant's sister (and admitted into evidence) was inadmissible as the fruit of an unlawful search and therefore should have been suppressed.
Whether the District Attorney General's reference to "the oldest trick in the world" in final argument constituted reversible error.
Whether the trial judge's failure to instruct the jury on the defense of alibi was reversible error where the appellant presented testimony claiming he was elsewhere at the time of the robbery.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Grace, 493 S.W.2d 474 (Tenn. 1973)	Standard for reviewing sufficiency of the evidence (non-preponderance against the verdict supports affirmance).	The court cited this case in concluding that abundant evidence supported the verdict and that the evidence did not preponderate against the jury's verdict; therefore Assignments One and Two (sufficiency) were overruled.
McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963)	Rule governing sufficiency of evidence review.	Used alongside State v. Grace to support the court's conclusion that the evidence was sufficient and did not preponderate against the verdict.
Rye v. State, 532 S.W.2d 941 (Tenn. Crim. App. 1975)	Principle that failure to object at trial waives appellate review of improper argument.	Applied to hold that the appellant waived any complaint about the District Attorney General's remark because no contemporaneous objection was made.
Canady v. State, 3 Tenn. Crim. App. 337, 461 S.W.2d 53 (1970)	Authority for waiver-by-failure-to-object to prosecutor's argument.	Relied upon to support the waiver conclusion regarding improper argument.
Wallis v. State, 1 Tenn. Crim. App. 756, 450 S.W.2d 43 (1969)	Additional authority that a failure to object waives appellate review of argument.	Cited in the same context to show the argument issue was waived on appeal.
Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969)	Trial judge has wide discretion in controlling counsel's conduct during argument.	Applied to conclude there was no abuse of discretion by the trial judge in the conduct of final argument; thus Assignment Three was overruled.
White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962)	Another authority for the trial court's wide discretion over argument.	Used with Hunter to support the court's finding of no abuse of discretion as to the prosecutor's remark.
Miller v. State, 520 S.W.2d 729 (Tenn. 1975)	Principle concerning standing to object to admission of evidence seized from another's premises.	Applied to support the trial judge's determination that the appellant had no standing to object to the pistol's admission because he had no interest in the premises or in the pistol.
Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963)	Rule that failure to instruct on alibi is reversible error when the proof fairly raises the defense.	Cited as the governing rule on when an alibi instruction must be given; the court then analyzed whether the evidence here fairly raised alibi.
Manning v. State, 500 S.W.2d 913 (Tenn. 1973)	Rule that failure to charge on alibi does not require reversal when the defense has not been fairly raised; also cited regarding T.C.A. § 27-116 and harmless omission when guilt is established beyond a reasonable doubt.	Applied to hold that although the alibi charge should have been given, the evidence did not fairly raise the defense to the degree requiring reversal; under T.C.A. § 27-116 the appellate court was convinced beyond a reasonable doubt that omission did not affect the result, so the assignment was overruled.

Court's Reasoning and Analysis

The court proceeded methodically through each assignment of error presented by the appellant and relied on the trial record and cited authorities in its analysis:

Sufficiency of the Evidence: The court summarized the "accredited evidence" supporting the verdict. Key facts recited by the court included:
- The victim, Rocky German, testified that on May 1, 1976, at about 10:30–10:45 P.M. he was robbed by a ski-masked individual who brandished a pistol described as "silver in color with a black colored handle" and a "dark spot" near the trigger; the victim was robbed of about $80–$85.
- German knew the appellant as a customer of the store and identified the appellant as the robber mainly by manner of walking, height, build, and "mainly from his voice."
- Billy Hyder testified that he picked up the appellant around 10:30 P.M.; the appellant returned home later "breathing harder than normal," had a pistol and holster, and requested delivery of the pistol to his sister that night; Hyder later drove the appellant to the sister's home and then to the Seven-Eleven where police arrested the appellant.
- The police obtained the pistol from the appellant's sister and it was admitted into evidence; the victim positively identified that pistol by the distinguishing mark as the same one used in the robbery.
- When arrested, the appellant had approximately $70–$80 on him and stated he had been drinking at Hyder's that evening. The appellant's own testimony placed him at a park at the time of the robbery and later at his sister's home at a time the defense contended supported an alibi.
The court concluded that this evidence was abundant and did not preponderate against the jury's verdict, citing State v. Grace and McBee v. State, and therefore overruled the sufficiency assignments.
Prosecutor's Argument: The appellant complained of the District Attorney General's use of the phrase "the oldest trick in the world" in final argument, referring to defense counsel's cross-examination technique using a similar gun. The court declined to consider this assignment because defense counsel made no contemporaneous objection at trial; under authorities (Rye, Canady, Wallis) failure to object waived appellate review. The court also noted the trial judge's broad discretion in controlling argument (Hunter, White) and found no abuse of that discretion.
Admissibility / Standing to Object to Pistol: The appellant contended the pistol admitted into evidence was the product of an unlawful search of his sister's home. At the suppression hearing the officers testified that the sister voluntarily delivered the pistol; she testified contrary. The trial judge held the appellant lacked standing to challenge the admissibility because he had no interest in the premises or the pistol. The appellate court agreed, citing Miller v. State, and noted that the sister (had she remained the custodian) could have been subpoenaed by the State to produce the pistol. Thus Assignment Four lacked merit.
Failure to Instruct on Alibi: The court acknowledged the well-established rule (Poe v. State) that failing to instruct on alibi is reversible error if the proof "fairly raises" that defense. The court examined the timing evidence: the victim's estimate of 10:30–10:45 P.M., the robbery's short duration (two to three minutes), the victim's prompt call to police, Officer Wyatt's report showing notification at 11:25 P.M. when appellant was with Hyder, and the absence of clear record evidence about the timing of police broadcasts or when officers arrived at the scene. The appellant testified he was alone in a park at the time of the robbery and presented testimony that he and Hyder arrived at his sister's home at about 11:30 P.M. The court determined the arrest report and record did not "fairly raise" alibi to the degree requiring reversal. Although the court stated the alibi charge should have been given, it applied T.C.A. § 27-116 (as interpreted in Manning v. State) and concluded that the court was convinced beyond a reasonable doubt of the appellant's guilt and beyond a reasonable doubt that the omission of the alibi instruction did not affect the result. Therefore reversal was not required.

Holding and Implications

Holding: The Court of Criminal Appeals AFFIRMED the judgment of the Criminal Court.

Implications: The direct consequence of the opinion is that the appellant's conviction for armed robbery and his sentence (ten years) were upheld. The court rejected each assignment of error: (1) it found the evidence sufficient; (2) it held the appellant lacked standing to challenge the pistol's admissibility; (3) it found any objection to the prosecutor's remark was waived and, in any event, no abuse of discretion was shown; and (4) although an alibi instruction arguably should have been given, the record did not fairly raise the defense to require reversal and under T.C.A. § 27-116 the omission was harmless beyond a reasonable doubt. The opinion does not announce or claim to establish any new legal principle beyond applying established Tennessee authorities.

Judges O'Brien and Daughtrey concurred in the opinion.

Show full summary ...

Gary ALMONRODE, Appellant, v. STATE of Tennessee, Appellee.

TATUM, Judge.

OPINION

The appellant, Gary Almonrode, was convicted of armed robbery, and sentenced to not less than ten years nor more than ten years in the State Penitentiary. On his appeal, he complains of the sufficiency of the evidence, the admission of evidence seized after a search, argument of the District Attorney General, and the Trial Judge's instructions to the jury. The assignments are without merit.

Assignments One and Two challenge the sufficiency of the evidence, so we will summarize the accredited evidence. Rocky German, an employee at a Seven-Eleven Store, testified that around 10:30 or 10:45 P.M. on 1 May 1976, he was robbed by an individual wearing a ski mask and brandishing a pistol that was "silver in color with a black colored handle." There was a "dark spot" on one side of the pistol "up around the trigger." German was robbed of approximately $80 to $85. The appellant was a customer of the store and German knew him. German was of the opinion that appellant was the robber and so informed police immediately after the robbery. His opinion was based on the robber's manner of walking, his height, build, and "mainly from his voice." He saw no automobile on the premises.

On that same night, Billy Hyder, a friend of the appellant, went to the appellant's home in his automobile, arriving there at approximately 10:30 P.M. The appellant came home around thirty to forty-five minutes later, "breathing harder than normal," when he arrived. The appellant went directly to a bedroom for a short while. When he reentered the room where Hyder was waiting, he had a pistol and holster. The appellant told Hyder the pistol and holster belonged to his sister and that it was important for the pistol to be returned that night. At appellant's request, Hyder drove the appellant to the home of his sister to deliver the pistol and holster. Hyder and the appellant then drove to the Seven-Eleven Store while investigating officers were there, and the officers arrested the appellant. Hyder told the policemen about the trip to appellant's sister's home to deliver the pistol. The policemen promptly procured the pistol from the appellant's sister, and it was admitted into evidence at the trial of this case. The victim, Rocky German, positively identified the pistol, by the distinguishing mark on it, as being the same one used in the robbery.

When the appellant was arrested, he had approximately $70 to $80. After his arrest, he told the police officers he had been drinking beer that evening at Billy Hyder's home.

The appellant testified he went for a walk that night and was sitting alone in a park at the time of the robbery. He said he saw Hyder's car parked at his residence and ran home because Hyder was there, causing him to be short of breath. He stated he had cleaned his sister's pistol and was anxious to return it to her that night because she wanted to take it with her on an outing the next day. The appellant had sold the pistol to his sister about two weeks previous to the robbery. He testified he and Hyder left his home for his sister's home at about 11:15 P.M. They remained at his sister's home five or ten minutes, then drove by the Seven-Eleven Store where the appellant was arrested. His mother and a neighbor testified that he and Hyder arrived at the home of appellant's sister at 11:30 P.M.

We first address ourselves to the assignments attacking the sufficiency of the evidence. We find abundant evidence to support the verdict and it does not preponderate against the verdict. We must therefore overrule Assignments One and Two. State v. Grace, 493 S.W.2d 474 (Tenn. 1973); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

In Assignment Three, the appellant complains of the District Attorney General using the expression, "the oldest trick in the world," in his final argument. The District Attorney General had reference to the defense counsel using a gun, similar to the one obtained from the appellant's sister, in cross-examining the victim, German. First, we cannot consider this assignment of error because no objection was made to the use of this language at trial. If the argument was erroneous, the error was waived. Rye v. State, 532 S.W.2d 941 (Tenn. Crim. App. 1975); Canady v. State, 3 Tenn. Crim. App. 337, 461 S.W.2d 53 (1970); Wallis v. State, 1 Tenn. Crim. App. 756, 450 S.W.2d 43 (1969). Further, the Trial Judge has wide discretion in controlling the conduct of counsel with respect to argument. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962). We find no abuse of discretion. Assignment Three is overruled.

In Assignment Four, the appellant complains that the pistol allegedly used in the robbery was the fruit of an unlawful search of the home of his sister. The appellant's sister filed a motion to suppress this evidence. At a suppression hearing, the police officers testified that the appellant's sister voluntarily delivered the pistol to them. She testified to the contrary. The Trial Judge correctly held that the appellant had no standing to object to the evidence. The appellant had no interest in the premises searched or in the pistol seized and could make no valid objection to the evidence. See, Miller v. State, 520 S.W.2d 729 (Tenn. 1975), and cases there cited.

The appellant's sister had no standing to object to the admission of evidence in the appellant's trial. Had the officers not procured the pistol or if it had been returned to appellant's sister, the State could have required her by subpoena to come with the pistol to court. There is no merit in Assignment Four.

In Assignments of Error Five and Six, the appellant complains of the failure of the Trial Judge to instruct the jury on the issue of alibi. It is reversible error for the Trial Judge to fail to instruct the jury on the issue of alibi when the proof fairly raises this defense. This rule is applicable when, as here, no special request on this proposition is submitted. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963). It is also established that the failure to charge on this issue does not require a reversal when the defense has not been fairly raised by the evidence. Manning v. State, 500 S.W.2d 913 (Tenn. 1973).

The victim testified that the robbery took place at about 10:30 or 10:45 P.M. He testified that the robbery lasted two to three minutes and that within two to three minutes after the robbery, he called the City Police Department. Policeman George Wyatt recalled that he was notified of the robbery around 10:30 or 11:00 o'clock P.M., but his arrest report indicated he received information of the robbery at 11:25 P.M., when the appellant was with Hyder. There is no showing that the victim telephoned this officer directly and not through a dispatcher, but we glean a positive indication from the record that this officer was notified of the robbery by means of a police broadcast. The record does not reflect how much time elapsed between the victim's telephone call to the police station and Wyatt's notification. Other city policemen and the sheriff also responded to this robbery alarm and the record does not show how many officers, if any, were at the scene of the robbery when Officer Wyatt arrived, how long they had been there, or the time of their notification. The appellant himself testified that at the time of the robbery, he was alone in the park.

The arrest report does not " fairly raise" the alibi issue to the point requiring a reversal for failure of the court to give an alibi instruction. While the alibi charge should have been given, we are prohibited by T.C.A. § 27-116 from reversing this case on that ground. We are convinced of the appellant's guilt beyond a reasonable doubt and we are also convinced beyond a reasonable doubt that the omission of the Trial Judge to instruct on the defense of alibi did not affect the result of the trial. We must therefore overrule this assignment. Manning v. State, supra.

The judgment of the Criminal Court is affirmed.

O'BRIEN and DAUGHTREY, JJ., concur.

ALMONRODE v. STATE