# Graves v. State > Court of Criminal Appeals of Tennessee · July 31, 1972 · 489 S.W.2d 74 URL: https://www.frixlaw.com/law-library/cases/9684516 ## Case - **Full name:** Delthia Ann GRAVES and Gilbert Lawrence Callaway, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** July 31, 1972 - **Citations:** 489 S.W.2d 74; 1972 Tenn. Crim. App. LEXIS 297 - **Precedential status:** Published - **Opinion:** On rehearing by Galbreath - **Judges:** Galbreath, Mitchell, O'Brien - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684516 ## Opinion text OPINION ON PETITION TO REHEAR GALBREATH, Judge. We have for disposition the earnest and forceful petition to rehear filed on behalf of plaintiff in error, Delthia Graves. We have by our former opinion considered at length all of the contentions made except that urged as a result of the District Attorney General’s office recommending subsequent to the trial of this cause that the first degree murder indictment against its primary witness, Carol Ann Robbins, a co-defendant whose trial was severed from those of the other two principals, Mrs. Graves and Gilbert Lawrence Callaway, be nolle prosequied. We are presented with the transcript of the proceeding in which the nolle prosequi was moved for by the State and ordered by the court and have carefully considered it in light of the suggestion made in the petition to rehear that Mrs. Robbins’ testimony was unduly influenced by the prospect of a voluntary abandonment of the strong case against her by the State. We are cited the recent decision of the United States Supreme Court of Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed. 2d 104 , in which a felony conviction was reversed when it was admitted by a United States attorney that the witness co-defendant “would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the ‘good judgment and the conscience of the government’ as to whether he would be prosecuted.’’ This threat coupled with a thinly veiled promise of a reward prompted the United States Supreme Court, in remanding for a new trial, to observe, “ . . . evidence *87 of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” While recognizing the correctness of the holding of the United States Supreme Court to the effect that any agreement entered into between the prosecution and a witness that could conceivably influence his testimony should be divulged to the defense and the trier of fact, we find no factual similarity between the situation confronted in Giglio and here. There is no showing here that any promise, threat, or other coercive device was used by the State to prompt Mrs. Robbins to testify as to what she observed surrounding the death of the victim or her own part in the crime. In our opinion we discussed at length the cross examination of the witness on this point. “[S]he was repeatedly asked if any promises had been made to her by the prosecution to solicit her testimony. She repeatedly denied that she had been granted any concessions or promised anything for her testimony but was motivated only by a desire to tell the truth since her attorney had advised her that was the best course for her to follow.” That this was good advice and such as should be encouraged on the part of all who find themselves accused of crime and in grave danger of conviction was amply demonstrated by the later concession granted her for her cooperation with society in the serious business of the detection and conviction of those who commit crime and attempt to evade justice. It is generally recognized that a humble, contrite, and conscientious repentent who “throws himself upon the mercy of the court” usually fares much better than does the adamant accused who is adjudged guilty after a lengthy trial. While one indicted for crime in the position of cooperating with the government should not be threatened or assured the court will grant favored treatment in return for his assistance, there is no proscription against his hoping that his valuable help will result in leniency. One would be naive not to recognize that grateful prosecution authorities often seek to help those who cooperate by giving them information and in acknowledging guilt. From the days of our lice infested ancestors until the end of time there is little likelihood of repeal of one of the first laws of nature, “You scratch my back and I will scratch yours.” Of course, the trial judge should not enter into or be bound by any decision made by the prosecution to recommend leniency in return for cooperation by one of several accused of crime in securing convictions in contested trials, but all connected with the practice of criminal law know that such recommendations, as in plea bargaining, carry a great weight with most judges, particularly those without adequate probationary investigative staffs who must rely in large measure on information imparted by the attorneys representing the respective parties. The trial judge, in commenting on the recommendations of the District Attorney General’s office, satisfied himself that this was a proper case in which to agree with such recommendation. Whether he was right is not before us, but the record makes clear that there was no promise of reward made to the witness who was at all times advised by her own attorneys that her decision to cooperate was correct. Finding nothing improper in the dealings of the prosecuting authority with this witness, we overrule the petition to rehear. MITCHELL and O’BRIEN, JJ., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684516. Public record. Not legal advice.