# Hunter v. State

> Tennessee Supreme Court · February 14, 1969 · 222 Tenn. 672

URL: https://www.frixlaw.com/law-library/cases/9857607

## Case

- **Full name:** Charles Hunter, Franklin Wright, Ulous Harris, Earl Foster, Garfield Huston, Edgar Williams, Jr. and Elester Benton, Plaintiffs in Error, v. State of Tennessee, Defendant in Error
- **Court:** Tennessee Supreme Court
- **Decided:** February 14, 1969
- **Citations:** 222 Tenn. 672; 26 McCanless 672; 440 S.W.2d 1; 1969 Tenn. LEXIS 498
- **Precedential status:** Published
- **Opinion:** Dissent by Humphreys
- **Judges:** Cresoh, Creson, Burnett, Dyer, Chattin, Humphreys
- **Cited by:** 90 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Hunter v. Tennessee, 403 U.S. 711 (1971).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857607

## Opinion text

Mr. Justice Humphreys
(dissenting).
While I concur in the affirmance of the judgments against Hunter, Wright, Foster, Huston and Benton, against whom there is direct evidence of guilt, I am compelled to dissent to the affirmance of the judgments against Williams and Harris. I do this on the ground that there is no competent, legal evidence of their guilt of the crime of rape for which they were indicted and convicted.
Williams, sentenced to serve 99 years in the penitentiary, was not identified by either the white boys or the white girls. In fact, there was no evidence of any char- *707 aoter that he was even present at the scene of the crime. Although he was placed in lineups which were viewed by all four of the occupants of the car, they were not able to identify him as being present at the scene, or to testify Williams was in any other way involved in the crime.
Williams’ conviction depends for support upon two very ambiguous circumstances. The first of these circumstances is that during the commission of the crime, one of the participants was repeatedly referred to as “8. H.”, and at the trial of the case Williams was referred to by witnesses as “Sonny Hooker”. The last bare drop of justice has been wrung out of appellate hearings if this is to be accepted as a circumstance sufficient to support a 99-year conviction.
The second circumstance is that Williams stood mute when Green, Pearson and Wright implicated him in the crime, and admonished two of the other Negro boys who were there under arrest to “Keep your damned mouth shut. ’ ’
This is all of the evidence against Williams. Upon this evidence, in spite of the fact the two white boys and the two white girls could not identify him in repeated lineups, which should have been considered in exoneration, as this fact is stronger than the circumstances, he has been sentenced to serve 99 years in the state penitentiary.
Even if the evidence upon which these two circumstances rest was legally admissible, I respectfully submit that it is insufficient in weight and substance to justify and sustain a conviction and sentence of 99 years in the state penitentiary.
*708 For reasons which, will be later discussed, it is clear the evidence upon which the second circumstance is based was not legally admissible, and should have been excluded by the Trial Judge upon objection.
Defendant Harris was sentenced to death in the electric chair. He was sentenced to death in the electric chair in spite of the fact that there was no eyewitness who testified he was at the scene of the crime, or testified he had anything to do with the commission of the crime, after he had been viewed in lineups by the boys and girls in the car and they had been able to identify him on two ambiguous circumstances that would not ordinarily sustain a conviction for stealing a package of cigarettes.
Harris was sentenced to death on two circumstances. The first of these circumstances is that he stood silent when Green, Pearson and Wright gave statements implicating him.
The second circumstance is that, although Harris seemed somewhat at ease when arrested, when he was taken into the room where the Negro boys were being assembled, his body stiffened and he exclaimed: “Oh my God.”
Upon these two circumstances, Harris has been sentenced to death. No eyewitnesses. No direct evidence. Just two ambiguous circumstances. Yet, incredible as it seems, upon this evidence alone, Harris has been sentenced to death.
I respectfully submit that these two circumstances do not sustain the judgment against Harris, and that the evidence upon which the last circumstance depends is illegal and inadmissible.
*709 The evidence with, respect to the circumstance of silence should have been excluded by the Trial Judge upon objection. Instead, the Trial Judge allowed this evidence to go to the jury, under a rule to the effect that if a statement is made out of Court in the presence of the accused, containing an accusation or assertion of fact, which the accused party would be expected to deny if untrue, the failure to deny is circumstantial evidence and may warrant an inference of the truth of the statement. This rule is discussed in the majority opinion on pages 694 and 695.
However, it is clear that, since the holding of the Supreme Court of the United States in Escobedo v. State of Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 , the circumstance of silence is not ordinarily admissible for this purpose. One of the clearest propositions made in Escobedo is that it is the duty of the law enforcement officers, after taking the person into custody, prior to any questioning, to wa/rn him that he has the right to remain, silent. Escobedo refers to this as a procedural safeguard which must be complied with or else the judgment will be unconstitutional and void.
This Court, in Lanier v. State, 219 Tenn. 417 , 410 S.W.2d 411 , in an opinion by Chief Justice Burnett, recognized this holding of Escobedo and, without summarizing the facts which are fully stated in that opinion, held:
“When statements which tend to incriminate him are made to the accused and used against him when he does not reply thereto under our authorities his failure to deny is admissible as evidence of his acquiescence in the truth of the statement, (citing case) But the *710 Camper case and such authority is not controlling on the point when one’s constitutional rights have been violated. ’ ’
This opinion then refers to and quotes from Escobedo on the proposition of the right to remain silent, and the duty of arresting officers to advise a defendant or a prisoner of this right.
Citing Escobedo and quoting from it, this Court reversed and remanded the case for a new trial.
If Escobedo invalidated the “circumstance of silence” in the Lanier case, because the facts in regard thereto transpired prior to the warning required, then Escobedo more strongly invalidates and makes illegal and unconstitutional the “circumstance of silence” with respect to the Defendants Williams and Harris, because in each instant, each of the Defendants ivas warned immediately upon his arrest of his constitutional right to remain silent, so that when he stood mute he was simply exercising the constitutional right outlined in Escobedo, and 'which he had been told on arrest he had the right to exercise.
If Escobedo does not have the effect of invalidating the ‘ ‘ circumstance of silence ’ ’ after the warning of the right to remain silent, just as fully and to the same extent that it invalidates the “circumstance of silence” prior to the warning (Lanier v. State, supra), then a defendant’s constitutional right is not only rendered to this extent useless, but the warning actually becomes a trap. A trap, because in reliance on the constitutional right to remain silent, a defendant may stand mute, and yet the State can prove this circumstance of silence against him as a basis for a conviction. This would be a legal outrage.
*711 To state the proposition more concretely: If Williams and Harris were constitutionally entitled to the warning that they had a right to stand mute, and in keeping with this constitutional right they were warned that they had the right to stand mute, then in reliance on the constitutional right they did stand mute, the State ought not he permitted to prove this as a circumstance of guilt.
Finally, regardless of legality, the circumstance of silence as a basis for a death sentence and a 99-year conviction, is, in the present case, ridiculous, since Green and Pearson, before whom Williams and Harris were said to have stood mute, were turned loose (Green by the jury and Pearson by nolle prosequi), in spite of their confessions, while Williams and Harris, who did nothing but stand silent as they had a constitutional right to do, were sent to the electric chair and to serve 99 years.
But, the acquittal of these two, Green and Pearson, was in keeping with the confusion which marked the progress of this case. For, while applying the circumstance of silence to sentence Harris and Williams to death in the electric chair and 99 years in the penitentiary, turning loose Green and Pearson, who confessed their guilt, the jury also turned loose a defendant by the name of Marshall, who was identified by one of the State’s witnesses as being at the scene of the crime and as participating therein.
Such results point up the fairness of Harris’ and Williams’ requests for severance and separate trials and the prejudice to them of the denial of this request.
I have not discussed my feeling that the use of confessions in this joint trial was contrary to Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d *712 476 ; Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 ; and Bujese v. United States, 392 U.S. 297 , 88 S.Ct. 2064 , 20 L.Ed.2d 1113 , because this case will unquestionably go to the United States Supreme Court and that Court is in far better position to interpret and apply its own opinions than am I. If the Bruton rule is to be developed beyond a bare Sixth Amendment confrontation holding, to a holding of due process denial because there can be no fair hearing or trial where this sort of procedure is indulged, it must be by that Court. However, for myself, I think the rule should be so extended.
Nor, have I discussed the application of Witherspoon v. State of Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20L.Ed.2d 776, because the voir dire proceedings, at which it is now alleged the jury was illegally scrupled with respect to the application of the death penalty, is not before this Court. The Attorney General rightfully takes the position that this voir dire record can only be brought to the Court’s attention by the post-conviction precedure provided by Title 40, Chapter 38, Tennessee Code Annotated. However, I am compelled to state that the Post-Conviction Bemedy Law falls grievously short of its purpose in its failure to let this Court examine the causes for which a defendant can have a post-conviction remedy, and in requiring that the whole case go back and be retried again with respect to the post-conviction remedy defect, before this Court can pass on the question raised. The result of this short-coming in the law is that there will always be two trials with respect to any matter which is subject to remedy by the post-conviction law, instead of one, unless the Legislature makes some provision for an appellate court to consider the matters which might be raised under the post-conviction remedy law.
*713 My many years of service at tibe Bar and on the Bench of this State have convinced me that law and order are best served when punishment for crime is swift and certain. Bnt, these same years of service have also convinced me that over and above everything else is the single overriding requirement of justice under law, and in this case, it is simply not just or legal that Harris be sentenced to death in the electric chair and Williams be sentenced to 99 years in the penitentiary on the illegal, ambiguous unconstitutional circumstantial evidence relied on by the State for this purpose. I would reverse the judgments against Harris and Williams and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857607. Public record. Not legal advice.