Petition for a Writ of Certiorari — Shelton v. Tennessee

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Question Presented

Constitutional Provision Involved

Statement of the Case

Argument

Conclusion

Appendix:

Opinion of the Court of Criminal Appeals of Tennes-

see 6

Order of Supreme Court of Tennessee Denying Cer-

tiorari 15

Bill of Exceptions, Pages 50-71:

Testimony of Robert Finchum, Tennessee High-

way Patrolman 15

OW DN DS D&S we

TABLE OF AUTHORITIES

Cases

Carroll v. United States, 267 U.S. 132

Henry v. United States, 361 U.S. 98

United States v. Lefkowitz, 285 U.S. 452

United States v. Rabinowitz, 339 U.S. 62

> >. LP LP

Constitution and Statute

United States Constitution, Amendment IV... 2,4

28 U.S.C. § 1257(3) 1

In the Supreme Court of the United States

October Term, 1971

No.

DAVID EUGENE SHELTON >

Petitioner,

vs.

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The Court Of Criminal Appeals For The

State Of Tennessee

David Eugene Shelton petitions for a writ of certiorari

to review the judgment of the Court of Criminal Appeals

of Tennessee entered in this case on February 11, 1972,

review of which order was denied by the Supreme Court

of Tennessee on April 3, 1972.

OPINION BELOW

The opinion of the Court of Criminal Appeals of

Tennessee is unreported (Appendix, p. 6). The order

of the Tennessee Supreme Court denying certiorari is also

unreported (Appendix, p. 15).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

2

QUESTION PRESENTED

That evidence was introduced in the trial below

which was the product of an illegal, unlawful and un-

reasonable search and seizure in violation of petitioner’s’

constitutional rights as guaranteed to him by Amendment

IV of the Constitution of the United States.

CONSTITUTIONAL PROVISION INVOLVED

U. S. Constitution, Amendment IV:

“The right of the people to be secure in their persons

. against unreasonable . . . seizures, shall not be

violated ... .”

STATEMENT OF THE CASE

Trooper Robert Finchum stated that in the latter part

of January he was working on his personal pick-up truck

at Hensley’s Garage (Appendix, p. 16) [B.E., p. 50];

and he was inside the garage when a 1966 Mustang auto-

mobile was driven up and parked outside of the building

(Appendix, p. 18) [B.E., p. 53]. He stated that he had

a conversation with Mr. Hensley (Appendix, pp. 16 and 22)

[B.E., pp. 51 and 58], and that upon information received

he did suspect something; and he further testified that

he had. been given a price for this car and that he was in-

terested in purchasing it if he could get it for that price

(Appendix, pp. 18 and 24) [B.E., pp. 54 and 62]. Trooper

Finchum then went to the 1966 Mustang and without per-

mission from Mr. Shelton opened the door (Appendix, pp.

19 and 25) '[B.E., pp. 55 and 63] and copied down the serial

number, which was 6F07T180121, from the door on the

driver’s side (Appendix, pp. 19 and 23) [B.E., pp. 54 and

60], and he stated- that he never entered the car for any

other purpose (Appendix, p. 21) [B.E., p. 57]. ‘The counsel

for Mr. Shelton objected to the introduction of the testi-

mony and findings of Trooper Finchum (Appendix, pp.

3

16 and 22) [B.E., pp. 51, 58, and 59]. The trial Judge then

overruled the objections of Mr. Shelton’s counsel (Ap-

pendix, p. 22) [B.E., p. 59]; and then the counsel for Mr.

Shelton excepted to the Court’s ruling (Appendix, p. 21)

[B.E., p. 58].

ARGUMENT

The petitioner contends that when Robert Finchum,

a member of the Tennessee Highway Patrol, examined a

1966 Ford Mustang parked at the A-1 Used Parts and

Garage and copied down the Serial Number 6F07T180121

this constituted an illegal, unlawful and unreasonable

search and seizure. Further, petitioner contends that it

constituted reversible error for the Honorable Trial Court

to permit Trooper Finchum to testify to these facts in the

presence of the jury. Finally, petitioner contends that

such conduct on the part of Officer Finchum and the

Trial Court’s adrnission of evidence thereto was so grossly

illegal and unreasonable as to preclude its being de-

nominated as harmless; and for such conduct, the petitioner

contends that he is, as a matter of law, entitled to a re-

versal,

In regard to this unlawful search and seizure by

Trooper Finchum, it will be noted that it was not in-

cident to any arrest. Therefore, it is evident that suf-

ficient probable cause was not present to make the search

legal. In his own testimony, Trooper Finchum stated that

_he suspected ihe vehicle was stolen because the petitioner

was asking only Five Hundred Dollars ($500.00) for it.

However, the U. S. Supreme Court has stated that while

evidence which would establish the defendant’s guilt in

a criminal trial is not necessary in order to establish

probable cause to search, yet “common rumor or report,

a

4

suspicion, or even strong reason to suspect will not suf-

fice.” Henry v. United States, 361 U.S. 98, 101-102.

The general rule is that a search will only be reason-

able where the officers are searching for some specific

item or group of items. United States v. Rabinowitz, 339

U.S. at 62. General and exploratory searches, without

any specific objective, but “in the hope that evidence of

crime might be found,” are universally condemned as un-

reasonable and violative of the Fourth Amendment. United

States v. Lefkowitz, 285 U.S. 452. However, in the in-

stant case, this was the purpose of motive of the unreason-

able and unlawful search conducted by Trooper Finchum.

Trooper Finchum examined the vehicle in question, copied

down its registration number and checked the number

with Kingsport to determine whether the vehicle was

stolen (Appendix, p. 17) [B.E., p. 52]. In other words,

Trooper Finchum searched the vehicle in hopes that evi-

dence of a crime would be found. Therefore, the search

was in violation of the Fourth Amendment.

In addition to the above, the petitioner would show

to this Honorable Court that his vehicle is protected to

the same extent against an unreasonable search as his

home would be. Henry v. United States, 361 U.S. 98. Al-

though the case of Carroll v. United States, 267 U.S. 132,

153 ; rovides for a warrantless search of a moving vehicle

where a competent official has probable cause for believing

that the vehicle is carrying contraband or illegal mer-

chandise; this rule does not apply here. This vehicle was

parked, and the petitioner was not even approached by

Trooper Finchum regarding the vehicle. Thus, where the

vehicle is parked, as in this case, and where it is practicable

to secure a warrant, it is clear that the police may not

search without a warrant. And, it is readily apparent

that any search without the required warrant is illegal

5

and unreasonable. Further, no consent to search the ve-

hicle was given by the petitioner.

In light of the above, the petitioner contends that the

search and seizure by Trooper Finchum was illegal and

unreasonable. Further, the petitioner contends that it

was reversible error for the Trial Court to permit testi-

mony regarding this matter to be heard by the jury.

Finally, the petitioner contends that such testimony was so

prejudicial as to preclude its being harmless error. There-

fore, the petitioner contends that he is entitled to a re-

versal,

CONCLUSION

It is respectfully submitted that this petition for a

writ of certiorari should be granted.

Respectfully Submitted,

Joun A. ARMSTRONG

Juvmy Gray CuTsHAw

JoHN K. Witson

Greene County Bank Building

Greeneville, Tennessee

Counsel for Petitioner

gg

APPENDIX

OPINION OF THE COURT OF CRIMINAL APPEALS

OF TENNESSEE

(Filed February 11, 1972)

No. 58

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE AT KNOXVILLE

October, 1971

DAVID EUGENE SHELTON,

Plaintiff-in-Error,

Vs.

STATE OF TENNESSEE,

Defendant-in-Error.

OPINION

David Eugene Shelton who will be referred to as the

defendant or by name represented by his counsel was on

September 5, 1970, convicted in the Criminal Court of

Greene County, Tennessee of receiving a stolen automobile

over the value of $100.00. The jury fixed the punishment

at four (4) years in the penitentiary.

After the motion for a new trial was heard and over-

ruled the Trial Judge Honorable H. C. Smith pronounced

judgment upon the defendant for not less than three nor

more than four years confinement in the penitentiary.

The defendant prayed and was granted an appeal and

was allowed ninety days to file a bill of exceptions.

The trial judge directed a verdict of not guilty as to

a co-defendant Joelene Showman and the trial jury re-

7

turned a verdict of not guilty as to another co-defendant

Billy Jackie Showman. Another co-defendant Charles M.

Cutshaw at a former term May. 22, 1970, pleaded guilty

of re eiving stolen property of more value than $100.00

and was sentenced to three years in the State Penitentiary.

About November 25, 1969, the 1966 Ford Mustang

Automobile Serial No. 6F07T180121 was stolen from Bruce

McCloud in Knoxville, Tennessee.

About February, 1970 the defendant sold this 1966

green two-door Mustang automobile Serial No. 6F07T

180 121 to Mr. and Mrs. A. F. Munsey. The defendant

had received this automobile from Charles M. Cutshaw,

who pleaded guilty of receiving the stolen automobile un-

der the indictment in this case.

After the Munseys bought this automobile from the

defendant, and on the same day, an acquaintance of

theirs, Trooper S. O. Trent of the Tennessee Highway

Patrol, saw them with the car at the 11 E. Gulf Station

where they showed the car to Trooper Trent, told him they

had just bought it and wanted him to look at it. He

examined it and told them the serial number was missing

from it and advised them to take the automobile back to

the seller and get their money back, which they did. Af-

ter the Munseys returned the automobile to the defendant

he negotiated a trade with Ivan Duncan and again trans-

ferred possession of the automobile to Ivan Duncan who

in turn sold it to Jewel City Motors. The defendant was

a Notary and showed the transfer of title as passing from

Mrs. Munsey to Duncan instead of showing it was from

him to Duncan. The defendant had purchased a wrecked

1965 Mustang from Mr. Showman along with the title

to the 1965 car and it was this 1965 title which he trans-

ferred to Mrs. Munsey as being the title to the stolen

1966 Mustang.

The defendant Shelton had been in the used car busi-

ness for five years and was familiar with automobile trade

procedures.

Later a more extensive investigation and examination

of the car developed that a manufacturer’s confidential

serial number was found on the frame of the vehicle which

apparently had not been known to the owners, the de-

fendant or the dealers.

The proof shows that Embers Hensley operated A

and 1 Used Cars and Parts business. The defendant Shel-

ton about January, 1970 came to his place and asked if he

had a title for a 1966 Mustang 6 Cylinder car and Hensley

told him he had 2 or 3 and the defendant said he needed

one and that he wanted to buy one and was willing to

pay for it and displayed a hand full of money. Hensley

told the defendant the titles had to be sent into the State.

Hensley declined to sell the defendant a title but told him

it was against the law. That these titles were for the

wrecked cars he had there from which he was removing

the parts, and the serial plates had to be pulled off of them

and attached to the titles and mailed to Nashville.

The defendant testified in his own behalf that he is

not guilty, that he did not know the car was stolen. Ac-

cording to his testimony sometime in December 1969 he

bought the 1966 Ford Mustang in question from Charles

M. Cutshaw and paid Cutshaw $350.00 for it. That the

transmission was slipping and he paid $150.00 to get it

repaired. That he did not receive a title when he bought

the car, that he was to receive a title in two or three

months. The man he bought it from said it was not paid

for, that he owed 2 or 3 payments on it. That he tried to

get a title for the car from Hensleys’ garage. That if he

sold the car he intended to tell the purchaser he did not

have the right title for the car and that they could use that

one until he got one.

That he sold the car to A. F. Munsey and told him

the title was not the right title for the car and go ahead

and drive it and as soon as he got the other title he would

give him the original title. The defendant admitted he

bought a 1965 Mustang which was totally wrecked, from

Mr. Showman for which he paid him $30.00. That Show-

man gave him a title for it, that he has never taken any

parts off of it. That the only thing he received from

Showman was a title to a 1965 Mustang.

On cross-examination the defendant admitted that he

notarized a title to the car in question showing Mary

Lee Munsey sold the car to Ivan Duncan when in fact she

did not convey the title to Duncan but that he, Shelton,

sold it to Ivan Duncan and not Mary Lee Munsey.

Hubert Hutson testified in behalf of the defendant

that about January 30, 1970 he installed a transmission and

a torque converter in a 1966 Mustang for the defendant

Shelton and charged him $128.90.

ASSIGNMENTS OF ERROR

In the defendant’s Ist assignment of error he con-

tends the evidence is insufficient to support the verdict

of the jury and preponderates against the verdict and in

favor of the innocence of the defendant.

This assignment must be considered under the rule

that a verdict of guilt, approved by the trial judge, accredits

the testimony of the State’s witnesses, resolves all con-

flicts in the testimony in favor of the State and establishes

the State’s theory of the case: that under such a verdict

the presumption of innocence which the law throws around

a a,

10

an accused and which stands as a witness for him in his

trial, disappears, and upon appeal that presumption of

innocence is replaced by a presumption of guilt; that this

Court is not permitted to reverse a conviction upon the

facts unless the evidence clearly preponderates against

the verdict of the jury and in favor of the innocence of

the accused; that we may review the evidence only to de-

termine whether it preponderates against the verdict; and

that the defendant has the burden of showing on appeal

that the evidence preponderates against the verdict and

in favor of his innocence. Turner v. State, 216 Tenn. 714, 394

S.W. 2d 635; Chico v. State, 217 Tenn. 19, 394 S.W. 2d

648; Johnson v. State, 217 Tenn. 234, 397 S.W. 2d 170;

Brenner v. State, 217 Tenn. 427, 398 S.W. 2d 252; Owens

v. State, 217 Tenn. 544, 399 S.W. 2d 507; Harris v. State,

217 Tenn. 582, 399 S.W. 2d 749; Brown v. State, Tenn.

Crim. App., 441 S.W. 2d 485.

The defendant’s 2nd assignment of error is that the

evidence introduced at the trial through the testimony

of Officer Finchum was the product of an illegal search.

Officer Finchum of the Tennessee Highway Patrol

was off duty, working on his pickup truck “fixing it up

for himself” at Hensley’s A and 1 Used Car and Parts

Garage late in January 1970. That he had a conversation

with Mr. Hensley who evidently told him the defendant

wanted to sell the 1966 Mustang. That he looked at a

1966 green Ford Mustang parked at the A and 1 Used

Parts and Garage. That he looked the car over with the

intentions of maybe buying it, he had been given the

price, he was interested in buying it if he could get it at

that price. That he looked at the serial number and wrote

it down 6F07T 180 121. That he called Kingsport for the

registration and found it was registered to Bruce Mc-

Cloud. Later the defendant Shelton drove away in this

11

car. That he was interested in buying the car if he could

get it at the price that had been quoted to him, $500.00

which was very cheap. That he had no information the

car was stolen. They did not get a stolen report on it.

That he did not search the car he just obtained the serial

number by opening the door on the drivers side.

The trial judge conducted an evidentiary hearing, in

the absence of the jury on the defendant’s objection to

this evidence and found that the opening of the car door

by Officer Finchum and taking the serial number on the

door frame was the action of a highway patrolman off

duty, looking at the car as a prospective buyer, and that

he made no search of the car, and what he did was

neither unreasonable nor unlawful. We agree with the

holding of the learned Trial Judge and find the evidence

does not preponderate against his holding. We hold that

Finchum made no unreasonable search of the car and that

the evidence was admissible.

In the 3rd assignment of error the defendant com-

plains that the trial judge erred in his instruction to the

jury that in considering the testimony of the defendants

that the jury should remember that the defendants are

parties to the case and interested in the outcome.

One of the rules for weighing testimony is that the

jury should consider the testimony in the light of the

interest or lack of interest the witness may have in the

out come of the lawsuit. It is difficult to conceive of any-

one being more interested than the defendant, in the re-

sult of a trial of a felony case. When the judge said to the

jury that it should remember the defendant is a party to

the case and interested in the out come he was merely

pronouncing a profound truth which the trial jurors al-

ready knew if they were giving careful attention to the

issues.

12

We hold that such instruction was not error.

The proof in this case shows the defendant Shelton

had been a used car dealer for five years. That the 1966

Ford Mustang in question was stolen in Knoxville in

November 1969. That the defendant bought it from

Charles Cutshaw who could not give him a valid title.

That Cutshaw pleaded guilty under this indictment of

receiving the stolen car. That the defendant Shelton sold

the 1966 Ford Mustang to the Munseys without a serial

number on it and without a valid title but defendant gave

them a title to a different Mustang being a 1965 car that

had been wrecked, and which he had evidently bought in

an effort to obtain the title he could use. That the de-

fendant made several unsuccessful efforts to buy a 1966

Mustang title from others particularly Embers Hensley

the A and 1 Used Car and Parts dealer. When the Mun-

seys discovered the defendant had sold them a car without

a serial number on it they took the car back to him and

he refunded their money. The defendant then sold the

1966 Mustang car to Ivan Duncan and surreptitiously

showed the car was conveyed to Duncan in the name of

Mrs. Munsey instead of correctly showing that it was

conveyed by him.

We find the evidence does not preponderate against

the verdict of the jury, and that the defendant’s guilt has

been clearly established.

—

13

The assignments of error are overruled and the judg-

ment is affirmed. :

/s/ JoHN A. MiTCHELL

John A. Mitchell, Judge

CONCUR:

William S. Russell, Judge

/s/ Ropert K. Dwyer,

Robert K. Dwyer, Judge

CONCURRING OPINION

I concur in the affirmance of this conviction and in

the holding that the convicting evidence is legally suf-

ficient.

I believe it unnecessary to hold that Officer Finchum’s

action in opening the car door and copying the serial

number, after which he made a theft check (with nega-

tive results), was legal. The defendant testified that Fin-

chum did not go near the car. Having taken that position

(that there was no search) I do not judge that he is in

a position to complain that what he says didn’t happen

actually constituted an illegal search. Hence, I would

not reach the question.

I would further observe that Shelton’s theory was

that he didn’t know that the car was stolen, not that it

was not stolen; and I note further that the officer did not

even learn that the car was stolen as a result of his al-

leged copying of the number from the door post. Fur-

ther, the same number was found upon the car at other

places at later times, when it was no longer in defend-

ant’s possession; so the evidence which identified the car

as being stolen was unquestionably competently before

14

the jury, and did not depend upon Officer Finchum’s tes-

timony. In summary, the information obtained by the

officer is not really in dispute (except as to the fact of

his obtaining it). If his action was a search and it was

illegal, no prejudice resulted to the defendant.

I would also express my personal disapproval of a

jury charge that calls special attention to the interest of

a defendant in instructing the jury how to weigh his

testimony. I have always felt that such a charge is un-

fair. Certainly all defendants are interested in the out-

come of a trial, both those who are truthful and those

otherwise. To state the fact of peculiar interest, as was

done in this case, seems to me to say more than it should

and mean more than it says. Our Supreme Court has

permitted it, and we likewise; but I personally feel that

it would be better to simply say that the testimony of a

defendant is judged by the same rules applicable to the

testimony of all other witnesses.

/s/ Witit1AM S. RUSSELL

William S. Russell, Judge

15

ORDER OF SUPREME COURT OF TENNESSEE

DENYING CERTIORARI

(Filed April 3, 1972)

SUPREME COURT OF TENNESSEE AT KNOXVILLE

September Term, 1971

DAVID EUGENE SHELTON

vs.

STATE OF TENNESSEE

DECREE—WRIT DENIED

This case coming on to be heard upon a transcript of

the record from the Criminal Court of Greene County,

opinion and decree of the Court of Criminal Appeals, pe-

tition for certiorari, assignments of error and briefs of

counsel, upon consideration whereof the Court is of opinion

that the petition for writ of certiorari is not well taken,

and said petition is denied.

The petitioner David Eugene Shelton will pay the

costs incident to filing petition for certiorari, for which

let execution issue.

BILL OF EXCEPTIONS, Pages 50-71

[50]

The Witness, Rosert Fincuum, having been first duly

sworn, testified as follows:

Direct EXAMINATION By Mr. WEXLER:

Q And I believe you are a member of the Tennes-

see Highway Patrol? A I am.

16

Q And you was back in February and March of

1970? A I was.

Q Officer Finchwn, did you have an occasion some-

time in the month of February of 1970 or the later part

of January of 1970, to be up at Mr. Hensley’s Garage?

A_ I was at the A and 1 used car and parts garage.

Q_ I believe he is the operator of that place or was

at that time? A He was the manager or operator at that

time.

Q What were you doing up there? A I had a pickup

truck that I was working on and fixing up myself.

Q Alright, at this particular time do you remem-

ber the date? A I’m not positive of it. It was the later

part of January sometime.

Q Was that your off day? A Yes, sir, it was.

Q You weren’t on duty? [51] A No, sir.

Mr. Cutshaw: Object to the leading if the Court

please. Also, it is immaterial.

The Court: Overruled, he said he had his truck

there. Highway Patrolmen don’t usually drive trucks

on duty as all of us know. Overruled, go ahead.

Q Mr. Officer, I believe you had a conversation with

Mr. Hensley there? A _ I did.

, Q Now, you can’t tell what that conversation was,

S but as a result of that conversation what did you do?

Mr. Cutshaw: Now if the Court please, we are

going to object to what he did and ask that the jury

be sent out for a few moments.

The Court: Well, if we are going to raise the

question we may as well do it right. You will go to

the juryroom, Gentlemen. You will not discuss any

phase of it.

17

Jury Our:

DrrecTt Exam ConrinueEp:

Q Officer Finchum, as to this conversation you had

with Mr. Hensley, what did you do? A I went to look

at a 1966 Ford Mustang.

Q What color was it? A It was a dark green.

Q Where was it parked? [52] A It was parked at

the A and 1 Used parts and garage.

Q Is that the same place you were working on your

truck? A Yes, sir it was.

Q Alright, you say you went to look at this car.

What did you do when you got there? A _ I looked the

car over with intentions of maybe purchasing it. The

price had been given to me, what they were asking for

it. I checked the car over closely and I looked at the

serial plate and I obtained the serial plate from the car

at that time. I wrote it down on a piece of paper.

Q You say you obtained it. You just took it down?

A I took it down on a small piece of paper at the time.

The serial plate number on the car.

Q You didn’t remove the plate? A No, sir. It was

on the left door of the car.

Q All right, what number did you take down?

A The number that I wrote down was 6F07T180121.

Q All right, after you took that number down what

did you do? A Later in the day I called Kingsport to

get a registration check on the vehicle.

Q All right, what was the results of that? A The

registration showed the car registered to Bruce McCloud.

Mr. Cutshaw: Objection.

[53] The Court: Overruled, the Jury is out. The

Court wants to hear whatever the Court should hear.

Q Any other information? A Only his address of

3612 Cunningham Road, Knoxville, Tennessee.

ae

18

Q All right, were you out at Mr. Hensley’s Garage

when this car left? A To the best of my knowledge I

was there when he left.

Q. All right, who drove the automobile away? A

Mr. Shelton.

Q How long after you had looked at it there was it

until he left? A Well, it was some time. As well as I

remember he went down into the field to look for some

parts or something. .

Q All right, were you there when the car was driven

up to the garage? A I was.

Q Who drove it up there? A I couldn’t say. I

was inside the building.

The Court: Well, we sent the jury out for some

purpose. You might go into it, Mr. Cutshaw.

Cross EXAMINATION BY Mr. CUTSHAW:

Officer Finchum, you recall testifying down in Ses-

sions Court, do you not? [54] A Yes.

Q And do you recall testifying that when you saw

Mr. Shelton out there, that you went there and inspected

the car and took this number down? A When he was

out there?

Q No, when you went out to look this car over?

A_ I went to his car, yes, sir.

Q Did you have a search warrant or anything? A

No, sir.

Q Did you suspect anything? A Well, upon infor-

mation received, yes, sir.

Q Then of course you were checking out the car for

information if it was necessary to charge anyone? A

Well, I had been given a price that the car had been of-

fered for sale for. I was interested if I could purchase the

car for that price.

19

Q Directing your attention to the preliminary hear-

ing. Do you recall that you testified there that you saw

him go in Hensley’s Garage and that you decided to sneak

out there and get the number off the car?

Mr. Wexler: We object to the leading.

Q Well, if the Court please, the jury is out, and this

is cross examination. A I did copy down the serial num-

ber plate from the door of the vehicle.

[55] Q Did you have his permission to go out there?

A No, sir, I didn’t.

Q Now, you didn’t testify at the lower Court that

you were interested in buying this car? A Well, I had

heard the price mentioned.

Q Did you ever talk to Mr. Shelton here about the

car? A No, sir.

Q What kind of price had he give you on the car?

A Five hundred dollars was the price I heard Mr. Hens-

ley say. He is the one that told me.

Q But you didn’t talk to Shelton about the car? A

No, sir.

Q Of course, you knew Shelton was a used car sales-

man and had been for some period of time? A Yes, sir.

Q What date did you say this was? A I couldn't

say positive. It was sometime in January to the best of

my recollection.

Q Was this the later part of December? A I don’t

much think it was. It could have been after Christmas,

but I don’t much think it was. The best I recall it was

in January.

Q When Shelton came in you talked to him, did you

not, prior to going out to the car? A_ I believe he spoke

there in the building as he came through. [56] I believe

he spoke and went on out to look for some parts or some-

thing.

ng a 5 de lie

SLI S BG ED PTAA NA RELI IY SOILED ITS RN RNY ae

Q He was driving and had possession of the car? A

The best I recall he was with a couple of more boys that

came up at the same time.

Q Did you get permission for anyone to go out and

get this information off the automobile? A I did not.

Q Did you do anything further with this after Janu-

ary? A At the time I called in for the registration check

I didn’t receive a stolen report on the vehicle. Therefore,

I didn’t think anymore of it.

Q If it was a stolen car why didn’t you receive no-

tice of it? A In most cases they put a Stop or something

on it, that it is stolen. But in this case we didn’t get a

stolen report on it.

Q You had the man’s name and address didn’t you?

A I had his name and address, but I didn’t have any

knowledge that it was stolen.

Q But you suspected something? A Well, I only

called it in to see if it was on the registration check, but

I didn’t receive any notice back that it was stolen.

Q How come you to suspect the car was stolen?

[57] A Well, the price that it had been priced for was

very cheap.

Q Did you know the transmission was about out of

it? A No, I didn’t.

The Court: Well, Gentlemen, a question was

raised and the jury sent out about the legality or il-

legality of the search. These are other matters can

very well be testified before the jury. Now, any-

thing else about the search or what you call a search,

Mr. Cutshaw?

Q You had no search warrant? A No.

Q. That’s all.

—_7"

21

Re-Drrect EXAMINATION By Mr. WEXLER:

Q Officer Finchum, did you search it? A No, sir,

I didn’t search it. I just obtained the serial plate number

by opening the door on the driver’s side. I never entered

the car for any other purpose.

Q Did you get anything out of that car other than

what you wrote down? A No, sir, I did not.

The Court: The Court holds that if someone is

interested in buying an automobile he certainly has

a right to make a reasonable inspection of it. He

wasn’t hunting for any contraband. He was looking

for the serial number only. [58] The Court holds

that his testimony pertaining to that phase of it is

competent, but as to conversations with others, of

course, you will not go into that.

Mr. Cutshaw: If the Court please, we respect-

fully reserve exceptions. For the record we would

like to point out that he testified that he had a sus-

picion that the car was stolen and he went out there

without anyone’s permission and got the number off

the car for the purpose of checking. The defendant

was present there with him and he could have got

permission, yet he did not.

The Court: Well, Gentlemen, if he had reasona-

ble grounds that it was stolen he had a right to seize

it. The Court holds that what he did was not un-

reasonable. The law about searches and seizures is

for unreasonable searches and seizures. It doesn’t

apply to what is reasonable. So, let the jury come

back in please.

RES Se ee ee Nee eee

APTN MM LTT GET RET RIS Fi OT

WHEREUPON JURY RETURNS:

Drrect EXAMINATION CONTINUED:

Q Now, Officer Finchum, I believe we had gotten

to where you had certain conversations and you went out

to check the 1966 Mustang automobile that you heard was

for sale. What did you do when you got out there? A

I just casually looked at the car. Then I checked the

serial plate on the left door.

Mr. Cutshaw: Again we object to the introduc-

tion of this [59] evidence by Officer Finchum. On

the grounds that it was an illegal search and seizure

and that he had no permission whatsoever to open

the car door or to get any numbers or anything from

the automobile.

The Court: Your objection is overruled. You

may treat it as a continuing one, Mr. Cutshaw, if you

wish to.

Q At the time you went out to look at the automo

bile, where was David Shelton? A He had gone to the

rear of the building with a couple of other boys to look

for some parts.

Q Had there been some price given to you on this

car? A Yes, sir, they had.

Q All right, what price? A Five-hundred dollars.

Q. Were you interested in it? A Yes, if the trans-

mission and everything was good in it, yes, I was.

Q Say you look at the serial number on the door?

A I did.

Q All right, did you take down that serial number?

A I did.

The Court: All right, just a minute before the

Court forgets it. Gentlemen of the Jury, you will

not consider the fact of any price that was mentioned.

You may consider he was given a price, but you will

not consider five hundred [60] dollars or any other

price. That was not in the presence of the defend-

ant.

Q Which door did you obtain this number from?

A The left door, the driver’s side.

Q All right, and what number did you take down?

A The number that was on the serial plate on the door

was 6F07T180121.

Q All right, after you took that number down what,

if anything, did you do with it? A Sometime later dur-

ing the day I called Kingsport to get a 10-28 or registra-

tion check on the vehicle.

Q All right, did you get a reply as to that?

Mr. Cutshaw: Objection, Your Honor.

The Court: Sustained. He may state that he

got a reply, but not what the reply was.

Q Did you get a reply? A I did.

Q What is the procedure of getting a 10-28? A

Well, that is a routine check of the County Court Clerk

in obtaining the type of vehicle registered and the indi-

vidual the serial plate would be registered to.

Q Had you seen this automobile at any other time.

since that day in January or whenever that was at Hens-

ley’s Garage? A Yes, sir, I did.

Q All right, where did you see it? [61] A The

next occasion I had of seeing the vehicle was at the

American 11-E Station on US. 11-E.

Q All right, when was that? A It was the later

part of February to the best of my knowledge.

Q Who had it there, if you know? A Mr. Mun-

sey.

Q Was Mr. S. O. Trent around at that time? A At

this particular time I don’t believe he was. The best I

recall I was there and Mr. Munsey.

a

24

Q Now, did you and Mr. Munsey have any conver-

sation concerning this car, but don’t tell what it was?

A Yes, sir, we did.

Q Asa result of the conversation you had with Mr.

Munsey what, if anything, did you do? A _ I tried to ob-

tain the title or something from Mr. Munsey. At the time

I was unable to do so. He didn’t have the title to pro-

duce.

Q Have you seen this car at any other time other

than the garage and the service station? A No, sir.

Q Officer Finchum, at the time you went out to look

at this automobile at Mr. Hensley’s Garage, did you take

anything out of it? A No, sir, I did not.

[62] Q Did you search it? A I did not.

Q The only thing was what you wrote down on a

piece of paper? A, Yes, sir.

Q You may ask him.

Cross EXAMINATION BY Mr. CUTSHAW:

@ You took the number off of it, didn’t you? A I

wrote the serial number down on a piece of paper, yes, sir.

Q Officer Finchum, you recall testifying down in

the lower Court at the Preliminary Hearing, do you not?

A Yes, sir.

Q Do you recall testifying that you were out at the

A and 1 Garage talking to Embers Hensley? A I was.

Q David Shelton came up and went out in the yard

picking up some parts? A Yes, sir.

Q Do you recall testifying that you saw a car out

there and had some suspicion and then went out there

and got the number off of it? A I went out and got the

serial plate number, yes, sir.

Q You weren’t interested in buying that car now,

were you? [63] A Yes, sir, I buy a car every now and

then.

25

Q Did you ever talk to David Shelton here about

buying that car? A No, sir.

Q You never had seen the car prior to this time,

had you? A I believe I had seen the car prior to this,

but I never looked at the car or anything of that nature.

Q Of course, David Shelton lives here in Greene-

ville and has all his life hasn’t he? A Yes, sir.

Q Have you ever bought any cars from him before?

A No, sir, I haven’t.

Q Do you know what condition this car was in?

A Mechanically or what?

Q You didn’t drive it, did you? A I didn’t drive

it, no sir.

Q Did you have permission from Shelton to go out

there and look at it and get the numbers off the car?

A I did not.

Q Did you talk to him before you went there or

any other time about looking at the automobile? A I

did not.

Q Who else was present out there when you looked

at the car? A Mr. Hensley, Grant Green, and Obe Mar-

tin are the only ones that I can recall that were present

at the time.

[64] Q What is this number again that you said you

took off there? A 6F07T180121.

Q Did you write it on that sheet of paper there

that day? A I did.

Q Do you know who stole that car? A No, sir, I

don’t.

Q Don’t know anything about who stole it or who

brought it or who bought it to start with or anything

else? A I don’t.

Q Has anybody been convicted of stealing the car

to your knowledge? A No, I didn’t have any knowledge

of it at the time.

—

26

Q Has anybody been convicted of receiving and

concealing the car to your knowledge? A (No response)

Q You say this was in January when you were at

the garage? A Yes, sir.

Q Are you sure this wasn’t back in December? A

The best I recall it was after Christmas and I believe it

was in January.

Q You believe it was in January, but it could have

been in December? A Well, it could have been the later

part of December.

Q That car stayed around here in Greene County

for a long period of time, did it not? A Well, I don't

know how long. I seen Mr. Shelton driving [65] the car

prior to this occasion, but I wouldn’t know how long be-

cause he does drive a lot of different cars.

Q Did you know the transmission was about out of

the car? A_ I didn’t have any knowledge that the trans-

mission was bad.

Q Have you ever talked to Mr. Shelton about the

car? A No, sir.

Q That’s all, Your Honor.

Cross EXAMINATION BY Mr. RUSSELL:

Q Mr. Finchum, you say you checked this car some

time in January? A _ To the best of my knowledge it was

some time in January.

Q It was a 1966 green Mustang? A Yes, sir.

Q And what type of business does Mr. Hensley have?

A He has a used car parts. Where they buy wrecked

vehicles and dismantle them and sell used parts.

Q And this is located where? A Just northeast

of Greenville on Highway 97.

Q What we call the Kingsport Highway? A The

Kingsport Highway, approximately a mile from the City

Limits.

— ee ee ee ee ee -

27

Q Well, when you went up there to inspect this car,

did you understand it was owned by Mr. Hensley? A

Well, I didn’t go up there to inspect it. I was already [66]

up there working on a vehicle of mine.

Q Well, did you see the car pull up there or was it

already sitting there when you arrived? A It came in

while I was there. I seen Mr. Shelton and 2 more sub-

jects, I don’t know their names, come in.

Q They were driving it? A They got out of the

car and came in the building.

Q Now, you said you saw this car some other time.

Was this before or after you had---- A I had seen it

prior to this occasion, yes, sir. '

Q What was the occasion you happened to see this

car prior to this? A Just on routine patrol I observed

Mr. Shelton operating it.

Q Well, you said Mr. Munsey owned the car or had

it in his possession? A Yes, I seen it when Mr. Munsey

had it.

Q Was that after this occasion? A Yes, sir, it was

some time after I had observed the car at A and 1 that

Mr. Munsey had the car. It was quite some time after

that

Q_ I believe that is all.

Mr. Wexler: Officer Finchum, I believe you

have a paper that you wrote this information down

on? \

A Yes, sir.

Mr. Wexler: Will you file that as Exhibit Num-

ber 9 to your testimony?

[67] A Yes, sir.

Mr. Cutshaw: Object to the filing of that if the

Court please. This has got other things on there that

you wouldn’t let him go into.

NRA ACIP REED ROO, EE Ie Oy RHO PEERY ORY pet

OLE NERA eT LPI ee aT i 7 r a

28

Mr. Wexler: If the Court please, if they want to

cover that up that is alright.

Mr. Cutshaw: We don’t want to cover nothing

up. We are not hiding anything here.

The Court: The Court is attaching a paper to it.

The only part that shows is a number and says 66

Ford Mustang, dark green. The shape it is now it

may be filed as an exhibit.

Mr. Cutshaw: If the Court please, the defend-

ant objects to it being filed for 2 reasons. First of

all, it is not pertinent. Also, the other part the Court

ruled out on our objection thereto.

The Court: All right, objection is overruled. It

is a paper writing that he says he wrote down on that

occasion. Let it be filed as Exhibit number 9. You

may proceed.

Q That is all.

Mr. Cutshaw: One other question. Officer

Finchum, did you suspect the car was stolen when

you were up at the A and 1 Garage?

A Well, upon receiving information on the car, the

price I had received, naturally we had suspicion that it

might be stolen.

[68] Mr. Cutshaw: You mean a ’66 Mustang

with the transmission out and the - - -

Mr. Winstead: Object to that question. There

is no proof that the transmission was out, Your Honor.

The Court: Sustained.

Q You mentioned something a few minutes ago that

it would be a good buy if the transmission was not out

of it, did you not? A Well, from the overall appear-

ance the car would have been worth eight or nine hun-

dred dollars probably.

Q Do you know what David Shelton was doing up

there at that time? What kind of parts he was trying to

ae

buy for this automobile? A I do not. I never heard

him say.

Q And after you got the number you checked to see

if it was stolen? A I did. I called and got a registra-

tion check on the vehicle. Normally if an individual has

a car stolen they had a 10-44, what we call a stolen re-

port on the car, but it was not given back as a stolen car.

Therefore, I accepted it as not being a stolen car.

Q They gave you this man’s name when you were

checking it out, did they not? A Yes, they did, but they

obtained that name from the County Court Clerk’s Office.

[69] Mr. Wexler: Now, if the Court please, that

name is what he has objected to all along.

The Court: The Court sustains it as being argu-

mentative.

Q Did you contact the individual that this car be-

longed to? A Personally?

Q Yes. A No, sir.

Q Through your investigation did the Tennessee

[ Highway Patrol contact the individual to see if the car

was stolen or not? A Not normally on a registration

check. :

Q Well, what do you arrive at having a registration

check to see whose name it is, is to see whether the car

is stolen or not? A We check to see who the car is reg-

istered to and it is in that process that they tell us if the

car is stolen. Not in this case though, because it didn’t

come back as a stolen car.

Q You check the registration to get the person’s

name and then you don’t check the individual to see if

the car is stolen, is that what you are telling us? A In

most cases the County Court Clerk would know that the

vehicle had been stolen. In getting the 10-28 or regis-

tration check we come up with this stolen report. In this

case we did not come up with it. |

29

30

[70] Q Does the Tennessee Highway Patrol office

call the County Court Clerk’s of each county and advise

them that this car has been stolen? Is that the way this

procedure works? A The way it works. On a form

report the individual reports the car stolen to the local

law enforcement officers in their area. Notice goes out

on it. Then a registration check on that vehicle comes

back as a stolen vehicle, but we did not get that back on

this vehicle.

Q Are you trying to tell this Court and this Jury

that all you do is check and see whose name it is regis-

tered in and that’s all you do when you suspect that a car

is stolen? A That’s right.

Q Do you find any stolen cars? A _ Yes, sir, quite

a few.

Q The Clerk always notifies you when a car has

been stolen? A We get a reply that it is a stolen ve-

hicle.

Q From the County Court Clerk’s office? A Yes,

or from wherever we obtain the registration check from.

If it comes through the Sheriff’s Office of that county to

the County Court Clerk’s office it comes back as a stolen

vehicle.

Q When was the car stolen, do you know? A I

don’t know. I didn’t get the report on it that it was a

stolen car.

[71] Q How many times have you seen him driving

the car around Greenville here? A I wouldn’t have any

idea.

Q You saw him driving it after you took this down?

A No, I can’t say that I saw him driving it after this. I

saw the car after this. ,

| ~ Q Those other people that bought it have driven it?

A Yes.

@ That’s all,