FILED

July 24, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE 1998 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9707-CR-00255

Appellee, )

) SHELBY COUNTY

VS. )

) HON. BERNIE WEINMAN,

IRA BARBER, ) JUDGE

)

Appellant. ) (Aggravated Robbery)

FOR THE APPELLANT:

BRETT B. STEIN

236 Adams Avenue

Memphis, TN 38103-1922

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

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
2

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
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

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.
4

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