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State v. White3/11/2002
. 01-C-01-9607-CC-00300, Sequatchie County (Tenn. Crim. App. Oct. 24, 1997). Moreover, the defendant abandoned the truck and fled the scene. Even if the defendant had not been arrested, it would have been reasonable for the officers to remove the truck from private property and impound and inventory it for safekeeping. Under the circumstances in this case, the evidence used by the state did not flow from the initial stop. The trial court properly allowed its use.
II. FLIGHT INSTRUCTION
Petitioner complains about the trial court's instructing the jury regarding a person's flight justifying an inference of guilt. He contends that the instruction was unduly prejudicial to him regarding the aggravated burglary charge. He notes that any flight occurred on the day of his arrest, not on the day of the burglary. The state's reply does not particularly address this argument, although it asserts that any error was harmless.
The defendant relies upon this court's previous opinions reflecting that the charge of flight is applicable only if there is both a leaving the scene of the difficulty and a subsequent evasion or hiding out. See State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989); Rogers v. State, 2 Tenn. Crim. App. 491, 502, 455 S.W.2d 182, 187 (1970). He argues that in order to justify a flight instruction, there must be flight from the vicinity of the difficulty, not flight at some later time. To the contrary, our cases permit an instruction on flight when the defendant flees at a later time rather than immediately after the commission of the crime. See, e.g., Payton, 782 S.W.2d at 498 (approving the flight instruction for the defendant's flight when encountered by the police at his brother's duplex or a nearby yard later on the day of the offenses, which occurred at entry of the adjoining duplex); Rogers, 2 Tenn. Crim. App. at 501-02, 455 S.W.2d at 186-87 (affirming the flight instruction for the defendant's traveling out of state on the day after he raped the victim in his home and again in her house, which was on the same street). In State v. Williams, 638 S.W.2d 417 (Tenn. Crim. App. 1982), the defendant argued that the flight instruction was improper because he and co-defendants were not fleeing at the time the police encountered them. In that case, the defendant and others robbed a convenience store and left. Officers located the car, in which the defendant was a passenger, pursuant to a dispatched license plate number. The car was proceeding normally at the time the officers spotted it. After following the car for a brief period and observing the defendant place something under the seat, the officers attempted to stop the car, which sped off, and a chase ensued. This court observed that any indication after the crime of the defendant's "desire to evade prosecution may be shown as one of a series of circumstances from which guilt may be inferred." Id. at 421. Thus, the jury could properly consider the subsequent fleeing from the police as a circumstance indicating flight even though the car in which the defendant was riding was not fleeing at the time the police spotted it. Id. at 422. These cases indicate that the flight need not be from the crime scene immediately after the completion of the crime.
In any event, we note that items taken in the burglary were found in the defendant's truck. Therefore, the jury could reasonably infer that a motivation for the defendant's attempt to evade arrest was to thwart discovery of the stolen property. The trial court's instruction on flight was proper.
Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.
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