Hunter v. State
| Decision Date | 14 February 1969 |
| Citation | 26 McCanless 672,440 S.W.2d 1,222 Tenn. 672 |
| Parties | , 222 Tenn. 672 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 |
Albert H. Boyd, Memphis, for Charles Hunter and Franklin Wright.
Russell X. Thompson, Memphis, for Ulous Harris, Earl Foster, Garfield Huston, Edgar Williams, Jr. and Elester Benton.
George F. McCanless, Atty. Gen., and Robert F. Hedgepath, Asst. Atty. Gen., Nashville, and Phil M. Canale, Jr., Dist. Atty. Gen., Memphis, prosecuted the case in the trial court.
This is an appeal by seven of the original eleven defendants from judgments of conviction for the offense of rape.
On September 21, 1965, Charles Hunter, Franklin Wright, E. L. Harris also known as Ulous Harris, Elester Benton, Booker T. Fossett, Edgar Williams, Jr., Johnnie Lee Green, Andrew Lee Pearson, and Earl Foster were indicted for rape--the unlawful carnal knowledge of a woman, forcibly and against her will. T.C.A. § 39--3701. On December 3, 1965, the indictment was amended by the Grand Jury for the purpose of adding the name of Garfield Huston. On December 14, 1965, the indictment was again amended and Amos Lee Marshall was made an additional defendant.
The trial commenced on January 18, 1966, and ran continuously for one month. During the process of the trial, on February 11, 1966, a nolle prosequi was entered as to the defendant Booker T. Fossett. On February 17, 1966, the jury, by its verdict, found Charles Hunter, Franklin Wright, Ulous Harris, Earl Foster and Garfield Huston guilty of rape, and fixed punishment at death by electrocution. Elester Benton, Edgar Williams, Jr. and Andrew Lee Pearson were also found guilty of rape, and their punishment was fixed at ninety-nine years in the State Penitentiary. The jury acquitted Johnnie Lee Green and Amos Lee Marshall.
Following the trial, lengthy written motions for new trial were filed by all convicted defendants. A hearing was held to consider the motions. The Court granted a new trial to Andrew Lee Pearson and overruled all other motions.
The seven convicted defendants have perfected an appeal to this Court. These plaintiffs in error will be referred to herein as Hunter, Wright, Harris, Foster, Huston, Williams and Benton. The defendant in error will be referred to herein as the State.
The evidence was that the rape occurred on November 14, 1964, in North Memphis, Tennessee. The two victims--white females, sixteen and fourteen years of age, respectively--had attended a drive-in movie with their dates, also white teenagers. The four youths left the drive-in theatre at approximately 10:00 P.M., and drove around a portion of Shelby County. They then drove to a secluded area in the vicinity of a large manufacturing plant. The driver parked the car in a narrow lane with the front of the vehicle headed in the direction of the main road. Approximately ten minutes later, a car approached and stopped directly in front of the white youths' car, blocking their exit. Eight to ten young Negroes jumped out of their car. The white youths tried to get away by backing their car down the narrow road, but succeeded only in driving off into a deep ditch. The Negro youths ran after the car, broke out some of the windows, and forced the white youths out of the car. Some of the Negro youths proceeded to forcibly sexually assault the two girls, while the remainder of the Negro youths held that victims' dates on the ground. Each girl was assaulted numerous times, with the whole episode lasting approximately one to two hours. We need not go further into detail; suffice it to say that this case represents one of the most heinous mass rapings the Court has had the displeasure to consider.
There are numerous assignments of error, which concern several aspects of the Tennessee criminal law and procedure. In summary, an examination is made into the law regarding (1) severance of co-defendants for trial (2) use of confessions in a joint trial (3) use of rebuttal testimony (4) right to a preliminary hearing (5) right to a court reporter under T.C.A. § 40--2029 et seq. (6) admissibility of confessions (7) use of admissions by conduct (8) requirements of disclosure of statements and evidence by the attorney general (9) effect of improper remarks and conduct by the attorney general (10) constitutionality of the rape statute and the punishment imposed by it, and (11) powers of the trial court in controlling the conduct of the trial.
All defendants, with the exception of Wright, assign as error the action of the trial judge in overruling their motions for severance. This Court has previously held that the granting of a severance is within the discretion of the trial judge. The test to determine if the trial judge was in error in failing to grant a motion for severance is whether or not the defendant was clearly prejudiced in his defense by being jointly tried with his co-defendants. Ellis v. State (1966) Tenn., 403 S.W.2d 293; Tomlin v. State (1960) 207 Tenn. 281, 339 S.W.2d 10; Stallard v. State (1948) 187 Tenn. 418, 215 S.W.2d 807. As aptly pointed out in Ellis v. State, supra, the difficult inquiry which must be made on appeal to answer this assignment is whether or not the defendant was clearly prejudiced to the point that the trial court's discretion ended and the granting of severance became a judicial duty.
In the present case motions for severance were made by nine of the eleven defendants. The principal grounds asserted by these motions were (1) that the defendant could not receive fair and impartial consideration by the jury if tried with the other defendants, and (2) that it was prejudicial to the rights of those who did not confess to be tried with those who did confess. A full hearing was held on the motions for a severance. The record of that hearing has been preserved in a wayside bill of exceptions. It was concluded by the trial judge, and it is obvious to this Court upon examination of the proceedings, that the only way to indulge all the requests for severance would be to grant a separate trial for each defendant. Other motions sought to split the defendants into various groups for purposes of trial. Taken together, the motions urged that the defendants be tried either alone, or together in groups consisting of: (1) Those that were named in any of the confessions; (2) those that were not named in any of the confessions; (3) those that confessed; (4) those that were named in the confessions and stood mute; (5) those that were not present when certain of the confessions were made; or (6) those that were present when certain of the confessions were made.
Had the defendants' insistences been the sole consideration of the trial court, it is obvious that it would have granted separate trials to each. However, the trial court was involved in a process of balancing the interests and rights of the individual defendants against those of the State. This guideline was enunciated by this Court in the case of Woodruff v. State (1932) 164 Tenn. 530, 51 S.W.2d 843:
We have examined the allegations of prejudice resulting from the joint trial and find that they do not evidence an abuse of discretion on the part of the trial judge in refusing to grant the requested severances.
Specifically, it is first asserted that the defendants were denied a competent jury in the joint trial because the trial judge failed to excuse jurors for cause on the ground of inability to render a fair and just verdict. When asked on voir dire whether or not it was possible to keep facts and faces separate, all but one of the prospective jurors answered that he would have difficulty in this regard. Under the circumstances, some reservation in answer to such a question was not improper. The trial judge personally sought a determination of whether or not each juror could and would perform to the best of his ability. His ruling in this regard is given great weight. Thomas v. State (1902) 109 Tenn. 684, 75 S.W. 1025. We must conclude from a review of the record that the defendants had the benefit of a fair and impartial jury, and that there was no abuse of discretion by the trial judge in refusing to disqualify a juror merely because he might have trouble comprehending the vast amount of testimony. The record clearly shows that the trial judge made continual efforts during the trial to insure that the jury properly digested and separated the facts.
Secondly, it is urged that the defendants were prejudiced by the joint trial, in that they were subjected to the contents of confessions implicating some of the defendants and exonerating others. The defendants rely heavily upon Stallard v. State, supra, where this Court said:
'(2) In 23 C.J.S. Criminal Law § 935, it is said: 'If one of several defendants jointly indicted has made admissions or confessions involving another defendant, the court may, in its discretion, order a separate trial, so that the admissions or confessions, while evidence against the one, may not prejudice the other, and where the circumstances are such that an instruction to disregard the confession of one when considering the guilt of another would prove ineffective to eradicate the impression on the jury the severance should be...
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