Lackey v. State

• Decision Date: 21 November 1978
• Citation: Lackey v. State, 578 S.W.2d 101 (Tenn. Crim. App. 1978)
• Parties: Terry Lee LACKEY, a/k/a Terry Lee Jarnigan, and Diane Lackey, a/k/a Diane Jarnigan, Appellants, v. STATE of Tennessee, Appellee. 578 S.W.2d 101
• Court: Tennessee Court of Criminal Appeals

Page 101

578 S.W.2d 101

Terry Lee LACKEY, a/k/a Terry Lee Jarnigan, and Diane Lackey, a/k/a Diane Jarnigan, Appellants, v.STATE of Tennessee, Appellee.

578 S.W.2d 101

Court of Criminal Appeals of Tennessee.

Nov. 21, 1978 Certiorari Denied by Supreme Court Feb. 20, 1979.

Ben W. Hooper, II, Newport, Richard W. Pectol, Johnson City, for appellants.

William M. Leech, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, William M. Leibrock, Asst. Dist. Atty. Gen., Newport, for appellee.

OPINION

WALKER, Judge.

Under a two-count indictment, Terry Lee Lackey, a/k/a Terry Lee Jarnigan, and Diane Lackey, a/k/a Diane Jarnigan, husband and wife, were charged with willful injury of another, Edna Stamey, by explosives (TCA 39-4912) and with malicious injury to personal property, a Chevrolet automobile, by explosives (TCA 39-1402).Similar charges were made against John Stamey, husband of the alleged victim, but he entered a plea of guilty the day before this trial and his case was disposed of at that time.The appellants will be referred to as Jarnigan since they are generally known by that name and prefer it.

On their joint trial in Cocke CountyOctober 19-21, 1977, Terry Lee Jarnigan was convicted of willful and malicious injury of another by means of an explosive and of willful and malicious destruction of property by means of an explosive, and was sentenced to consecutive terms of not less than 151/2 years nor more than 21 years.Diane Jarnigan was convicted of aiding and abetting in these offenses and was sentenced to concurrent terms of ten years.

This case arose out of the dynamiting of the car of Mrs. Edna Stamey in Newport on April 14, 1977, as the result of which Mrs. Stamey lost both of her feet and sustained other personal injuries.

Both appellants contend that they were denied their right to a fair and impartial trial by the court's denial of their motions for change of venue and the motion to quash the venire and by the court's leading questions on voir dire.

This case was the subject of pretrial publicity and a number of potential jurors had read or heard about the facts of the case prior to trial.Some knew that Terry Jarnigan had previously been convicted of arson.In ruling on the motion for a change of venue, the trial judge conditionally denied it but reserved a final decision to be based on how the jury selection proceeded.He stated that if a proper jury, free from bias, prejudice or opinion, could be selected, then the motion would be denied; however, if a proper jury could not be selected, then the motion would be granted.The question for determination here is whether or not the jurors who actually sat and rendered the verdict in this case were prejudiced by that publicity.Adams v. State, 563 S.W.2d 804(Tenn.Cr.App.1978).

At the request of the appellants, the court held the examination of the prospective jurors in his chambers out of the presence of the tentatively selected jurors and other prospective jurors.Although this procedure was desired by the appellants, we do not approve the conduct of this part of the trial out of the courtroom and out of the presence of the public.When the court considers it advisable to examine prospective jurors out of the presence of others, the prospective jurors should be kept from the courtroom and then called individually into the courtroom for their examination in a public trial.

The jurors were carefully examined by the court, the state and both defense counsel to determine that they could be fair and impartial and were then sequestered.Although the appellants used all of their challenges, there is nothing to show that any juror was other than fair.Three of the jurors selected stated that they were aware of the reputation of Terry Jarnigan, but all stated that they could lay that aside and try the case strictly on the evidence and the law charged by the court.Three others and the alternate indicated that they had seen the publicity regarding the guilty plea of Stamey (a local newspaper had been in the courtroom that morning but was confiscated on order of the court), but said that would not affect their disposition of the case, which they would decide only on the basis of evidence heard in court.Every juror selected to sit swore to make a decision wholly on the evidence presented in court and that he or she would give a fair verdict, dismissing anything he or she might have heard or read about the case.

In his examination of the prospective jurors, the trial judge did not abuse his discretion.It is proper for him to take part in this examination.SeeState v. Jefferson, 529 S.W.2d 674, 684(Tenn.1975).Any juror who indicated partiality was either excused for cause by the court or was challenged peremptorily.

The mere exposure of jurors to newspaper publicity is not constitutional error.Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589(1975).One who is reasonably suspected of a serious crime cannot expect to remain anonymous.Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344(1977);Murphy v. Florida, supra.In Murphy, the United States Supreme Court said:

"Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard.It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' "(citation omitted)

The question of change of venue is largely within the discretion of the trial judge, and we may not reverse his action unless there is a clear abuse of discretion.Adams v. State, supra;Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907(1971).The jury was composed of unbiased and unprejudiced jurors whose deliberations required six hours, and no prejudice has been shown.These assignments are overruled.

Diane Jarnigan moved for the judge to recuse himself on the ground that the judge's association with Edna Stamey, the victim of the crime, would result in inadvertent prejudice against the appellant and prevent her from obtaining a fair and impartial trial.

At the pretrial motion to recuse himself, the trial judge announced that, when in private practice, his firm had employed Edna Stamey as a secretary.She retained that position for about five years, until 1964.Since that time there had been no business or social relationship between them.In denying the motion the trial judge said that this case was no different from any other, and he held without hesitation that an absolutely fair and impartial trial could be granted without any impropriety or appearance of impropriety in view of the essentially severed relationship of 13 years ago.

While a trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned, the trial judge here had no doubt of his ability to preside fairly.SeeABA Standards Relating to The Function of the Trial Judge, sec. 1.7, circumstances requiring recusation.There is nothing here to show that this past association biased the trial judge against the appellants.SeeMoore v. State, 568 S.W.2d 632, 635(Tenn.Cr.App.1978).

Diane Jarnigan urges that the court erred by refusing her motion for severance.She insists that the jurors' knowledge of the reputation of her codefendant and of the guilty plea of Stamey required her case to be severed for her to have a fair trial.She also contends that she was unable to cross-examine her codefendant because he did not take the stand.

The guilty plea of John Stamey prior to trial is irrelevant on the question of severance of her case from that of her codefendant.Even if Diane Jarnigan had been tried separately, the proof at trial would have necessarily shown that her husband, the codefendant, was involved.All of the jurors repeated that they would not consider Terry Jarnigan's reputation or the plea of guilty by John Stamey.In Dorsey v. State, 568 S.W.2d 639(Tenn.Cr.App.1978), we found no prejudice when the trial judge refused a severance after a codefendant entered a plea of guilty.While Diane Jarnigan cites her inability to cross-examine her codefendant, no Bruton question is involved.(Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968).)No prejudice has been shown and the trial judge did not abuse his discretion in denying the severance.

Both appellants challenge the sufficiency of the evidence.

The state's evidence showed that about 8:00 p. m. on April 14, 1977, Edna Stamey drove her Chevrolet automobile to the Westgate Shopping Center parking lot in Newport at the request of her husband, John Stamey, and left it there while she accompanied him to White Pine.Her lights were on when she drove to the parking lot.On their return from White Pine, her husband stopped his truck 30 or 40 feet from her car and let her out.She testified that he"shot out of the parking lot like a bullet."Mrs. Stamey got in her car, started the engine and turned on the lights; an explosion immediately occurred, blowing off both her feet, breaking her right wrist and leg and mutilating a hand.The car, of course, was badly damaged.In Mrs. Stamey's absence while the car was on the parking lot, someone had placed dynamite and a blasting cap in the unattended car and had attached wires to its parking lights so that when the lights were turned on the dynamite would explode.Mrs. Stamey had several insurance policies on which her husband had been named beneficiary, a fact of which he was aware.Unknown to him, however, she had changed the beneficiary.She further testified that the appellants knew her...