Mackey v. State

• Decision Date: 28 January 1975
• Citation: 537 S.W.2d 704
• Parties: Andrew MACKEY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 704

537 S.W.2d 704

Andrew MACKEY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Jan. 28, 1975 Certiorari Denied by Supreme Court April 12, 1976.

Charles O. Ragan, Jr., Chattanooga, for plaintiff-in-error.

R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Stephen M. Bevil and Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant-in-error.

OPINION

WALKER, Presiding Judge.

In two cases heard together the jury convicted Andrew Mackey, the defendant below, of rape and fixed his punishment at 65 years and of armed robbery and fixed his punishment at 20 years in the penitentiary. The trial judge ordered consecutive sentences. Mackey appeals in error.

The state's evidence showed that about 1:30 p.m., April 24, 1974, Mrs. Laura Cline was alone in her Chattanooga home when the defendant, wearing a hard hat, rang her doorbell. He told her he worked for the electric power board and had been sent there to cut trees. A power board truck, later found to have been stolen, was parked outside.

Mackey looked up and down the street, asked if her husband were home; and when she said he was not, he forced his way into the house, choking her with one hand and holding a screwdriver to her ribs with the other. He demanded that she take off her pants. They struggled and she tried to divert him by offering him money. After taking money from her wallet and from a small wooden bank (plus money from another little bank), he finally forced her into the bedroom where he raped her.

Mackey demanded to know if there were any rifles in the house and threatened to kill her if she lied to him. After first telling him they had none, she told him the location of the gun cabinet and he took two rifles out of it.

After raping Mrs. Cline, he tied her up, ordered her to remain quiet and proceeded through the house, returning from time to time to see that she was still tied. He learned from her the location of the telephone and ripped it from the wall. He told her that if she called the police he would come back and kill her and further that if she called the police he would go to the penitentiary.

Mrs. Cline was finally successful in freeing herself and ran into the street half clothed and told the first person she saw that she had been raped. Mackey also ran from the house, leaving the hard hat there, and fled in the truck.

Mackey's fingerprints were found on the wooden bank he had broken into. Mrs. Cline gave his description to police and positively identified him at the trial. He was arrested in Georgia and confessed there to Chattanooga officers. His written confession of both crimes was admitted into evidence. In it he detailed his activities before, during and after the crimes.

The defendant filed a plea of not guilty and not guilty by reason of insanity. He did not testify before the jury but offered testimony from his mother and father as to his mental condition. They said that in the months before these incidents the defendant was not acting normally and seemed 'off;' that he had suffered a head injury in high school and his behavior had changed. His parents said he did not appear to know the difference between right and wrong although they retreated from this to some extent on cross-examination.

In rebuttal the state called Dr. James Cheatham, a psychiatrist, who said he examined the defendant July 8, 1974, at the Hamilton County jail and found him to be without any mental disorder and competent to stand trial. In his opinion the defendant on April 24, 1974, had the mental capacity to distinguish right from wrong.

A number of assignments of error concern the defendant's sanity, both present and at the time of the crime.

In challenging the trial court's denial of his plea of present insanity, the defendant insists that he was entitled to a jury trial of that question, relying principally on Caruthers' History of a Lawsuit, Eighth Edition, Sec. 735.

In Cogburn v. State, 198 Tenn. 431, 281 S.W.2d 38 (1955), our Supreme Court said:

". . . (T)he method that shall be ordered of determining the present sanity of the accused before the beginning of the trial generally rests in the discretion of the trial judge, with or without the aid of a jury. He may inquire into the facts himself, or he may impanel a jury for the purpose if he sees fit, or he may submit the question as an issue to the trial jury."

Under this rule a defendant is not entitled to a jury trial on the issue of present insanity. The trial judge can make the determination himself which he did here. On the basis of all the relevant information before him, the trial judge found the defendant competent to stand trial. More was not required and this assignment is overruled.

Related to the first assignment are those saying (a) the court erred by denying his pretrial motion for a psychiatric examination; (b) the brief examination of defendant by Dr. Cheatham was so inadequate that it deprived him of his due process rights and (c) the court erred in denying the defendant's pretrial motion for an evidentiary hearing on the motion for psychiatric examination and for a subpoena to compel the attendance of Dr. Cheatham to determine if his examination was fair and adequate.

On January 6, 1975, the defendant filed a petition for psychiatric examination which was overruled January 20,1975. An oral motion to rehear was then made and denied that day and renewed and denied on the trial date, January 28, 1975. The defendant says he was denied due process of law based on TCA 33--708 and United States Supreme Court decisions.

Both Tennessee decisions and the federal constitution prohibit the trial of a defendant whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). See Cogburn v. State, supra. In Drope and Pate the court determined that the state statutes of Missouri and Illinois were constitutionally adequate but declined to hold they were constitutionally mandated. The court said the state statutes there jealously guarded the rights of the defendant in this regard.

TCA 33--708 (Evaluation of an accused believed incompetent to stand trial) protects these rights and says basically that when a person charged with crime is believed to be incompetent to stand trial the court, on its own motion, that of defense counsel or others, May order the defendant evaluated. The standard is one of 'belief' and the judge has discretion as is indicated by the use of 'may' in ordering an evaluation. (emphasis added)

The Drope court in discussing Pate noted that Pate did not prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Drope said that evidence of a defendant's irrational behavior, his demeanor at trial and any prior medical opinion on competence are all relevant on the issue, but there are no fixed or immutable signs which indicate the need for further examination.

Under these standards the trial court did not err in denying the motion for a further examination. He had before him a recent report of a psychiatrist finding the defendant competent to stand trial along with a 1971 report to the same effect. Even Dr. Conroy's 1970 report...