McCook v. State
| Decision Date | 22 March 1977 |
| Citation | 555 S.W.2d 411 |
| Parties | Charles I. McCOOK and Jimmy Richardson, Appellants, v. STATE of Tennessee, Appellee. 555 S.W.2d 411 |
| Court | Tennessee Court of Criminal Appeals |
Thomas E. Stamper, Clarksville, for McCook.
Collier Goodlett, Jr., Clarksville, for Richardson.
Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, John J. Hestle, Dist. Atty. Gen., Clarksville, for appellee.
OPINION
Charles McCook and Jimmy Richardson were indicted for kidnapping, rape, armed robbery, assault and battery with intent to murder and grand larceny. McCook was convicted of kidnapping and sentenced to serve four (4) to ten (10) years; on rape he was convicted and sentenced to serve ninety-nine (99) years; he was convicted of simple robbery and sentenced to serve from five (5) to ten (10) years; on grand larceny he was convicted and sentenced for six (6) to ten (10) years. He was acquitted of the charge of assault and battery with intent to commit murder. Richardson was sentenced to four (4) to ten (10) years for kidnapping; ninety-nine years (99) for rape; life imprisonment for armed robbery; and six (6) to twenty-one (21) years for assault and battery with intent to commit murder; and six (6) to ten (10) years for grand larceny. All of the sentences for both defendants were set to run consecutively.
By his first assignments McCook contends it was error to consolidate all the cases for trial, and that the verdicts were contrary to the law.
It is his contention that the minds of the jury were inflamed resulting in the imposition of excessive sentences because of the submission of five felony charges at one trial. Consolidation of separate indictments for trial is a procedural matter which is discretionary with the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758; Withers v. State, 523 S.W.2d 364 (Tenn.Cr.App.1975). All of the charges alleged in each indictment grew out of the same incident. Each of the offenses involved the same victim and were so involved with each other it was a relative impossibility to avoid introduction of evidence of one or more of the occurrences in any offer of proof of the others. The reasoning involved in consolidation of separate indictments for trial is fully set forth in Bruce v. State, supra, and that reasoning is applicable to the facts of this case. The jury acquitted McCook on the assault charge, and refused to find him guilty of armed robbery, returning a considerably lesser sentence against him than for his co-defendant. There is no evidence that the jury were inflamed or impassioned in any manner in returning their verdicts which were clearly within the ambit of the law of the case. Assignments of error 1 and 2 for McCook are overruled.
Each of the defendants charge error to the action of the trial judge in directing the sentences imposed by the jury to be served consecutively.
It is McCook's contention that his participation in the offenses was of a lesser degree than that of his co-defendant and therefor the trial judge abused his discretion in ordering consecutive sentences. Richardson merely generalizes that the imposition of consecutive sentences virtually removes him from consideration for parole.
The criteria to be followed by a trial judge in determining whether adjudicated sentences should be served consecutively or concurrently are set out in Gray v. State, 538 S.W.2d 391 (Tenn.1976).
There was a hearing in the trial court regarding the sentencing of defendants. In his order ruling that defendants serve consecutive terms the trial judge held, "that the defendants were dangerous to society in that the acts were done suddenly and that two human beings had another human being under their control and violently abused her and raped her and stole from her and left her for dead." This was a heinous, violent, premeditated and brutal crime engaged upon fully by each of the defendants without any indication of mercy for their victim. It is true that McCook did not actively participate in the armed robbery phase of the encounter, but the jury exonerated him of that charge, as well as the assault to murder. The evidence is plain that he participated or aided and abetted in all of the acts of which the jury found him guilty. We do not find any abuse of discretion on this issue and the assignments are overruled.
Both defendants claim error because they say the trial judge refused to excuse a juror for cause after the juror stated on voir dire examination that he thought maximum punishment should be given in every case and would expect to do so because he had previously been the victim of criminal offenses.
The assignment of error does not accurately state the facts insofar as the attitude of the challenged juror is concerned. His actual statement was that he felt a maximum sentence should be imposed if the evidence indicated a defendant was actually guilty. The juror was interrogated by both counsel and the court and said he could render a fair and impartial verdict, as well as follow the instructions of the court on the penalty for various offenses. He said he could be objective in determining the guilt or innocence of a defendant. There is no doubt he was a competent juror. Moreover, a defendant cannot complain of failure to excuse a juror for cause when he has not exhausted all of his peremptory challenges. Hale v. State, 198 Tenn. 461, 281 S.W.2d 51; Prince v. State, 529 S.W.2d 729 (Tenn.Cr.App.1975); Harris v. State, 534 S.W.2d 868 (Tenn.Cr.App.1975). The assignment cannot be sustained.
Defendant Richardson says it was reversible error to allow the admission in evidence over his objection of a taped interview with his co-defendant.
The statement of defendant, McCook, referred to, was quite comprehensive. It was redacted to expunge any...
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State v. Reid
...v. Coury, 697 S.W.2d 373, 379 (Tenn. Crim. App. 1985) (citing Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn. Crim. App. 1977)). Further, the record shows that the jury that heard the case was fair and impartial. There is nothing in the record......
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State v. Hall
...to consolidate separate indictments is a procedural matter which is within the discretion of the trial court. McCook v. State, 555 S.W.2d 411, 412 (Tenn.Crim.App.1977). Having consolidated the offenses pursuant to Rule 8(b), the appropriate standard for evaluating whether a severance should......
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State v. Reid
...v. Coury, 697 S.W.2d 373, 379 (Tenn.Crim. App.1985) (citing Hate v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn.Crim. App.1977)). Further, the record shows that the jury that heard the case was fair and impartial. There is nothing in the record to ......
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Thacker v. State
...697 S.W.2d 373, 379 (Tenn. Crim. App. 1985) (citing Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (Tenn. 1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn. Crim. App. 1977)). As previously stated, the jurors about whom the Petitioner complains were qualified to sit on the jury, and the trial ......