McCracken v. State

• Decision Date: 11 March 1975
• Citation: 529 S.W.2d 724
• Parties: Louis Allen McCRACKEN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 724

529 S.W.2d 724

Louis Allen McCRACKEN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

March 11, 1975 Certiorari Denied by Supreme Court June 30, 1975.

E. G. Moody, Kingsport (appointed), for plaintiff in error.

Milton P. Rice, Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Blountville, for defendant in error.

OPINION

OLIVER, Judge.

Louis Allen McCracken, an inmate of the State Penitentiary where he is serving three consecutive felonious assault sentences of not less than three nor more than 18 years adjudged in the Criminal Court of Sullivan County on January 28, 1972 while represented by appointed counsel, as he is in this proceeding, has appealed to this Court from the judgment of that court dismissing his post-conviction petition after an evidentiary hearing. His felonious assault convictions and sentences were affirmed on direct appeal to this Court. McCracken v. State (Tenn.Cr.App.1972), 489 S.W.2d 48.

We may take judicial notice of the record of the petitioner's direct appeal to this Court. State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 615, 448 S.W.2d 82; Canupp v. State, 3 Tenn.Cr.App. 249, 250, 460 S.W.2d 382; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667. Accordingly, we have carefully reviewed McCracken's entire trial record.

It is well to mention at the outset that relief under our Post-Conviction Procedure Act is granted '. . . when the conviction or sentence is void or voidable because of the abridgement in any way of any right guaranteed by the constitution of this state or the Constitution of the United States, including a right that was not recognized as existing at the time of the trial if either constitution requires retrospective application of that right.' TCA § 40--3805.

In his present petition McCracken charged that he was denied his right to a preliminary hearing, that he was never advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 nor allowed to call an attorney, that he was denied his right to an attorney at his arraignment, that his appointed trial attorneys inadequately and ineffectively represented him because they did not call his available subpoenaed witnesses and tricked him into keeping his witnesses off of the witness stand by assuring him that in the event of conviction he would be granted a new trial in 30 days, and that the verdicts of the jury were improperly rendered in the assault cases because the trial judge required the jury to state its verdict separately in each case. In his petition he also included a motion for a copy of the transcript of his original trial. In his Assignments of Error here he complains that the trial judge ruled against him on each point.

In the evidentiary hearing upon this petition, McCracken testified he was arrested June 21, 1971 and was indicted on June 29, 1971 and arraigned later the same day; that the same day, June 29th, when he was taken to Bristol for a preliminary hearing which he had requested, the officers escorting him were told by Deputy Sheriff Teamer that the grand jury had already returned eight indictments against him and instructed them to return him to jail. (The original trial record brought before this Court on the defendant's direct appeal shows that the three felonious assault presentments and also five kidnapping presentments were returned against the defendant by the grand jury on June 29, 1971, each charging the offense was committed on June 21, 1971, and James Teamer was named as the prosecutor in each presentment). He said he was denied a preliminary hearing and that no attorney had been appointed for him at that time and he had not been advised that he was entitled to counsel. He conceded that the presentments against him were returned before he requested a preliminary hearing, and also stated he knew of no way he was prejudiced by not having a preliminary hearing.

McCracken also testified that on Thursday, June 24, 1971, three days after he was arrested, he was taken to a room in the jail and there questioned by Deputy Teamer; that he was never advised of any of his rights at that time and was not allowed to make a telephone call to a lawyer although he asked permission to do so; that he does not know what he told Officer Teamer, if anything, which would incriminate him and does not know what the officer did with the information he obtained in the interview; and that he did not subpoena Teamer for the evidentiary hearing.

With reference to his trial counsel, the petitioner testified that counsel was first appointed for him on July 7, 1971; that that attorney withdrew and some three weeks later another was appointed; that the latter also withdrew, purportedly because of their inability to get along; that the two attorneys who finally represented him at his trial were appointed about the first of September and his trial began on October 5, 1971; and that, until he was found guilty, he had no complaints against his trial counsel. He said 'They tried.'

With respect to his charge that his attorneys assured him he would be granted a new trial if convicted, the petitioner testified that while the last prosecution witness was testifying, his appointed Attorney Edwards told him that he should not testify or present any witnesses, because they had reached an agreement with the judge and the Attorney General that he would get a new trial within 30 days, and his other trial counsel (Attorney Tate) was present when Edwards told him of the agreement; that neither the District Attorney General nor the trial judge ever said anything to him about any such agreement.

Concerning his charge that his trial attorneys did not call his witnesses, he testified they did not call three named witnesses he had them subpoena, and that he asked them to subpoena four other named witnesses and they failed to do so. But he also conceded that he did not know what any of those persons would have testified if they had been called as witnesses.

According to the petitioner, the gist of his complaint about the manner in which the jury announced the verdicts was that the trial judge asked the jury to specify in each of the assault cases the name of the person assaulted. Where by consent several indictments against an accused are tried together, a separate verdict must be rendered on each and the jury should distinguish between the indictments in their verdicts. 23A C.J.S. Criminal Law § 1404; Fontaine v. State, 65 Tenn. 514.

Attorney Wythe Edwards, one of the petitioner's appointed trial attorneys, testified that he never guaranteed the petitioner a new trial; that he talked several times with the petitioner about the case and that it was the petitioner himself who decided, during a trial recess, not to put on a defense; that the petitioner and the two trial attorneys had a complete discussion concerning the options available to him and he then decided not to testify or put on any witnesses; that he interviewed all the witnesses the petitioner mentioned to him; and that he appealed the conviction all the way to the Tennessee Supreme Court and was able to get five of the eight convictions reversed on appeal. The other appointed trial attorney for the petitioner testified that he never heard Edwards guarantee the defendant a new trial, nor did he ever do so himself, and that it was the defendant who made the decision not to put on any defense.

The record of the petitioner's trial shows that an attorney was appointed to represent him on 2 July...