Rucker v. Tollett
| Decision Date | 13 October 1971 |
| Parties | Daniel RUCKER, Petitioner, v. Lewis S. TOLLETT, Warden, Respondent. |
| Court | Tennessee Court of Criminal Appeals |
Dalton L. Townsend, Knoxville, for petitioner.
David M. Pack, Atty. Gen., Thomas E. Fox, Deputy Atty. Gen., Nashville, for respondent.
Without an evidentiary hearing, the trial judge dismissed this petition for postconviction relief. The petitioner, Daniel Rucker, appeals.
The sole question presented by the petition is that the official court reporter was permitted to testify at he trial as a witness to the voluntariness of the petitioner's confession which he had previously taken as the reporter. He claims the reporter's presence in the courtroom while other witnesses testified violated the petitioner's constitutional rights.
The exclusion of witnesses from the courtroom is not a matter of right, but is within the discretion of the trial judge. State ex rel. Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d 489; Nance v. State, 210 Tenn. 328, 358 S.W.2d 327. This assignment raises no constitutional question and it is overruled. See State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310.
Rucker also assigns as error the failure of the trial judge to grant an evidentiary hearing. He contends that T.C.A. 40--3810 authorizes a hearing if he has had no prior one and that in this case he has raised a substantial question. The record shows that this petitioner has had a prior evidentiary hearing. We do not think this statute requires a hearing for meritless petitions.
He further contends that he should receive relief because the district attorney general filed his answer 88 days after the petition when he was allowed only 30 days. Rucker was not prejudiced by this delay.
All assignments are overruled and the judgment is affirmed.
I concur with the majority opinion in this case, however, I consider it pertinent to point out that TCA Sec. 40--3814, is mandatory as it applies to the duties of the District Attorney General. See Brown v. State, Tenn.Crim.App., 445 S.W.2d 669. In this case the trial court allotted 30 days in which the District Attorney General was to file responsive pleadings. It appears that it was some 88 days after the amended petition was filed before an answer was submitted. No reason for the delay appears in this record.
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Russell v. State
...Nance v. State, 210 Tenn. 328, 358 S.W.2d 327; State ex rel. Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d 489; Rucker v. Tollett, Tenn.Cr.App., 475 S.W.2d 207. In Nance, supra, the Court 'Since probably the beginning of time in the trial of cases witnesses have been sequestered by order......
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State v. Beltran-Felix
...process does not automatically require separation of witnesses who are to testify to the same set of facts."); Rucker v. Tollett, 4 Tenn.Crim.App. 672, 475 S.W.2d 207, 208 (1971) (finding trial court's refusal to exclude witnesses from the courtroom "raises no constitutional question"). Our......
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State v. Hudson
...necessarily cannot be limited. Hicks v. State, 480 S.W.2d 357 (Tenn.Cr.App.1972). The appellant's reliance on Rucker v. Tollett, 4 Tenn.Cr.App. 672, 475 S.W.2d 207 (1971), as authority for permitting the court reporter to read appellant's testimony at the suppression hearing is misplaced. T......