State v. Bennett
| Decision Date | 07 June 1990 |
| Docket Number | No. 230,230 |
| Citation | 798 S.W.2d 783 |
| Parties | STATE of Tennessee, Appellee, v. Steve BENNETT, Appellant. 798 S.W.2d 783 |
| Court | Tennessee Court of Criminal Appeals |
Charles W. Burson, Atty. Gen. & Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, David G. Ballard, Dist. Atty. Gen., Steven R. Hawkins, Asst. Dist. Atty. Gen., Maryville, for appellee.
Charles B. Fels, Ritchie, Fels & Dillard, P.C., Knoxville, for appellant.
The appellant, Steve Bennett, was convicted of murder in the second degree by a jury of his peers. The trial judge, finding the appellant to be a standard offender, imposed a Range I sentence of twelve (12) years in the Department of Correction. Since the appellant used a firearm in the commission of the offense, the trial judge imposed an additional sentence of five (5) years. These sentences are to be served consecutively. The effective sentence imposed by the trial judge is seventeen (17) years in the Department of Correction.
The appellant appealed as of right to this Court following the denial of his motion for a new trial. Tenn.R.App.P. 3(b).
The appellant presents several issues for our review. He contends that permitting private prosecutors to participate in the prosecution resulted in the deprivation of a constitutional right. He also contends that the trial judge committed error of prejudicial dimensions in denying (a) his motion to strike the aggravating circumstances alleged by the State, (b) his motion for a continuance, (c) his motion for a change of venue, (d) his objection to the testimony of a medical doctor, (e) his special request for jury instructions, (f) his motion to require the State to publicly declare the standards used in determining whether to seek the death penalty in this case, and (g) his motion to disallow the testimony two witnesses who were not excluded during the preliminary hearing. He further contends that the trial judge should have sentenced him as an especially mitigated offender, and the trial judge should not have enhanced his sentence for using a firearm in the commission of the offense.
The victim's family employed two attorneys to serve as private prosecutors. One of the attorneys was active in the Blount County Democratic Party. The other attorney was active in the Blount County Republican Party. Both had served as county chairman for their respective parties. The attorneys actively participated in all phases of the prosecution against the appellant.
The appellant vigorously opposed the right of the private prosecutors to participate in the trial on the merits. He filed a pretrial motion challenging their right to participate in the prosecution on constitutional grounds. The trial judge denied the motion. He subsequently appealed by permission to this Court pursuant to Rule 9, Tenn.R.App.P. The appellant's application was denied. Thereafter, the appellant sought permission to appeal the issue to the Tennessee Supreme Court pursuant to Rule 10, Tenn.R.App.P. The Supreme Court denied the appellant's application on the ground that the issue had become moot.
In this Court the appellant contends that the statute permitting the utilization of private prosecutors violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the Law of the Land Clause contained in Article I, Section 8 of the Tennessee Constitution. He further contends that the statute is unconstitutional in the manner in which it was applied in this case.
Prior to 1978, the common law of this State recognized the right of a victim, or the family of a deceased victim, to employ private counsel to assist the district attorney general, or his assistant, in the prosecution of the person who committed the offense against the victim. In 1978 the Tennessee General Assembly enacted a statute which recognizes the right of a victim to employ private counsel to assist in the prosecution of the accused. This statute 1 provides:
A victim of crime or the family members of a victim of crime may employ private legal counsel to act as co-counsel with the district attorney general or his deputies in trying cases, with the extent of participation of such privately employed counsel being at the discretion of the district attorney general. The district attorney general or his deputys shall make the final and concluding argument.
Contrary to the appellant's contention, the practice of permitting a privately retained prosecutor to assist a district attorney general, or his assistant, does not violate the Fourteenth Amendment to the United States Constitution or the Law of the Land provision contained in Article I, Section 8 of the Tennessee Constitution. 2 Consequently, Tenn.Code Ann. Sec. 8-7-401 is constitutional.
Our review of the record does not reveal that the application of this statute in the case sub judice resulted in a depravation of a constitutional right. The private prosecutors did not engage in prosecutorial misconduct. 3 Nor does the record reflect that the private prosecutors represented the family of the victim in a civil case arising out of the occurrence which gave rise to the criminal prosecution. 4 Also, this was not a contempt proceeding which arose out of a civil prosecution. 5
The district attorney general maintained control over the prosecution as required by our statute.
The appellant's complaint that a private prosecutor was permitted to argue during summation to the jury is likewise without merit. The statute does not prohibit a private prosecutor from making the opening argument to the jury. Only the rebuttal, or last argument, must be made by the district attorney general or his assistant.
This issue is without merit.
MOTIONS TO STRIKE AGGRAVATING CIRCUMSTANCES AND REQUIRE
DISTRICT ATTORNEY GENERAL TO DECLARE STANDARDS
USED IN DETERMINING WHETHER TO SEEK THE
The state gave notice to the appellant that it intended to seek the death penalty. The aggravating circumstance alleged in the notice contended that the appellant "knowingly created a great risk of death to two or more persons other than the victim." 6 The appellant moved to strike this aggravating circumstance on the ground it was not warranted by the facts or the law. The appellant also sought the entry of an order requiring the district attorney general to declare the standards or criteria he used in determining whether he should seek the death penalty in his case. The trial judge denied both motions.
These issues are moot. As previously indicated, the jury found the appellant guilty of murder in the second degree. The jury's verdict means that the appellant was acquitted of murder in the first degree. 7 Therefore, these issues will not be addressed since they are not a matter of "great public interest". Nor will these issues "evade review if not addressed." 8
This issue is without merit.
EXCLUSIONS OF TESTIMONY FOR VIOLATION OF RULE AT PRELIMINARY
The appellant contends that he invoked the "rule" at the preliminary hearing as to all witnesses--those who were to testify at the hearing and those who would later testify at the trial. The magistrate ordered the witnesses who were going to testify at the preliminary hearing to leave the courtroom. However, he refused to remove the remaining potential witnesses from the courtroom. The appellant moved the trial judge for the entry of an order disqualifying the two witnesses who were permitted to remain in the courtroom at the preliminary hearing. The trial judge denied the motion.
The appellant has failed to cite a statute, rule or common law decision of the Supreme Court or this Court which provides for the removal of citizens because they "might" be witnesses at some point in the proceedings.
The presence of these two witnesses in the courtroom during the preliminary hearing did not disqualify them from testifying in the criminal court. However, counsel was entitled to question the witnesses regarding their presence at the preliminary hearing. In short, this fact went to the credibility of the witnesses as opposed to the admissibility of the witnesses' testimony.
This issue is without merit.
The appellant and David Adams, a co-defendant, were together on the night in question. The Blount County Grand Jury indicted both Bennett and Adams for offenses flowing from the death of the victim, Lance Russell. The trial judge ultimately granted a severance of defendants. The reason for the severance is not contained in the record.
Defense counsel, contending that Adams was a material witness for Bennett, issued a subpoena for Adams. Adams' attorney, David T. Black, executed an affidavit, which was filed in the cause. Black stated in the affidavit that if Adams was called to testify by either party, he would invoke his constitutional privilege against self-incrimination.
The appellant subsequently filed a motion for a continuance, supported by two affidavits, asking the trial judge to grant him a continuance until after Adams had been tried. The motion alleged that Adams was unavailable as a witness, and, as a consequence, he would be denied favorable testimony. The affidavit of defense counsel stated that he had a reasonable basis for believing Adams would testify in support of the appellant's defense after the completion of his trial. The trial judge denied the motion.
When an accused seeks a continuance on the ground a witness or evidence is unavailable, the accused is required to file a written motion which sets forth the grounds for the continuance with particularity. 9 The motion must be supported by an affidavit. The affidavit must allege (a) the substance of the facts that the accused expects to prove through the unavailable witness or evidence, 10 (b) sufficient facts to ...
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...I, § 8 of the Tennessee Constitution. F. Bennett The controlling Tennessee case relating to special prosecutors is State v. Bennett, 798 S.W.2d 783 (Tenn.Crim.App.1990). Bennett held that T.C.A. § 8-7-401, the statute authorizing the employment of special prosecutors, does not violate the D......
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...this court is precluded from addressing an issue on appeal when the record fails to include relevant documents. See State v. Bennett, 798 S.W.2d 783 (Tenn.Crim.App.1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991); Tenn.R.App.P. 24. By failing to include this motion i......
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...fails to include relevant documents." See id.; State v. Robinson, 73 S.W.3d 136, 154 (Tenn.Crim.App.2001) (citing State v. Bennett, 798 S.W.2d 783 (Tenn.Crim.App.1990)). The appellate court is limited to review of only the facts set forth in the record. See Tenn. R.App. P. 13(c). If the rec......
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... ... common law practice of allowing a victim or the victim's ... family to retain an attorney to assist in the prosecution of ... a criminal offense, see T.C.A. § 8-7-401, and ... that the statute has been held to be facially constitutional ... See State v. Bennett ... ...
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...note 3, at 755, 765-67; Bessler, supra note 3, at 512. (548.) Kentucky v. Hubbard, 777 S.W.2d 882, 883 (Ky. 1989); Tennessee v. Bennett, 798 S.W.2d 783, 786 (Tenn. Crim. App. 1990). See also Ireland, supra note 3, at 56-57 (referencing that "the Kentucky Supreme Court and the Tennessee Crim......