State v. Huskey

• Decision Date: 28 June 2002
• Docket Number: E1999-01438-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. THOMAS DEE HUSKEY AND STATE OF TENNESSEE v. THOMAS DEE HUSKEY(FN1) IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v THOMAS DEE HUSKEY AND STATE OF TENNESSEE v THOMAS DEE HUSKEY

No. E1999-00438-CCA-R3-CD¹

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

April 11, 2001 Session

June 28, 2002

Appeal from the Criminal Court for Knox CountyNo. 49828Richard Baumgartner, Judge

Appeal from the Criminal Court for Knox CountyNos. 49829, 49830, 50090Richard Baumgartner, Judge

The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and aggravated kidnapping, for which he received an aggregate sentence of sixty-six years.The convictions relate to four victims and result from two trials that were consolidated for this appeal.The defendant raises numerous issues.Although we conclude that several errors occurred, only one requires reversal of any convictions.Because of improper consolidation, we reverse the judgments for the three aggravated rape convictions and one especially aggravated kidnapping conviction relating to the victim, D.C., but we affirm the remaining judgments of conviction.

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee Huskey.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W. Daab, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part and Reversed in Part

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES AND DAVID G. HAYES, JJ., joined.

OPINION

The defendant was convicted in the Knox County Criminal Court in two cases, which will be referred to as the first rape case and the consolidated rape case.On October 20, 1995, the defendant was convicted by a jury in the first rape case for two counts of aggravated rape, a Class A felony, and one count of aggravated robbery, a Class B felony.The trial court sentenced the defendant as a Range I, standard offender to twenty-two years for each aggravated rape and eleven years for the aggravated robbery, ordering the sentences to run concurrently for an effective sentence of twenty-two years.

On May 24, 1996, in a consolidated trial, the defendant was convicted by a jury on three counts of aggravated rape and one count of especially aggravated kidnapping, a Class A felony, of one victim; two counts of rape, a Class B felony, and one count of aggravated kidnapping, a Class B felony, of a second victim; and two counts of rape and one count of robbery, a Class C felony, of a third victim.The jury deadlocked on charges relating to a fourth victim.The trial court sentenced the defendant as a Range I, standard offender to twenty-two years for each aggravated rape and twenty years for the especially aggravated kidnapping of the first victim, ordering the sentences to run concurrently for an effective twenty-two-year sentence.It sentenced the defendant to eleven years for each rape and ten years for the aggravated kidnapping of the second victim, ordering the sentences to run concurrently for an effective eleven-year sentence.For the third victim, the trial court sentenced the defendant to eleven years for each rape and three years for the robbery, ordering the sentences to run concurrently for an effective eleven-year sentence.The trial court also ordered the sentences relating to each victim in the consolidated rape trial to run consecutively to each other as well as to the sentence from the first rape trial, establishing an effective sentence of sixty-six years.

On appeal, the defendant raises the following issues, many of which relate to both the first rape case and the consolidated rape case and many of which have several subissues.²We will first address the issue of whether the trial court properly consolidated all of the cases in the consolidated rape case because our holding affects our analysis of many of the other issues before us.We will next address the issues that relate to both cases, then the issues that relate only to the first rape case, and finally the issues that relate only to the consolidated rape case.

I.Whether the trial court erred in consolidating the cases in the consolidated rape trial.

ISSUES RELATING TO BOTH CASES

I.Whether the trial court erred in denying the defendant's motion to dismiss for the denial of a speedy trial.

I.Whether the trial court erred in denying his motion to suppress evidence obtained as the product of his unlawful arrest and the illegal search of his home.

I.Whether the trial court erred in denying his motion to suppress his statements.

I.Whether the trial court erred in allowing the state to determine the order of his trials.

I.Whether reversible error occurred because the state failed to provide him with timely discovery and whether the trial court erred in refusing to review discovery materials.

I.Whether the state withheld exculpatory evidence.

I.Whether the trial court erred by refusing to hear certain of his pretrial motions.

I.Whether the trial court erred in limiting his proof regarding his insanity defense.

I.Whether the trial court erred in denying him a change of venue.

I.Whether the trial court improperly denied him access to various records relating to the victims.

I.Whether the trial court erred by allowing the state to use improper leading questions on direct and redirect examination and by allowing improper redirect examination.

I.Whether the trial court erred in admitting evidence not disclosed to him in discovery and not listed in the state's notice of intention to use evidence.

I.Whether the trial court erred by prohibiting the testimony of Henrietta Ogle regarding the character traits of persons addicted to cocaine.

I.Whether the trial court erred in denying his motions for a mistrial.

I.Whether the state made improper comments in its opening statements and closing arguments.

I.Whether the trial court properly sentenced him.

I.Whether the trial court erred in delaying and/or failing to rule on his post-trial motions.

I.Whether the trial court erred by failing to rule on his motions in arrest of judgment.

I.Whether the trial judge was disqualified from presiding over the cases.

I.Whether the misconduct of the prosecutor requires dismissal of the charges or that the prosecutor be disqualified.

ISSUES RELATING ONLY TO THE FIRST RAPE TRIAL

XXII.Whether the trial court erred in staying all other proceedings against him until completion of the first rape case.

XXIII.Whether the trial court erred in limiting his questioning on voir dire and in refusing to dismiss for cause potential jurors who knew about his cases.

XXIII.Whether the trial court erred by refusing to have a hearing during trial on his motion to suppress a photographic line-up.

XXIII.Whether the trial court erred in admitting into evidence the victim's statements that were contained in a hospital record.

XXIII.Whether the trial court erred in allowing the state's improper cross-examination of Officer Chuck Whitson, whom the defendant had called as an adverse witness.

XXIII.Whether the trial court erred by failing to rule as the thirteenth juror.

ISSUES RELATING ONLY TO THE CONSOLIDATED RAPE TRIAL

XXVIII.Whether the trial court erred in denying his motion to sever his factual defenses from his insanity defense.

XXVIII.Whether the trial court erred in the number of peremptory challenges it allowed the parties.

XXVIII.Whether the trial court erred by allowing jurors to have telephone contact while sequestered.

XXVIII.Whether the trial court erred by allowing the state to elicit new testimony in its redirect examination of Detective Tom Pressley.

XXVIII.Whether the trial court erred in failing to grant his motion for judgments of acquittal due to the variance between the dates in the bill of particulars and those proven by the state and to instruct the jury on the dates alleged in the bill of particulars.

XXVIII.Whether the trial court erred in denying his motions for judgment of acquittal.

We hold that some error exists with regard to Issues I, III, VI, XVI, XVII, XXV, and XXVI.With respect to these errors, only the consolidation error requires reversal.

FACTS

A.First Rape Trial

The victim testified that on July 17, 1992, she spent the night at the East Fifth Avenue apartment of Tina Kelly, a friend.The morning of July 18, she walked to the Krystal on Magnolia Avenue to buy breakfast.She said that as she was walking back to her friend's apartment, the defendant, who was driving in the opposite direction, stopped his car and asked her for directions to Esau's Auction Company.She gave him directions, but the defendant said that he could not hear her.She went to the driver's side of the car, and as she raised her right arm to point the direction, the defendant pointed a gun under her arm.The defendant then pulled her through the window of his car and drove away while her legs were hanging outside the window.The defendant told her that he would kill her if she did not get her feet into the car.Although she tried to lift her head, the defendant kept pushing her down into the seat.

The victim testified that when the defendant stopped the car, she recognized that they were at a barn in Chilhowee Park.The defendant told her to get out of the car, but when she opened the passenger's door, the defendant became very angry.The defendant told her that if she did not do everything he told her to do, he would kill her.The defendant, who called her derogatory names throughout, told her that she was going to perform oral sex on him and that he was going to have sexual intercourse with her.The defendant ran to the passenger's side of the car and told her to get on her knees.When she did not comply, the defendant, who had her hair wrapped in...