State v. Mackey

• Decision Date: 05 March 1982
• Citation: 638 S.W.2d 830
• Parties: STATE of Tennessee, Appellee, v. Albert MACKEY, Jr., Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 830

638 S.W.2d 830

STATE of Tennessee, Appellee, v. Albert MACKEY, Jr., Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

March 5, 1982.

Permission to Appeal Denied by the

Supreme Court June 7, 1982.

William M. Leech, Jr., Atty. Gen., J. Andrew Hoyal, II, Asst. Atty. Gen., Nashville, James R. Dedrick, Asst. Dist. Atty. Gen., Knoxville, for appellee.

Wesley L. Pendergrass, Knoxville, for appellant.

OPINION

WALKER, Presiding Judge.

Under the first four counts of an eight-count presentment, the jury in Knox County Criminal Court found the appellant, Albert Mackey, Jr., guilty of (1) first degree burglary and fixed his punishment at not less than eight nor more than ten years in the penitentiary; (2) armed robbery with 20 years' imprisonment; (3) assault and battery with 11 months and 29 days in the Knox County Penal Farm; and (4) aggravated kidnapping with 30 years in the penitentiary. On the second phase of the bifurcated trial, one of the habitual criminal counts was submitted to the jury. It found him guilty of being an habitual criminal and his armed robbery conviction was enhanced to life imprisonment. The trial judge ordered that the 30-year sentence for aggravated kidnapping be served consecutive to the life sentence. He further ordered that the burglary and assault and battery sentences be served concurrently with that for aggravated kidnapping.

We find no reversible error and affirm the convictions.

At approximately 3:00 a.m., September 27, 1980, Robert William Bullard was awakened when a man crashed through his bedroom window and on to him in bed. The assailant, later identified by police officers as the appellant, threw Mr. Bullard to the floor and tied his hands and feet with a telephone cord. He then took Mr. Bullard's loaded .38 caliber pistol from his nightstand and demanded Mr. Bullard's car keys.

Mackey ransacked the house, finding the car keys, a .25 caliber automatic pistol, several hundred dollars, some valium pills and two bottles of vodka. He opened the vodka and drank about one and one-half ounce from each bottle. During his ordeal, Mr. Bullard was in such a position that he could not get a clear view of Mackey and could not positively identify him.

About 4:00 a. m., several police officers arrived in response to a burglary report. For at least an hour they negotiated with Mackey who repeatedly threatened to kill them and his hostage. An officer fired once unsuccessfully at Mackey and Mackey fired twice into the floor. Under cover of police guns, Mr. Bullard was finally able to untie himself and crawl out another bedroom window.

When Mackey learned that Mr. Bullard had escaped and that another team of officers was arriving, he surrendered. Some of Mr. Bullard's personal property was found in a pillowcase in the hallway of the apartment. At the arrest the appellant gave his name as Calvin Wilson. Soon after being taken to jail, he became ill and was taken, semi-conscious, to a hospital where his stomach was pumped and particles of valium pills were found.

Mackey contends that the presentment under which he was tried should have been dismissed by the trial court because he was never afforded a preliminary hearing. He was arrested without a warrant on the morning of September 27, 1980. Two warrants for his arrest (one for burglary and the other for felonious assault) were later issued that same day.

Appellant was arraigned on September 29, 1980, at which time he informed the court of his intention to retain a particular attorney. This attorney was never retained in the present case.

The preliminary hearing was scheduled for October 6, 1980, and on that day Mackey appeared and informed the court that he had been unable to retain counsel. The state was ready with its witnesses. The Legal Aid Clinic was appointed to represent appellant at that time, and the matter was continued over the state's objection until October 14. On that date, appellant's trial counsel was retained, the state was ready again with its witnesses, and appellant's counsel requested another continuance until November 5, 1980, so that he could investigate the case. The state neither objected to nor joined in this latter motion for a continuance. The state requested appellant to waive his preliminary hearing in exchange for a copy of the police report and the names of witnesses. The district attorney general's office contacted appellant's counsel several times in the next two weeks concerning this matter. Thirty days passed from appellant's arrest, and on October 31, 1980, the grand jury returned a true bill.

Rule 5(e), Tenn.R.Crim.P., provides in part:

"If the defendant is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at his own request or that of the prosecutor, he may dismiss the indictment upon motion to the court. Provided, however, that no such Motion to Dismiss shall be granted after the expiration of thirty days from the date of defendant's arrest." (emphasis added).

Appellant concedes that more than 30 days had passed from the time of his arrest until the grand jury returned its presentment against him. However, he relies on the case of Moore v. State, 578 S.W.2d 78 (Tenn.1979), in arguing that the 30-day limitation is not applicable to his case. In Moore the defendant was ready to proceed at the time of his preliminary hearing, but the state sought to introduce inadmissible hearsay testimony. The preliminary hearing had to be continued for an indefinite time essentially because of the state's fault. Our Supreme Court held that the 30-day limitation was not applicable in that case. In the instant case, the state was not at fault for any delay in appellant's preliminary hearing. In Moore the court stated:

"We hold that the 30-day limitation by the last paragraph of sec. 40-1131, T.C.A. (now Rule 5(e), Tenn.R.Crim.P.) is applicable only when all parties-- including the defendant, who must act promptly--have acted in good faith and in compliance with the statute. The failure of the court or the prosecution to exercise good faith and to abide the law operates to toll the statute and preclude its invocation." (emphasis added) 578 S.W.2d at 82.

Appellant contends the state exercised bad faith. However, it cannot be said that the state exercised bad faith when it did not cause or ask for the preliminary hearing to be continued. The mere failure of the state to object to a continuance, without also joining in the motion, does not amount to bad faith. This issue is overruled.

Next, appellant contends that the trial court erred in admitting the medical reports concerning his mental condition. The appellant's counsel, anticipating a defense of mental incapacity due to drug and alcohol intoxication, filed an appropriate notice with the trial court. An examination of appellant was held pursuant to court order. A clinical social worker and a clinical psychologist examined appellant. They filed two reports, the first by the clinical social worker, who was coordinator of the forensic services program at the Helen Ross McNabb Mental Health Center, to the effect that the appellant was competent to stand trial. The second was by a clinical psychologist at the center and was to the effect that the appellant was sane at the time of the crime. The appellant contends that these reports were inadmissible because they were not prepared by medically qualified persons. In his petition to the trial court, appellant requested a psychiatric examination at the Helen Ross McNabb Center, pursuant to T.C.A. 33-708. That statute allows examination of a defendant by a community health center upon proper petition. In Graham v. State, 547 S.W.2d 531 (Tenn.1977), the court, in referring to T.C.A. 33-708, noted:

"(T)he statute is discretionary, since it in no sense requires such an examination, nor does it specify that the examination be conducted by a psychiatrist as opposed to a psychologist ..." (emphasis added) 547 S.W.2d at 535.

Likewise, the statute does not specify that the examination to determine a defendant's competency to stand trial cannot be done by a clinical social worker. This issue is overruled.

In his third issue, Mackey contends that the trial court erred in overruling his motion for replacement of the prosecutor filed March 9, 1981. Appellant's trial was held on March 10, 11 and 12, 1981. Appellant argues that a local newspaper article appearing March 4, 1981, in which the prosecuting attorney in his case was identified as heading a team of prosecutors who only tried cases involving defendants with at least two prior felony convictions, caused appellant to be subject to prejudicial pretrial publicity. There is no showing in the record of any prejudice to appellant caused by this article. Appellant's counsel chose not to inquire of prospective jurors on voir dire examination to determine whether they had read the article. Further, the appropriate remedy for prejudicial pretrial publicity is a motion for a change of venue pursuant to Tenn.R.Crim.P. 21. This issue is overruled.

In his next issue, Mackey argues that the trial court committed reversible error by overruling his motion for a mistrial because of another article appearing in a local newspaper. On March 11, the jury began its deliberations in the first phase of appellant's trial. At 6:00 p. m. court was adjourned and the jury was separated, to go home, a sequestered jury having been waived by both sides at the beginning of the trial. Before sending the members of the jury home, the trial judge told them that they were not to read anything at all about the case. The newspaper article appeared in that afternoon's paper. The article concerned the proceedings of appellant's trial and facts surrounding the habitual criminal proceeding pending against him, including information of his prior convictions.

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