State v. McCary

• Decision Date: 10 January 2003
• Docket Number: No. E2001-02726-CCA-R3-CD.,E2001-02726-CCA-R3-CD.
• Parties: STATE of Tennessee v. Donald C. McCARY.
• Court: Tennessee Court of Criminal Appeals

119 S.W.3d 226

STATE of Tennessee v. Donald C. McCARY.

No. E2001-02726-CCA-R3-CD.

Court of Criminal Appeals of Tennessee, at Knoxville.

August 20, 2002 Session.

January 10, 2003.

Application for Permission to Appeal Denied by Supreme Court July 7, 2003.

Howell G. Clements, Chattanooga, Tennessee (on appeal), and Donald C. McCary, pro se (at trial), for the appellant, Donald C. McCary.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Stan Lanzo, Special Prosecutor; and C. Leland Davis and Caldwell Huckaby, Assistant District Attorneys General, for the appellee, the State of Tennessee.

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

OPINION

The defendant, Donald C. McCary, was convicted in two separate trials of two counts of aggravated sexual battery, one count of sexual battery, and four counts of statutory rape. There were two minor victims. The aggravated sexual battery convictions related to one victim and the remaining offenses were against the other. By consent of the state and the defendant, this court consolidated the two appeals during oral argument. The defendant claims (1) that the state failed to make a proper election of offenses at the close of the proof; (2) that there was a fatal variance between the indictments and the proof offered at both trials; (3) that the trial court erred by the admission of certain of the evidence; (4) that the trial court erred by denying his motion to suppress evidence seized during the search of his office; (5) that the trial court erred by refusing to suppress certain statements made during the search and after his arrest; (6) that the prosecutor's comments during closing argument were improper; (7) that the trial court erred by failing to declare the defendant incompetent to stand trial; (8) that the trial court erred by permitting amendment of the indictments; (9) that the cumulative effect of the errors denied him the right to a fair trial; and (10) that the trial judge should have recused himself from the hearing on the motions for new trial. The convictions on each count of aggravated sexual battery are affirmed. The remaining convictions are reversed and remanded for a new trial.

In 1992, the defendant was convicted of thirteen sex offenses against four male victims ranging in age from twelve to fifteen years old. The trial court imposed an effective sentence of seventy-two years' incarceration. See State v. McCary, 922 S.W.2d 511, 512-13 (Tenn.1996). Our supreme court reversed each of the convictions and remanded for a new trial, finding that the trial court improperly admitted evidence of prior uncharged sexual offenses in violation of Tennessee Rule of Evidence 404(b). Id. at 512-15. Our high court declared that the defendant's diary should have been excluded from evidence and warned that certain pornographic magazines and videotapes most likely should have been excluded as irrelevant. Id. Upon remand, the trial court granted the defendant's motion for a severance of the trials. The trial court also granted the defendant's request to act as his own attorney. This appeal involves two separate trials involving two of the victims.

The first of the two trials took place in August 1997. The defendant was charged with two counts of aggravated sexual battery committed against twelve-year-old J.B.¹ In 1991, when Michael Ron Benefield was sixteen years old, he was a member of the youth choir at Central Baptist Church in Chattanooga, where the defendant served as youth choir director. Benefield, who was taking drum lessons at the church and often recorded his performances, noticed a micro-cassette on a filing cabinet in the choir room. Believing that the cassette was one he had left there at an earlier lesson, Benefield took the tape to his residence. Later, when he listened to the tape, Benefield recognized the voices of the defendant and J.B., a member of the youth group. From the tape, Benefield learned that the defendant had allowed J.B., who was 12 or 13 years old at the time, to drive his car. When Benefield's mother, Joan Benefield listened to the tape, she passed along the information to her husband. Ms. Benefield, who described herself as "sickened" by the content of the tape, testified that she and her husband contacted Chief of Police Eugene McCutcheon, who was also a member of the church. Chief McCutcheon listened to the tape and then assigned two detectives to investigate.

Detective Mark Rawlston, a homicide detective with the Chattanooga Police Department, was able to secure an address for J.B., spoke briefly with J.B.'s mother, and then questioned J.B. at his school. J.B. informed the detective that the defendant had shown him pornographic videos and magazines and had touched his penis. Later, J.B. provided a recorded statement at the office of the district attorney. Based upon information obtained during that interview, Detective Rawlston obtained warrants to search the defendant's residence, vehicle, and office at Central Baptist Church.

When officers arrived to execute the warrant at the church, the defendant left the church building, entered his car, and removed a red briefcase from the trunk. Officers confronted the defendant, who fled into the church. The officers followed and found the defendant hiding beneath some choir robes. Detective Rawlston again informed the defendant that he had a warrant to search his office and took possession of the red briefcase, which had been identified in the warrants as subject to seizure.

The defendant led the officers to his office, where Detective Rawlston informed him of his Miranda rights and advised him that he was not under arrest. When Detective Rawlston asked the defendant how to open the briefcase, which had a combination lock, the defendant responded, "It's Ronnie's². None of it's mine. It's all Ronnie's." Detective Rawlston then opened the briefcase using a combination that J.B. provided. Inside, the detective found several adult magazines and a number of "hardcore" pornographic movies. After closing the briefcase, Detective Rawlston found a full-sized tape recorder on the defendant's desk. The tape included the voice of the defendant discussing J.B.'s whereabouts with a young girl.

After being notified of the search warrant, Dr. Ron Phillips, pastor of the church, accompanied Detective Rawlston to the defendant's office, where the search was being conducted. Dr. Phillips immediately asked the defendant, "What's this all about?" The defendant responded, "It's all Ronnie's. It's all Ronnie's. None of it's mine." When Detective Rawlston asked the defendant where Ronnie was, the defendant answered that Ronnie had been in prison since 1990. Detective Rawlston, referring to a magazine he had taken out of the briefcase, then asked, "If Ronnie has been in prison since 1990, how did the December 1991 issue of Club magazine get into his briefcase?" The defendant then looked at Dr. Phillips and said, "Brother Ron ... I'm sorry. I am so sorry." As the search continued, the defendant complained to Detective Rawlston that he did not understand what was happening. The detective responded, "Don, it's about raping little kids." The defendant then said, "I haven't done anything to them that they didn't want me to do, and I haven't shown them anything they didn't want to see."

Detective Rawlston also seized three tee-shirts from the credenza in the defendant's office, which, according to J.B., the defendant used to clean up semen following ejaculation. TBI testing established that one shirt contained no semen, a second contained several areas of semen, and the third shirt was approximately 90 percent saturated with the substance. Detective Rawlston also discovered over one hundred pictures of J.B. in the defendant's office, some of which had typed messages on the back. The photographs were taken during church trips to Panama City and Fall Creek Falls and at various locations in Chattanooga.

As part of his investigation, Detective Rawlston discovered that the defendant had made several gifts to J.B., including a warm-up suit, a baseball cap, a collection of cassette tapes, a Timex Ironman watch, two tee-shirts, a phone dialing machine, a gold and diamond ring, lighter fluid, a pair of boxer shorts, a flannel shirt, a video tape, a pocket watch, a razor, shaving cream, aftershave, deodorant, two cigarette lighters, and a key to the defendant's car. The defendant had also loaned J.B. a television/VCR combination.

At trial, Bruce Gentry, who worked for Zales Jewelry in 1991, testified that he had sold a diamond ring to the defendant for approximately $150. Gentry recalled that the ring had to be sized to fit the finger of the young man who had accompanied the defendant to the store.

Gaylon B. Wiley, associate pastor at Central Baptist Church, testified that on the evening that the defendant's office was searched, he encountered the defendant and the defendant's twelve-year-old son, Marty, as they were leaving the choir room. Wiley recalled a brief conversation before the defendant began repeating, "I'm ruined. I don't know how they found out. [J.B.] wouldn't have turned me in, [J.B.] loved me, and all [J.B.] wanted to do was to see some pussy, and we looked at the magazines and masturbated."

J.B., eighteen at the time of trial, testified that he was twelve years old when he first became acquainted with the defendant during a church-sponsored trip to Panama City, Florida. He recalled that the defendant asked him to sit with him at dinner and, later that same evening, took him to a Waffle House. The defendant then asked J.B. to spend the night in his cabin. J.B. testified that during the night, the defendant "hugged on" him and rubbed his back and chest. J.B. stated that this made him feel "pretty strange" but admitted that he continued to stay in the defendant's cabin throughout...