Rucker v. Tollett

475 S.W.2d 207, 4 Tenn. Crim. App. 672, 1971 Tenn. Crim. App. LEXIS 439

Opinions

OPINION

WALKER, Presiding Judge.

Without an evidentiary hearing, the trial judge dismissed this petition for postcon-viction relief. The petitioner, Daniel Rucker, appeals.

The sole question presented by the petition is that the official court reporter was permitted to testify at the 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 evi-dentiary 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.

RUSSELL, J., concur.