State v. Cherry

639 S.W.2d 683, 1982 Tenn. Crim. App. LEXIS 459
CourtCourt of Criminal Appeals of Tennessee
DecidedJuly 8, 1982
StatusPublished
Cited by3 cases

This text of 639 S.W.2d 683 (State v. Cherry) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cherry, 639 S.W.2d 683, 1982 Tenn. Crim. App. LEXIS 459 (Tenn. Ct. App. 1982).

Opinion

OPINION

DWYER, Judge.

This is an appeal from a conviction of rape, T.C.A. § 39-3705, with punishment at not less than nor more than five years, and a conviction of kidnapping, T.C.A. § 39-2601, with punishment at not less than nor more than two years. The trial court ordered that the sentences be served consecutively.

There are three issues which challenge the sufficiency of the evidence as it related to the question of legal insanity at the time of the crime. The other issues relate to the questioning of prospective jurors during voir dire, the comments of the trial judge during voir dire, the venue, the pre-trial motion to suppress the identification, the conditions of deliberation imposed on the jury by the trial court, the denial of a pre-trial motion to exclude testimony of another victim, and the consecutive sentences.

On August 22,1980, the victim, a resident of Henry County, had completed her 3:30 p.m. to midnight shift at the plant where she was employed. En route to her home she stopped to get a soft drink and then continued on her journey. When she stopped at an intersection a four-wheel drive vehicle came up directly behind her and put on its bright lights. As she continued on the vehicle pulled alongside her moving car several times and then dropped back; it became obvious to her that the two occupants of the vehicle were not trying to pass. When she attempted to turn into her driveway the pursuers blocked her way and eventually forced her car into a ditch. When she got out and fled towards her home two male whites chased her, with one saying, “Don’t let her get away, Steve,” She was grabbed by the throat, struck in her stomach, and forcibly placed in the four-wheel drive vehicle.

[685]*685While they were taking her to a deserted area she heard one say, “Oh, God”, whereupon they turned off suddenly onto another road. She believed she saw blue lights at the time.

In a short while the vehicle stopped and the passenger got out to get his car. The journey resumed, with the second car following, and ended near a deserted house. The driver commanded her to disrobe and the two men took turns raping her in the four-wheel drive vehicle with one waiting outside while the other committed the offense. After the two men had a discussion, part of which concerned what time one was expected home by his wife, the passenger-rapist left. As the driver-rapist got into the vehicle and lit a cigarette, the victim “got a real good look at him.” The driver then told her he was sorry for what he had done, that if he had known she had a baby he would not have raped her. He told her that there was no reason for anyone to know what had happened, that she should say she was “run off the road by a big black nigger.” The driver then gave her directions back to her house, told her to stand still as he left, and drove away without turning on his lights. The victim testified that throughout her ordeal the driver did not talk or act oddly.

At the trial the victim identified the appellant as the driver-rapist. The evidence also reflected that she had identified appellant from police mug books some weeks after the rape, at a police lineup several days after viewing the photographs, and at the preliminary hearing.

An examination of the victim was performed at the Henry County Memorial Hospital soon after the rape, and a rape kit was used to collect evidence. Tests conducted at the Tennessee Bureau of Investigation Crime Lab revealed spermatozoa in the vaginal secretions of the victim.

The appellant did not testify but offered his mother, father, sister, and three other lay witnesses who all testified that due to their observations of appellant during the month of August, 1980, they were of the opinion he was not of sound mind. The three clinical psychologists and one psychiatrist also called were of the opinion that appellant was suffering from a mental illness. They believed that he could neither appreciate the wrongfulness of his act nor conform his conduct to the requisites of law.

The present test for legal insanity in Tennessee was inaugurated in Graham v. State, 547 S.W.2d 581, 543 (Tenn.1977):

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

A major purpose behind adoption of the new rule was, stated several ways, to allow the “behavioral sciences ‘full freedom to put their professional findings and conclusions before the court and jury’ 1; to bridge “the gulf between psychiatry and the law” 2; to invite “broader medical-legal investigation” 3; and to demand “an unrestricted inquiry into the whole personality of a defendant.” 4

Regardless of how the American Law Institute Model Penal Code rule, as adopted by Tennessee, opened the courtroom to the present theories of abnormal human behavior, the resultant testimony of medical experts was to be fit within the framework of evidence being presented to a trier of fact, the jury. As our Supreme Court reiterated in State v. Stacy, 601 S.W.2d 696, 697 (Tenn.1980):

In the opinion of the majority, that issue [the inability of petitioner to control his conduct], like the issue of cognitive capac[686]*686ity, was a question of fact to be determined by the jury.

Of particular relevance to the jury’s determination is the wisdom contained in Mullendore v. State, 183 Tenn. 53, 60, 191 S.W.2d 149, 152 (1945), that the words and acts of the appellant before, at, and immediately after the act are the best evidence of whether appellant was of rational mind at the time of the act.

In Edwards v. State, 540 S.W.2d 641, 646 (Tenn.1976), when discussing the state’s burden to overcome the evidence of insanity, the Tennessee Supreme Court noted:

This burden can be met by the state.. .through the showing of acts or statements of the petitioner, at or very near the time of the commission of the crime, which are consistent with sanity and inconsistent with insanity. (Emphasis added.)

In weighing such evidence the jury is not required to accept the opinion of experts in preference to other testimony. State v. Patton, 593 S.W.2d 913, 916 (Tenn.1980). If such were the case it would replace our system of trial by jury with one of trial by psychiatrists’ opinions.

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Related

State of Tennessee v. David A. Langley
Court of Criminal Appeals of Tennessee, 2005
State v. Carter
831 S.W.2d 300 (Court of Criminal Appeals of Tennessee, 1991)
State v. Estes
655 S.W.2d 179 (Court of Criminal Appeals of Tennessee, 1983)

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Bluebook (online)
639 S.W.2d 683, 1982 Tenn. Crim. App. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cherry-tenncrimapp-1982.