State v. Warner

649 S.W.2d 580, 1983 Tenn. LEXIS 641
CourtTennessee Supreme Court
DecidedFebruary 14, 1983
StatusPublished
Cited by22 cases

This text of 649 S.W.2d 580 (State v. Warner) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Warner, 649 S.W.2d 580, 1983 Tenn. LEXIS 641 (Tenn. 1983).

Opinions

OPINION

FONES, Chief Justice.

We granted the State’s Rule 11 application to consider whether the Court of Criminal Appeals erred in setting aside the convictions of defendant for escape, armed robbery, aggravated kidnapping, assault with intent to commit murder in the first degree, and habitual criminal and ordering a new trial, because the trial judge refused to recuse himself. The motion to recuse filed by both defendant and the State, was based upon (1) the fact that the trial judge was the district attorney general when two of the underlying convictions charged in the habitual criminal indictment were obtained on guilty pleas, and (2) the fact that the trial judge had met with the sheriff of Anderson County and the chief of police of the City of Oak Ridge to discuss security at the forthcoming trial of defendant and did not invite defendant’s counsel or the district attorney general to attend.

I.

After confinement in Brushy Mountain Prison, defendant was transferred to the Anderson County Jail to serve out the remainder of a sentence imposed for a felony conviction. On September 14, 1979, he was granted permission to leave the jail to visit his family, failed to return at the scheduled hour of 9:00 P.M., and remained a fugitive until November 30, 1979.

[581]*581On that date, an Oak Ridge police officer saw him run a stop sign. Defendant saw the officer following him, stopped and parked his car, and started walking away. The officer stopped, pursued him, and called for his driver’s license, whereupon defendant turned upon the officer with drawn pistol, disarmed the officer, commandeered the police car, and drove the officer to a remote area. There defendant forced the officer to lie on the ground face down and handcuffed his hands behind his back. After saying, “Shipley, I have got to do this,” defendant shot the officer in the back of the head. That bullet caused only a scalp wound, and somehow the officer got his hands loose and placed them over his head. Defendant fired a second shot that passed under the scalp, took off part of the officer’s left ear, exited near the left eye, and mangled his left thumb. After asking, “Are you dead yet, Shipley?”, defendant fired a third shot into the right side of the officer’s head that shattered both jaw bones and passed through the base of the tongue. Defendant departed the scene in the police car and was arrested later that night. Miraculously, the officer was able to get to a nearby house, was taken to the hospital, and survived.

None of the material facts about the commission of the crimes charged were seriously disputed and the proof of guilt was overwhelming. In fact, defendant testified and admitted that he shot the officer in the head three times under the circumstances substantially as related above.

II.

The primary ground relied upon in the motion for recusal was that Judge Scott had been District Attorney General in 1977 when defendant was indicted, pled guilty, was convicted, and sentenced for grand larceny and armed robbery. Both of those offenses were included as underlying convictions in the habitual criminal indictment. In addition, at the hearing on the motion to recuse, defendant testified that at or about the time he pled guilty and was sentenced for those offenses, Attorney General Scott, in the presence of defensé counsel, told defendant that, “[t]he next time that I come up in front of him or anything like that, that I was looking at the habitual act, you know.”

Judge Scott stated for the record that although he did not recall that conversation with defendant and his counsel, that it was appropriate, routine, and the duty of a district attorney general, in similar circumstances, to warn a defendant that the commission of another felony could result in a habitual criminal charge. The Court of Criminal Appeals commented in part, “We do not regard the warning as an expression of hostility or other attitude that of itself might disqualify.... But even such a warning considered in conjunction with other events may become prejudicial to the accused.”

The Court of Criminal Appeals also considered the question of whether these facts involve the constitutional disqualification, that no judge shall preside, “on the trial of any cause ... in which he may have been of counsel.... ” We agree with the intermediate court that the constitutional disqualification is limited by its very language to the cause on trial and does not include prior concluded trials or guilty plea convictions used to support a habitual criminal charge. We also agree that said incident provided no grounds for disqualification of the trial judge in this case.

III.

The second ground for disqualification was that the trial judge held a conference with the sheriff of Anderson County and the chief of police of Oak Ridge without inviting defense counsel or the district attorney general.

At the hearing on the motion to recuse, the trial judge read into the record the letter he had written to the sheriff and chief of police calling for the conference alleged to require his disqualification. In substance, the letter expressed the trial judge’s concern about security at the defendant’s forthcoming trial because the victim of the crime was a police officer, the [582]*582notoriety the case had received, and the fact that defendant had been brought into his courtroom for previous hearings in shackles, which he could not allow to occur at the trial because of its possible prejudicial effect. Adding to the letter, Judge Scott stated that he considered it to be the primary responsibility of the sheriff, the chief of police, and the trial judge to plan the security and that thereafter his responsibility to fully advise defense counsel and the district attorney about the security arrangements. Again, the Court of Criminal Appeals exonerated the trial judge from error on that ground, but again, with a reservation.

“The conference no doubt should have included the district attorney and counsel for appellant which would have avoided the controversy that ensued. But since it was about security for the trial only, we see no impropriety or appearance thereof in the conference itself. We are gravely concerned, however, with the affect of the incident.”

IV.

After having addressed both grounds relied upon by the parties to support the motion for recusal, finding no constitutional violations, nor any basis for disqualification on the grounds of bias or prejudice, the Court of Criminal Appeals turned to two other aspects of the trial to support reversal and remand for a new trial.

First, the Court of Criminal Appeals held that:

“Two of the judgments bore the name of the judge as district attorney at the time. We think this tended to compromise the role of the judge as an impartial arbiter in the minds of the jurors and enlisted him on the side of the State. In our opinion this prejudiced appellant in his habitual criminal trial.”

We disagree with that assessment of the affect on the jury of the trial judge’s name appearing on the entry of judgment as district attorney general. Habitual criminality is not an independent crime but a status. The status of habitual criminality is made out by the State upon showing at a bifurcated hearing, following conviction of a defendant of a triggering felony, (1) that defendant has been convicted of two other felonies and that two of the three are among those specified in T.C.A.

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Cite This Page — Counsel Stack

Bluebook (online)
649 S.W.2d 580, 1983 Tenn. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warner-tenn-1983.