State v. William Posey

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 24, 1997
• Docket: 01C01-9605-CR-00214
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH 1997 SESSION April 24, 1997

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) Appellee, ) No. 01C01-9605-CR-00214 ) ) Davidson County v. ) ) Honorable Thomas H. Shriver, Judge ) WILLIAM L. POSEY ) (Aggravated robbery) a.k.a LEM POSEY, ) ) Appellant. )

For the Appellant: For the Appellee:

F. Michie Gibson, Jr. John Knox Walkup 1416 Parkway Towers Attorney General of Tennessee 404 James Robertson Parkway and Nashville, TN 37219 Anthony D. Miller Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493

Victor S. Johnson, III District Attorney General and Nicholas Bailey Pam Anderson Assistant District Attorneys General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, William L. Posey a.k.a. Lem Posey, was convicted

in a jury trial in Davidson County Criminal Court of seven counts of aggravated robbery,

a Class B felony. As a Range II, multiple offender, he received an effective sentence of

sixty-four years in the Department of Correction consecutive to a previous life sentence

imposed in Georgia. In this appeal as of right, his only issue is whether the trial court

abused its discretion by refusing to sever the various charges for separate trials. We

hold that the trial court’s refusal was proper.

The defendant was convicted of aggravated robbery relative to the

following places and times:

Dollar General Store, Nollensville Rd. Sept. 16, 1993 12:45 p.m. Dollar General Store, Nollensville Rd. Nov. 20, 1993 7:55 p.m. Dollar General Store, Lebanon Rd. Nov. 23, 1993 6:00 p.m. Dollar General Store, Antioch Pike Dec. 4, 1993 6:15.p.m. Family Dollar Store, Gallatin Rd. (2 victims) Dec. 8, 1993 5:45 p.m. Dollar General Store, Antioch Pike Jan. 11, 1994 6:50 p.m.

The defendant was also charged with aggravated robbery at a Wendy’s restaurant on

December 12, 1993, but the jury acquitted him of this charge.

The proof reflects that in each store, the defendant entered, shopped

around as a normal customer, approached the cashier with a purchase, pulled a firearm

when the cashier rang up the purchase, ordered the cashier to give him the money in

the register, usually demanding the money under the till box, as well, had the money

placed in a store customer bag, and walked out. In the Wendy’s robbery, the defendant

approached the counter, had the cashier take the money from the cash drawer,

including under the till box, had the money placed in a Wendy’s bag, and walked out.

The defendant did not attempt to mask his appearance. In each instance,

store employees identified the defendant as the perpetrator. Police matched his

2 fingerprints with those of the perpetrator in the January 11, 1994, Dollar General Store

robbery. Also, the defendant admitted to an F.B.I. agent that he robbed the Dollar

General Stores on November 18 and December 4, 1993, and the Family Dollar Store

on Gallatin Road.

In this appeal, the defendant’s argument in his brief consists solely of the

following:

A defendant is entitled to severance of offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others. The court should also grant a severance of offenses if appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. State v. Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983).

There is no specification of how his case circumstances meet the criteria for severed

trials. And we find none in the record.

In this respect, we note that the record fails to include the transcript of the

hearing apparently held by the trial court at which the severance issue was presented.

However, the defendant’s motion in the trial court is in the record, its thrust being that

the fact of separate victims and separate dates should allow for separate trials to

promote a fair determination of the defendant’s guilt or innocence.

Pursuant to Rule 14(b)(1), Tenn. R. Crim. P., “the defendant shall have a

right to a severance of the offenses unless the offenses are part of a common scheme

or plan and the evidence of one would be admissible upon the trial of the others.” Also,

pursuant to Rule 14(b)(2), a severance will occur if “it is deemed appropriate to promote

a fair determination of the defendant’s guilt or innocence of each offense.”

In State v. Hallock, 875 S.W.2d 285 (Tenn. Crim. App. 1993), authored by

now Chief Justice A. A. Birch, this court provided an excellent analysis of the

3 requirements under Rule 14(b)(1) for having a trial with consolidated offenses. It

emphasized that a defendant has a right to a severance unless a two-prong test is

met: (1) the offenses must be part of a common scheme or plan and (2) the evidence of

one must be admissible in the state’s case-in-chief upon the trial of the others. Id. at

289. In this sense, it emphasized that not only must a common scheme or plan be

shown, but the evidence of one offense must be relevant to proving other offenses.

In the present case, the series of events that are similar in each offense

reflect a modus operandi that can be characterized as a signature by the perpetrator.

This reflects that the offenses were part of a common scheme or plan. See Hallock,

875 S.W.2d at 290. Moreover, such a distinctive set of recurrent actions by the

perpetrator of the offenses in this case would be admissible in separate trials for each

of the offenses because of its relevance to the perpetrator’s identity, an issue litigated in

the present case.

Given these circumstances and the policy considerations regarding the

efficient use of justice system resources, see State v. Lunati, 665 S.W .2d at 746, we

conclude that it was within the sound discretion of the trial court to deny a severance.

See State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). The judgment

of conviction is affirmed.

_______________________________ Joseph M. Tipton, Judge

4 CONCUR:

__________________________ Joe G. Riley, Judge

__________________________ Thomas T. W oodall, Judge