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State v. Davidson5/12/2000
efendant alleges that the trial court committed plain error by granting the state eight peremptory challenges, because Tennessee Rule of Criminal Procedure 24 allowed the state only four such challenges. These challenges, alleges the defendant, were "to get to" Chris Crabtree. Crabtree, who had worked with the victim's brother, stated that he would find it difficult to set aside a preconceived opinion about the case.
We consider this assertion on two levels: the alleged extra challenges and the actual presence of Crabtree. First, we note a lack of contemporaneous objection to this order, constituting waiver of the issue. See Tenn. R. App. Pro. 36(a). Nonetheless, Tennessee Code Annotated § 40-18-118 establishes that " ot withstanding any other provision of law or rules of court to the contrary, in any case. . . f the offense charged is punishable by imprisonment by more than one (1) year, but not by death, each defendant is entitled to eight (8) peremptory challenges, and the state is entitled to eight (8) peremptory challenges for each defendant." (Tennessee Rule Criminal Procedure 24(d) was subsequently amended accordingly with that statute.). See Tenn. R. Crim. P. 24(d) (advisory comm'n. comment to 1997 amendment). The state sought life imprisonment, not the death penalty, for the original charges of first degree murder. Thus, an appropriate number of challenges was allowed. We address the specific issue of Crabtree's status as a juror in subsequent analysis.
Unfair and Impartial Jurors
As previously mentioned, the defendant identified three jurors who stated that they had some opinions regarding the case. Crabtree worked with the defendant's brother approximately four years before the trial. He acknowledged that he had heard rumors about the case and, although he might feel it "hard to," he could set aside rumors that he had heard. He would find it difficult to set aside a preconceived notion regarding the case, but, in response to the court's specific questions, stated that he would be able to disregard prior acquaintances and opinions and decide the case only on the proof, thus providing each side with a fair trial.
Connie Hargis stated that she had formed an opinion that a homicide had actually occurred, as did Jackie Jones and Steven Bilbery. Hargis was dismissed by the court. Bilbery stated to the court that he could set aside his impressions and evaluate the case on the evidence. Jones stated that he understood and agreed with the legal principle that unless the state proved every element of the case beyond a reasonable doubt he would be required to vote for acquittal. Further, he understood and agreed with the principle that an accused was presumed innocent until proven guilty. Finally, he would not "guess" an accused into guilt and subsequent confinement. Because the jurors stated that they would decide the case solely on the proof and would dispense with personal opinions, we find no error.
Cumulative Error
In view of the preceding conclusions, we do not find cumulative error mandating a new trial in the jury selection procedure.
Sentencing
The defendant asserts that the trial court erroneously imposed consecutive sentences for the two second degree murder convictions. When an accused challenges the length of manner of service of a sentence, this Court reviews the record de novo "with a presumption that the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is contingent on the record indicating both the lower court's reasons for arriving at a sentencing decision and compliance with the statutory sentencing gui
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