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State v. Thomas2/27/2004
ptember 11, 2001.
The granting of a continuance rests within the sound discretion of the trial court. See State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999). We will reverse the denial of a continuance only if the trial court abused its discretion and the defendant was prejudiced by the denial. See id. "An abuse of discretion is demonstrated by showing that the failure to grant a continuance denied defendant a fair trial or that it could be reasonably concluded that a different result would have followed had the continuance been granted." State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995).
In the present case, the trial court's denial of a continuance was not error. The trial was scheduled to begin on September 10, 2001. On September 10, 2001, eleven jurors were tentatively selected and the matter continued to September 11 for a second day of jury selection. Although not evidenced by the record, September 11, 2001, is the date of the terrorist attacks on New York City and Washington, D.C. On September 11, 2001, eighteen jurors were tentatively selected. At some point on that day, defense counsel moved for a continuance. The trial court continued the trial until September 17. While the events of September 11, 2001, were of unquestionable national importance, Defendant Thomas fails to explain how those events affected his trial. Nothing in the record before us indicates that those events had any effect on the proceedings other than to delay them for one week. Thus, Defendant Thomas has failed to show how he was prejudiced by the trial court's refusal to grant a continuance for a longer period of time. We find neither error nor abuse of discretion. This issue is without merit.
IV. Juror Pannell
Defendant Thomas contends that the trial court erred by excusing Prospective Juror Gary Pannell for cause based upon his view regarding the death penalty. During voir dire, the following colloquy occurred:
MS. WEIRICH: Mr. Pannell, same question to you, if the State of Tennessee proves the aggravating circumstances, beyond a reasonable doubt, and proves that they weigh more than the mitigators, again, beyond a reasonable doubt, can you sentence one or both of the defendants to death?
PROSPECTIVE JUROR: I really don't think so.
PROSPECTIVE JUROR: I had a hard time dealing with it last night, soul searching and everything.
MS. WEIRICH: All right.
PROSPECTIVE JUROR: And there have been articles in the paper recently about planted evidence and stuff like that, that it makes it hard for me to say that I would agree to a death sentence on something I didn't witness myself.
MS. WEIRICH: That's fine.
PROSPECTIVE JUROR: Or to hear the person charged with the crime to personally admit to it himself.
MS. WEIRICH: All right. So you couldn't follow the law in the State of Tennessee if what I have told you would be the law that you would have to follow according to [Judge] Dailey's instructions?
PROSPECTIVE JUROR: Well, you know you have to listen to witnesses.
MS. WEIRICH: Yes, sir.
PROSPECTIVE JUROR: Okay. And that's where I would have a problem, is taking what they are saying, and saying, "Okay, what they are saying is true," which I don't know-
MS. WEIRICH: All right.
PROSPECTIVE JUROR: And to me, death is - it's a permanent thing.
MS. WEIRICH: Yes, sir. Thank you.
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