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State v. Peek5/3/2000
or the search warrant and statements from the prosecuting attorney as to certain of the facts of each of the five cases. We will now examine that hearing to determine whether it complied with the Spicer requirements.
As to the three cases occurring in the East Brainerd section of Chattanooga, involving the victims T.P., K.S., and G.C., the defense attorney gave brief synopses of the facts of each case. He argued that the prejudice to the defendant of prosecuting in a single trial all cases involving all five victims would outweigh any probative value. The prosecuting attorney contended that all cases could be tried together. He advised the court that there were "DNA probe matches" on all five of the cases, and that the issue in each case was "identity." The prosecutor then argued that there were certain similarities in the cases and argued that all cases should be tried in a single trial because they were a "common scheme or plan . . . contemplated under Rule 14(b)(1) and for purposes of judicial economy." Additionally, the prosecuting attorney referred the trial court to the affidavit to take hair and body fluid samples from the defendant for facts as to the two East Lake cases.
The court then denied the defense's motion for a severance, concluding that the evidence as to one victim would be admissible in trials of the others:
All right. All right. I believe that under Rule 14(b)(1), that, that where it states, "If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have the right to a severance of the offenses unless the offenses are part of a common scheme or plan, the evidence of one would be admissible upon the trial of the others," and I believe that the evidence of one would be admissible on trial of the others, so let your motion for a severance be denied. We will try all of them together.
Although the offenses had not been consolidated, the trial court, apparently believing that this had occurred, appears to have ruled that the offenses were part of a "common scheme or plan" and that "evidence of one would be admissible" in the trial of the others. Accordingly, the trial court denied the motion for severance. It does not appear that consideration was given as to whether the prejudicial effect of all charges against the defendant being tried before a single jury was outweighed by its prejudicial effect.
The procedures are mandatory and explicit which must be followed in a hearing to determine the admissibility of proof of other crimes. They are explained in State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985):
First [the trial judge] should have heard the evidence out of the presence of the jury for the purpose of determining whether or not the proof of commission of the prior crime and defendant's connection therewith met the clear and convincing test mandated in Wrather v. State, supra. If the proof had cleared that hurdle then the final test should have been whether or not its prejudicial effect outweighed its probative value. See Bunch v. State, supra.
The record must show affirmative compliance with these two requirements as a mandatory pre-requisite for review by the appellate courts. The record in this case is silent of any indication whatever that the trial judge made either of these determinations.
The information provided to the trial court at the severance hearing consisted of statements of the prosecutor as to similarities among the incidents and the sworn statement set out in the search warrant affidavit. Testimony was not presented, as occurred in Shirley, to enable the trial court to review in a detailed and meaningful manner the facts as
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