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State v. Peek5/3/2000
to each of the five victims. Without this information, the trial court could not adequately determine, as required by Spicer, whether "(1) the multiple offenses constitute parts of a common scheme or plan, Tenn. R. Crim. P. 14(b)(1); (2) evidence of each offense is relevant to some material issue in the trial of all the other offenses, Tenn. R. Evid. 404(b)(2) . . . and [that] (3) the probative value of the evidence of other offenses is not outweighed by the prejudicial effect that admission of the evidence would have on the defendant, Tenn. R. Evid. 404(b)(3)." 12 S.W.3d at 445. Accordingly, it was error to allow the separate complaints of all five victims to be tried in a single trial. Based upon the evidence presented at the hearing, five separate
trials should have been held.
Harmless Error
Having concluded that it was error for the cases involving all five victims to be consolidated into a single trial, we must next determine whether there must be new trial trials ordered.
No conviction is to be reversed on appeal "except for errors which affirmatively appear to have affected the result of the trial on the merits." Tenn. R. Crim. P. 52(a); see also Tenn. R. App. P. 36(b). The "line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt." Shirley, 6 S.W.3d at 242 (citing Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979)).
In this case, the State's proof exceeded by a wide margin the standard required to convict the defendant of the offenses beyond a reasonable doubt.
Therefore, because the evidence of guilt in all five cases was overwhelming, we conclude that it was harmless error for the trial court to fail to consolidate all of the indictments into a single trial, and new trials are not required to ensure that these convictions were not the result of unfair prejudice. However, it is essential that our concluding that the error was harmless not be taken to mean that error in consolidation of cases for trial will be determined to be harmless. Sufficient evidence must be presented at the pretrial hearing in this regard for a proper determination to be made as to whether consolidation or severance is required. Without such evidence, and appropriate findings of fact and conclusions of law, it is difficult for an appellate court to sustain an order of the trial court in this regard. As to these cases, it is only because of the strength of the proof in each that it is not necessary to reverse the convictions and remand for new trials.
II. SUPPRESSION OF EVIDENCE
The defendant has attacked the validity of the search warrant obtained by investigating officers to obtain his blood, saliva, and hair samples, claiming that it did not establish probable cause.
Our supreme court, in State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999), set out the general rules regarding the issuance of a search warrant:
As a general rule, a search warrant shall be used only on the basis of an affidavit, sworn before a "neutral and detached" magistrate, which establishes probable cause for its issuance. See Jacumin, 778 S.W.2d at 431; State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). A showing of probable cause requires, generally, reasonable grounds for suspicion, supported by circumstances indicative of an illegal act. State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993). Thus, the need for the magistrate to make a neutral and detached decision regarding the existence of probable cause requires that the affidavit contain more than mere conclusory allegations by the affia
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