Williams v. State , 4 Tenn. Crim. App. 16 ( 1971 )

OPINION

OLIVER, Judge.

David Earl Williams, the petitioner below, an inmate of the State Penitentiary at the Shelby County Penal Farm where he is serving a three-year sentence for third degree burglary, indigent and represented by the Shelby County Public Defender upon appointment by the court, is before this Court upon his appeal from the judgment of the Criminal Court of Shelby County dismissing his habeas corpus petition without an evidentiary hearing.

In his habeas corpus petition Williams assails the validity of his conviction upon the sole ground that the jury was not sequestered during his three-day trial, in which he was represented by retained counsel. Specifically, he alleges that the trial judge allowed the jurors to go home, and then he advances a pure conclusion with this question: “How could this jury be impartial with all the radio, television, newspapers an [sic] contact with other people, while not in strict custody.” His only Assignment of Error here is that the trial court should have granted him an evi-dentiary hearing.

Along with its motion to strike the petition, the State filed a copy of the indictment and copies of the Minute entries reflecting the trial and final disposition of the case. Those records show that at the conclusion of the trial, in which the jury found the petitioner and his co-defendant, Irvin R. Hudson, guilty of third degree burglary and sentenced them to confinement in the penitentiary for not more than three years, their counsel made an informal motion for a new trial; that on the date set for hearing their new trial motions, both Williams and Hudson appeared before the court with their retained counsel and “understandingly, freely and voluntarily” waived their right to file a new trial motion and to an appeal and specifically requested the court to render final judgment against them upon the verdict of the jury. The trial judge, the late W. Preston Battle, thereupon granted the respective and identical motions of the petitioner and Hudson and entered a separate order as to each of them reciting:

“And from questioning by the Court of the Defendant and his Counsel in open Court; and from all of which

“IT APPEARING TO THE COURT after careful consideration that the defendant herein has been fully advised and has freely, voluntarily, intelligently and understanding^, without any threats or pressure of any kind or promise of gain or favor from any source, chosen and elected to waive a motion for a new trial and appeal in this case;

“IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the oral petition of the defendant be and the same is hereby granted and the judgment is hereby entered in accordance with the jury verdict heretofore imposed.”

The State’s position is that, having knowingly and understanding^ waived his right to file a motion for a new trial and to appeal, upon the advice of retained counsel, the petitioner waived the error by the trial court, if such it was, in failing to sequester the jury during his trial. We agree.

If the trial judge erred in failing to sequester the jury, which we do not and cannot decide upon the record before us, the petitioner and his retained counsel had every right to present and press that matter before the trial judge in a motion for a new trial, and, failing in that, to bring the same question before this Court by appeal in the nature of a writ of error. Having intelligently and freely elected, upon the advice of his attorney, to forego resort to available procedures to raise and test that question in the trial court and by appellate review, unquestionably the petitioner thereby waived all right to raise the question later in a collateral proceeding.

By specifically moving the trial court to render final judgment against him upon the verdict of the jury, the petitioner recognized and acquiesced in the validity of that verdict and he is not permitted to challenge its validity or the court’s judgment thereon in a collateral proceeding.

But that is not all. At the time of the petitioner’s trial the pertinent statute, TCA § 40-2528, provided:

“Separation of jurors permitted in Certain cases.—From and after February 24, 1965, the criminal judge, in his discretion, with the consent of the defendant, and with the consent of the district attorney-general, may permit jurors to separate at times when they are not duly engaged in the trial or deliberations of the case in all criminal cases in which the penalty for the offense on which the defendant is put to trial does not exceed ten (10) years in the penitentiary.”

The penalty for third degree burglary is penitentiary imprisonment for not less than three nor more than ten years. TCA § 39-904. Thus, in the petitioner’s trial the trial judge was permitted, in his discretion and with the consent of the defendant and his counsel and the District Attorney General, to allow the jury to separate when they were not engaged in the trial or in their deliberations upon the case.

The petitioner does not say in his petition that the separation of the jury was without his or his counsel’s or the District Attorney General’s consent, or without the consent of either of them.

TCA § 40-2528 modified, to the extent therein stated, the prior general rule in this State relating to jury separation enunciated by our Supreme Court in Hines v. State, 27 Tenn. 597; Long v. State, 132 Tenn. 649, 179 S.W. 315; Steadman v. State, 199 Tenn. 66, 282 S.W.2d 777.

It is thus clear that the petitioner in this case fails to charge any unlawful or wrongful separation of the jury during his trial, and therefore does not charge any constitutional deprivation or prejudicial error by the trial judge.

A petition for the writ of habeas corpus which alleges sufficient facts to support a finding that petitioner’s conviction was void because of alleged denial of constitutional rights necessitates an eviden-tiary hearing. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165.

However, a trial judge may properly dismiss a petition for the writ without an evi-dentiary hearing if on the face of the petition it shows petitioner is not entitled to any relief. State ex rel. Goss v. Heer, 220 Tenn. 36, 413 S.W.2d 688.

Let the judgment of the trial court be affirmed.

MITCHELL, J., concurs.