State v. William Posey ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
April 24, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9605-CR-00214
)
) Davidson County
v. )
) Honorable Thomas H. Shriver, Judge
)
WILLIAM L. POSEY ) (Aggravated robbery)
a.k.a LEM POSEY, )
)
Appellant. )
For the Appellant: For the Appellee:
F. Michie Gibson, Jr. John Knox Walkup
1416 Parkway Towers Attorney General of Tennessee
404 James Robertson Parkway and
Nashville, TN 37219 Anthony D. Miller
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Nicholas Bailey
Pam Anderson
Assistant District Attorneys General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, William L. Posey a.k.a. Lem Posey, was convicted
in a jury trial in Davidson County Criminal Court of seven counts of aggravated robbery,
a Class B felony. As a Range II, multiple offender, he received an effective sentence of
sixty-four years in the Department of Correction consecutive to a previous life sentence
imposed in Georgia. In this appeal as of right, his only issue is whether the trial court
abused its discretion by refusing to sever the various charges for separate trials. We
hold that the trial court’s refusal was proper.
The defendant was convicted of aggravated robbery relative to the
following places and times:
Dollar General Store, Nollensville Rd. Sept. 16, 1993 12:45 p.m.
Dollar General Store, Nollensville Rd. Nov. 20, 1993 7:55 p.m.
Dollar General Store, Lebanon Rd. Nov. 23, 1993 6:00 p.m.
Dollar General Store, Antioch Pike Dec. 4, 1993 6:15.p.m.
Family Dollar Store, Gallatin Rd. (2 victims) Dec. 8, 1993 5:45 p.m.
Dollar General Store, Antioch Pike Jan. 11, 1994 6:50 p.m.
The defendant was also charged with aggravated robbery at a Wendy’s restaurant on
December 12, 1993, but the jury acquitted him of this charge.
The proof reflects that in each store, the defendant entered, shopped
around as a normal customer, approached the cashier with a purchase, pulled a firearm
when the cashier rang up the purchase, ordered the cashier to give him the money in
the register, usually demanding the money under the till box, as well, had the money
placed in a store customer bag, and walked out. In the Wendy’s robbery, the defendant
approached the counter, had the cashier take the money from the cash drawer,
including under the till box, had the money placed in a Wendy’s bag, and walked out.
The defendant did not attempt to mask his appearance. In each instance,
store employees identified the defendant as the perpetrator. Police matched his
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fingerprints with those of the perpetrator in the January 11, 1994, Dollar General Store
robbery. Also, the defendant admitted to an F.B.I. agent that he robbed the Dollar
General Stores on November 18 and December 4, 1993, and the Family Dollar Store
on Gallatin Road.
In this appeal, the defendant’s argument in his brief consists solely of the
following:
A defendant is entitled to severance of offenses unless
the offenses are part of a common scheme or plan and the
evidence of one would be admissible upon the trial of the
others. The court should also grant a severance of offenses
if appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense. State v.
Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983).
There is no specification of how his case circumstances meet the criteria for severed
trials. And we find none in the record.
In this respect, we note that the record fails to include the transcript of the
hearing apparently held by the trial court at which the severance issue was presented.
However, the defendant’s motion in the trial court is in the record, its thrust being that
the fact of separate victims and separate dates should allow for separate trials to
promote a fair determination of the defendant’s guilt or innocence.
Pursuant to Rule 14(b)(1), Tenn. R. Crim. P., “the defendant shall have a
right to a severance of the offenses unless the offenses are part of a common scheme
or plan and the evidence of one would be admissible upon the trial of the others.” Also,
pursuant to Rule 14(b)(2), a severance will occur if “it is deemed appropriate to promote
a fair determination of the defendant’s guilt or innocence of each offense.”
In State v. Hallock, 875 S.W.2d 285 (Tenn. Crim. App. 1993), authored by
now Chief Justice A. A. Birch, this court provided an excellent analysis of the
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requirements under Rule 14(b)(1) for having a trial with consolidated offenses. It
emphasized that a defendant has a right to a severance unless a two-prong test is
met: (1) the offenses must be part of a common scheme or plan and (2) the evidence of
one must be admissible in the state’s case-in-chief upon the trial of the others. Id. at
289. In this sense, it emphasized that not only must a common scheme or plan be
shown, but the evidence of one offense must be relevant to proving other offenses.
In the present case, the series of events that are similar in each offense
reflect a modus operandi that can be characterized as a signature by the perpetrator.
This reflects that the offenses were part of a common scheme or plan. See Hallock,
875 S.W.2d at 290. Moreover, such a distinctive set of recurrent actions by the
perpetrator of the offenses in this case would be admissible in separate trials for each
of the offenses because of its relevance to the perpetrator’s identity, an issue litigated in
the present case.
Given these circumstances and the policy considerations regarding the
efficient use of justice system resources, see State v. Lunati, 665 S.W .2d at 746, we
conclude that it was within the sound discretion of the trial court to deny a severance.
See State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). The judgment
of conviction is affirmed.
_______________________________
Joseph M. Tipton, Judge
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CONCUR:
__________________________
Joe G. Riley, Judge
__________________________
Thomas T. W oodall, Judge
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