            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                         April 11, 2001 Session

                 STATE OF TENNESSEE v. THOMAS DEE HUSKEY

                          Appeal from the Criminal Court for Knox County
                             No. 49828 Richard Baumgartner, Judge

                                                      AND

                 STATE OF TENNESSEE v. THOMAS DEE HUSKEY

                         Appeal from the Criminal Court for Knox County
                     Nos. 49829, 49830, 50090  Richard Baumgartner, Judge




                                     No. E1999-00438-CCA-R3-CD1
                                            October 11, 2002

                                                    ORDER

        On August 23, 2002, the defendant filed a petition to rehear claiming that the opinion of this
court fails to consider material facts, contains misstatements of fact, and overlooks or misapprehends
case law. We disagree.

                               LIMITATION OF INSANITY DEFENSE

        First, the defendant takes issue with our rulings in Issue IX on the limitation of his insanity
defense in his rape cases. He contends that with regard to the first rape case, we failed to consider
certain documents relevant to the first rape case but contained only in the record in the murder case.
We have reviewed the portions of the record that the defendant specifies and note that we did
consider all of these items with the exception of Rick Sawyer’s May 12, 1996 letter to the trial court
and his notes on telephone conversations with the parties and the trial court from May 18, 1994
through May 8, 1995. We have considered these additional items and conclude that they do not
change our determination that on May 15, 1996, the defendant refused to participate in the court-
ordered mental examination. We note that this conclusion is in harmony with our supreme court’s



        1
          Trial court case numb er 49 828 was originally do cketed for appe al as E199 9-00 481 -CCA-R3-CD . This
court ordered that E1999-00481-CCA -R3-CD be consolidated with E1999-00438-CCA-R3-CD for appeal and that
the consolidated appeal proceed under number E1999-00438-CCA-R3-CD.
statement of facts in State v. Huskey, 964 S.W.2d 892, 893 (Tenn. 1998), which relates that the
defendant refused to participate in a mental examination in the first rape trial.

         With regard to Mr. Sawyer’s May 12, 1996 ex parte letter, we reemphasize that, even if the
trial court had engaged in ex parte communications with Mr. Sawyer, it would not have justified the
defendant’s refusal to participate in a court-ordered mental examination. Additionally, we believe
no prejudice accrued to the defendant from the May 12 letter, which informed the court that the
defendant had “respectfully declined to talk to [Mr. Sawyer] upon direction from his attorney.”
Defense counsel’s May 15, 1996 proffer reveals that counsel knew Mr. Sawyer visited the defendant
at the jail and states that counsel had spoken with Mr. Sawyer after that visit. The defendant
suggests that the receipt of this ex parte information may have swayed the trial court to believe the
state’s arguments for the court to impose sanctions. We observe that at the May 15, 1995 hearing,
the defendant through his counsel expressed his enduring intention to refuse to participate in any
mental examination that applied in all of his cases. Whether and for what reason the defendant
refused to be examined on May 12 is eclipsed by his clear refusal at the May 15 hearing to engage
in a court ordered mental examination that applied in all of his cases.

         The defendant contends that our conclusion that he was given a meaningful opportunity to
submit to a mental examination before the trial court imposed sanctions at the May 15, 1995 hearing
is contrary to the facts. His arguments center around the fact that he had outstanding motions
objecting to the terms of the court-ordered mental evaluation at the time that Mr. Sawyer went to the
jail to interview him on May 12, 1995. He also argues that due process entitled him to notice that
the state was seeking sanctions and a hearing based upon competent evidence before the trial court
imposed sanctions. After examining the defendant’s contentions, we continue to conclude that the
trial court had already ruled upon the issues presented in his written objections and that the trial court
allowed the defendant to make most of these same arguments again at the May 15 hearing. With
regard to the defendant’s argument that he had not received the trial court’s May 11, 1995 order for
a mental examination by the time of Mr. Sawyer’s May 12 attempted interview, the May 15 hearing
reveals that his ultimate decision not to comply with the court-ordered mental examination was
unrelated to timing.

         The defendant contends that we failed to address his constitutional right to present a defense
or to examine closely the state’s interest in a mental examination, which limits his defense in these
circumstances. He is incorrect. We addressed his constitutional right and closely examined the
state’s interest, relying on existing authority. See Taylor v. Illinois, 484 U.S. 400, 416, 108 S. Ct.
646, 656 (1988) (holding that the exclusion of a defense witness as a sanction for a discovery
violation does not violate the defendant’s Sixth Amendment right to compulsory process, which
embodies the right to present a defense); State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App.
1981) (holding that the exclusion of defense evidence for a failure to comply with discovery rules
must be based upon prejudice to the state that cannot be mitigated by other means); see also
Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046 (1973) (observing that competing
interests proposing to warrant a limitation on a defendant’s right to present relevant evidence must
“be closely examined”).


                                                    2
        The defendant also argues that we should have reviewed the trial court’s imposition of
sanctions using a de novo standard rather than an abuse of discretion standard because his
constitutional right to present a defense was at issue. He contends that the trial court’s ruling was
not entitled to a presumption of correctness because it failed to make any factual findings. Initially,
as noted in the preceding paragraph, we determined in accord with United States Supreme Court case
law that a trial court’s sanctioning a defendant by striking defense experts in appropriate
circumstances does not violate the defendant’s right to present a defense. We then determined
whether the trial court abused its discretion in so sanctioning the defendant under the present
circumstances. The admissibility of evidence is a matter within the trial court’s discretion and will
not be reversed on appeal absent an abuse of discretion. State v. Harris, 839 S.W.2d 54, 66 (Tenn.
1992). Our supreme court has applied an abuse of discretion standard to Rule 12.2(c), Tenn. R.
Crim. P., proceedings. See Huskey, 964 S.W.2d at 899 (holding that the trial court did not abuse its
discretion in permitting multiple examiners to conduct a mental examination of the defendant).
Furthermore, this court has applied an abuse of discretion standard to review the trial court’s
dismissal of the indictment as a Rule 16(d)(2) sanction for the state’s failure to comply with
discovery. State v. Collins, 35 S.W.3d 582, 585 (Tenn. Crim. App. 2000).

        The defendant also contends that we erroneously concluded that he would not have
participated in a mental examination even if the trial court had granted his September 1, 1995 motion
for a mental exam. After considering the defendant’s arguments on this issue, we remain firmly
convinced that the discussions about the defendant’s September 1, 1995 motion and the events
leading up to the consolidated rape trial reveal that the defendant would not have participated in a
complete mental examination had the trial court granted his motion. Finally, the defendant contends
that we erroneously applied a harmless error standard in determining that he would not have
complied with an examination if the trial court had permitted one in September 1995. To the
contrary, we concluded that due process was not violated by the trial court’s failure to grant the
defendant’s request for a mental examination in September 1995, because the record of the
September 20, 1995 hearing on the defendant’s motion and the course of events preceding the
consolidated rape trial reveal that he would not have participated in a complete mental examination
before the first rape trial.

        With regard to the consolidated rape trial, the defendant contends that we failed to “closely
examine” the events leading up to the May 9, 1996 order that he be examined by Dr. Phillip Coons
as those events related to his constitutional right to present a defense. In particular, he argues that
we misapprehended the unconstitutional and unlawful nature of the order, which stems from its
requirement that he produce witnesses and turn over privileged materials. The defendant appears
to be arguing that because these provisions of the order were unlawful, he was free to refuse to
comply with the entire order. Although we held that the trial court could not require the defendant
to turn over work product or produce his witnesses other than expert witnesses before trial, we
observed that this provision of the order was not his reason for refusing to be examined by Dr.
Coons. The defendant’s argument that had he complied with the order in every respect save the
production of records and witnesses, the trial court still would have stricken defense experts is
speculative and belied by the fact that the trial court deleted this provision in the superceding order


                                                  3
of August 12, 1996. Our opinion closely scrutinizes this issue along with the defendant’s other
contentions and concludes that the trial court did not abuse its discretion in striking defense experts.

                                     DISQUALIFIED JURORS

        Second, the defendant contends that this court erroneously interpreted case law in holding
that he had waived the opportunity to challenge jurors with knowledge of his other charges by failing
to use his peremptory challenges to remove these jurors in the first rape trial. To the contrary, it is
a long-standing principle of Tennessee law that a defendant disagreeing with the trial court’s ruling
on a challenge for cause must use a peremptory challenge to excuse the juror, exhaust all of his or
her peremptory challenges, and be forced to accept an incompetent juror in order to preserve his
challenge on appeal. State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990); State v. Crawford, 620
S.W.2d 543, 545 (Tenn. Crim. App. 1981); see Hale v. State, 198 Tenn. 461, 281 S.W.2d 51, 56
(1955) (holding that the defendant failed to exercise available peremptory challenges on jurors he
had challenged for cause thereby losing the ability to challenge the jurors on appeal despite his use
of all his peremptory challenges).

       Also with respect to the issue of jury selection in the first rape trial, the defendant faults this
court for failing to conclude that the trial court abused its discretion in declining to grant him
additional peremptory challenges in light of the presence of jurors with knowledge of his other
charges. The trial court granted the defendant the number of peremptory challenges provided in
Rule 24(d), Tenn. R. Crim. P. He cites no authority for his argument that he was entitled to more.
We cannot say that the trial court abused its discretion in this regard.

                                         CONSOLIDATION

        Third, the defendant asserts that we failed to consider the whole record in holding that the
improper consolidation of D. C.’s case with those of G. T. and A. D. did not prejudice the trial with
respect to the offenses relating to G. T. and A. D. He also argues that the trial court failed to give
the jury a limiting instruction on the proper way to consider 404(b) evidence. We note that the trial
court did give a limiting instruction to the jury that each count against the defendant was a separate
and distinct offense that it must consider based solely upon the evidence and law that applied to that
offense. Additionally, we assure the defendant that we did consider the entire consolidated rape trial
in our analysis of the prejudice resulting from consolidation as well as our determination that the
error of consolidating D. C.’s case was harmless with respect to its effect on G. T. and A. D.’s cases.

        The defendant also contends that we did not consider his argument that consolidation was
improper pursuant to Rule 14(b)(2)(i), Tenn. R. Crim. P. Rule 14(b)(2) applies to sever offenses
joined pursuant to Rule 8(a), which requires mandatory joinder of offenses “based upon the same
conduct or aris[ing] from the same criminal episode.” The present cases were consolidated pursuant
to Rule 8(b), allowing for permissive joinder. In such case, Rule 14(b)(1), not (b)(2), applies. See
State v. Spicer, 12 S.W.3d 438, 443 (Tenn. 2000) (holding that when a defendant objects to



                                                    4
consolidation, the trial court must consider the issue under Rule 14(b)(1)). This issue is without
merit.

     SUBSEQUENT RULINGS OF THE TRIAL COURT IN THE MURDER CASES

         Finally, the defendant contends that we should consider the trial court’s August 2002
suppression of his confessions and the physical evidence taken from the search of his room in the
retrial of his homicide case. He argues that the trial court’s orders suppressing this evidence affect
our rulings on the legality of his arrest, the search of his residence and seizure of evidence therefrom,
the suppression of his statements, the order of his trials, and the state’s failure to provide discovery
and exculpatory evidence. We have denied the defendant’s motion to supplement the record with
these orders. He would have us accredit the trial court’s findings and conclusions in the homicide
case, which is not before us. We may not do so. Thus, we will not reconsider our holdings in the
present case in light of the trial court’s August 2002 orders in the retrial of the homicide case. In any
event, we reemphasize that the state did not use the defendant’s confessions or any of the physical
evidence taken from his residence in the rape cases on appeal. Thus, questions relating to the
suppression of the statements or the physical evidence collected in the search of the defendant’s
residence are essentially moot in the rape cases that we have affirmed.

        Accordingly, the defendant’s petition to rehear is denied.

                                                        PER CURIAM
                                                        (Tipton, Welles, Hayes, JJ.)




                                                   5
