Opinion
July 16, 1971. Certiorari Denied by Supreme Court December 20, 1971.
Appeal from the Criminal Court, Blount County, Lloyd G. McCluen, J.
Affirmed.
Hugh E. DeLozier, Jr., Maryville, for petitioner.
David M. Pack, Atty. Gen., Lance D. Evans, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, for respondent.
OPINION
This is an appeal from the dismissal without a hearing of a petition for post conviction relief, sixth or eighth in number, from the judgment of the Blount County Criminal Court.
The contention of petitioner in this petition is that a deputy sheriff was allowed to testify, who had been in the courtroom during the testimony of other State witnesses. He further contends that this witness was in and out of the courtroom with the jury. He also asserts he was tricked into abandoning his appeal. The petitioner is serving a life sentence imposed on September 3, 1964, for committing the offense of murder in the first degree. At the trial the testimony of the deputy sheriff was objected to by court-appointed counsel and overruled by the court. This testimony is attached to this petition reflecting the trial court, because of the large crowd in attendance, commanded the deputy to stay in the courtroom. This is a matter within the discretion of the trial court and does not rise to constitutional dignity.
The petitioner did not appeal his conviction. The trial court in this record in its order of dismissal found that the questions raised had been "previously determined." Court-appointed counsel seeks reversal of this judgment and in clear candor states the basis for his argument is that the trial court did not have all of the records before it in accordance with T.C.A. 40-3809. In other words, there is an insufficiency of the record to support his action. He quotes no case authority to support his contention.
The State in its reply brief attaches a copy of an opinion of the Supreme Court of this State written by former Chief Justice Hamilton Burnett styled State of Tennessee ex rel. John Harold Fuller v. C. Murray Henderson, Warden, Bount Criminal, released November 14, 1966, which was an appeal after an evidentiary hearing, one of petitioner's petitions. In that opinion our Supreme Court in affirming the dismissal upheld the trial court's holding that petitioner understandingly and intelligently waived his appeal from his conviction.
In the opinion it is further noted that petitioner's other contentions were considered; namely, that the deputy sheriff witness was allowed to stay in the courtroom and that the deputy sheriff was in and out of the courtroom with the jury. The court found that none of the petitioner's constitutional rights had been violated and affirmed the action of the trial judge in dismissing his petitions. In other words his contentions have been ventilated and found unmeritorious.
In the order of dismissal the trial court found that no new grounds were presented in this petition that have not been adjudicated by the Court of Criminal Appeals or our Supreme Court. The cited attached opinion of our Supreme Court reflects a sufficiency of the record upon which the trial court could and did act to meet the requirements of T.C.A. 40-3809. We are governed by the holdings and rulings of our Supreme Court as is the trial court and with judicial knowledge of such holdings we therefore hold that the grounds alleged have been "previously determined." T.C.A. 40-3812.
The judgment of the trial court is affirmed.
WALKER, P.J., and RUSSELL, J., concur.