*1 Tennessee, Appellee, STATE of Wayne ADKINS, Appellant.
Carl Supreme Tennessee, Court of
at Knoxville. Feb. *2 Bowman, Jessee, James T.
Robert J. appellant. City, Johnson for Cody, Re- Atty. Michael Gen. and W.J. Gen., porter, Kathy Principe, Atty. M. Asst. Nashville, appellee.
OPINION
FONES, Justice. 29, 1980, January
On defendant was con degree first murder and sen victed of appeal, this tenced to death. On Court degree affirmed the of first mur conviction penalty and der but reversed the death resentencing hearing. for a remanded Adkins, (Tenn. State v. 1983). 1984, In October hearing jury again and the as was held penalty. sessed the death The trial granted defendant’s motion for a sen new tencing hearing advising for error imposed that the first had hear penalty. third ing It also resulted was held June 1985. appeal, in a sentence of death. On this allegedly defendant asserts errors commit hearing. ted at that We find that no errors and affirm the sentence of were committed death. upon
The State relied two circumstances, previous conviction to-wit: of one or more felonies which involved the person of violence to the use or threat avoid, pre- murder committed to prosecution vent or interfere with the offense. T.C.A. defendant for another (i)(6). 39-2-203(i)(2)and § proved September on The State convicted of murder in defendant was degree and sentenced to ten the second Penitentiary. years in the State further of the first circum- stance, September proved pled guilty to a aggravated assault and was sentenced Penitentiary. years two the State Bell, assault, Shirley testified victim of that ap- with defendant for that she had lived approxi- and that proximately four months he mately months after she left him two As result she shot her in the stomach. hospitalized for six months and was told again. Morton, that she would never walk Jean which were returned “Not to shooting That place took at a trailer be- Found,” and that a blood alcohol test longing Adams, to Junior Shirley where performed on the victim Junior Adams dur- temporarily residing. ing autopsy registered .12. Defendant proved also pled that he guilty ag- had The victim of the murder for which de- gravated arising assault out of the fendant has been convicted in shoot- this case was place Junior Adams. The Bell and murder took had received a two *3 May 1979. year Defendant was indicted for sentence jail and had been confined to Shirley 14,1979, the assault on May Bell on since his in arrest and was arrested on that the follow- The proof remainder of the by offered ing day. In support aggra- of the second defendant objected by the State. circumstance, vating proved the State objection This by was sustained the trial eyewitness Junior Adams was an to the judge. proof, Defendant’s offer of ad- shooting Shirley Shirley Bell. Bell testi- presence duced jury, outside inis day fied that on the Adams was killed she the record. It principally consisted of testi- Adams, heard defendant ask “What he was mony by Jimmy Burroughs, one who was a going concerning my case,” to tell friend of Bob Morton. Bob Morton was respond going and Adams that he was Morton, married Jean identified (expletive) tell the truth. prostitute. record as a Jean Morton was jury’s expressly third verdict found living Junior with Adams June 1978 and that defendant previously had been convict- present at Adams’ trailer when defend- ed of degree murder in the second and Shirley ant Burroughs shot Bell. testified aggravated assault on Bell consti- 22, 1979, May that on day Adams was tuting proscribed aggravating circum- killed, Jean Morton and Junior Adams were 39-2-203(i)(2). stance described in T.C.A. § Varsity Grill at the lunch hour. No mention aggra- was made of the other When Bob Morton came and asked Jean vating circumstance. Defendant does not going Morton she was home jury’s contend that the failure to find that night, responded she spending that she was proven the State had not aggra- the second night with Junior Adams. Bob Morton vating beyond a reasonable grill sat down in the later elsewhere but doubt affected the sentence of death and approached his wife and asked the same Parenthetically, we hold that it does not. question and received the same answer. we note that at the first trial of this case Morton then told Junior Adams that he aggravating (i)(6) circumstance night kill him would before the was over. presented jury sentencing at the hearing Burroughs substantially on the same evidence also testified that four or five presented as jury. days the third before Bob Morton died he confessed The first found that cir- Burroughs that he killed Ad- had Junior proven, cumstance to justifying 5, 1981, have been ams. Bob Morton died on June penally. the death On our review years more than two after Adams was found no error in the submission of that year murdered and more than a after de- circumstance to that and fendant had been convicted and sentenced expressly that, noted but other errors court, to death in the trial all of which involving aggravating not circumstance events were well to the witness known (i)(6), the death sentence could have been Burroughs. The cross examination of Bur- imposed as a result of that trial. 653 roughs, focusing on when and to whom he S.W.2d at 716. reported grill the conversation at the and shortly the confession before Morton’s proof
Defendant adduced that he had death, very questions raised serious about adjudged indigent been represent- and was credibility testimony of that if it had attorneys ed other at the first trial. His proof further at the sen- showed that he had issued been relevant and admissible subpoenas witness Whaley tencing hearing. for Walt Attorney District allegation that the upon the of his several issues Defendant based Washington County exer- as- Burroughs’ testimony. He General exclusion discretion to seek cising prosecutorial (1) granted he should have been serts that penally in an the death or not to seek guilt or inno- trial on the issue a new As a re- capricious manner. arbitrary and confession” of the “death bed cence since suggests prong, defend- lated second have established Morton would Bob necessary so requested was innocence; (2) improp- that the data the trial ant’s appropri- an could conduct Burroughs’ testimony that this Court erly excluded further review and proportionality his wife ate Morton’s conversation with Bob limiting re- such Grill; charges with this Court Varsity Adams at the and Junior the Su- come before “to cases which (3) improperly excluded Bur- view the trial appeal.” preme Morton’s Court roughs’ testimony reporting Bob alleged confession. counsel proof that defendant’s public records and sought con was available
Defendant has been tried and dig obligation to it out His is their Adams. it *4 of the murder Junior victed it court if deem present it in the trial asserting errors at that trial has appeal addition, In this Court has and fully by this Court relevant. been considered information, Washington just from reported in 653 not in an affirmed in Hartman, every county the State County, 703 but from S.W.2d 708. re proportionality our (Tenn.1985), Tennessee and held that the 106 we S.W.2d since Tennes cases guilt is not relevant view of issue of or innocence (formerly Rule 12 Rule hearing. resentencing Supreme Court sentencing At a see at a pred 47) in 1978has been promulgated and defendant are hearing, both the State was has reports and relating largely on those entitled to offer evidence icated sen that have of the crime so that the limited to the cases never been background no tencing jury appeal. essential There is will have us on come before jury acts information “to ensure that the to this issue. merit knowledge sentencing a in the from base speedy right his to a says that Defendant Teague, 680 defendant.” See State v. The murder was trial has been violated. (Tenn.1984). 788 It is elemen S.W.2d 22,1979; May and defendant committed on guilt in tary that the issue of or innocence tried, and sentenced to death convicted capital requires case a full scale trial and a followed February 1980. That trial was in adjunct resentencing cannot be an of a trial, his motion for a new by defendant’s hearing. procedures, There are too well Court, preparation of a sub- appeal to this discussion, obtaining require known record, argument. briefing and oral stantial guilt capital in a a retrial of or innocence released on decision was This Court’s case; issue is not available at a but that resentencing The first March hearing. resentencing 1984, and the in October hearing was held in hearing held say that the trial second It is sufficient Burroughs’ testi June 1985. correctly excluded the only it relevant to mony because any of the not focus on Defendant does or innocence and not relevant guilt issue of numerous those intervals between time background information. essential as delay involving but undue proceedings testimony why reasons are other There there on the fact that instead focuses unnecessary to which are was inadmissible trial the first interval between year five relate. sentencing, resen- or second the third Also, com- hearing. tencing, trial asserts as error the of the Assistant the actions plains about pretrial motion to re- judge’s denial of his offering as evidence Attorney in District trial court to furnish quire the clerk of the hearing indictments first persons charged the him a list of all of the with from witnesses parte statements and ex degree murder since 1977 and with first in indictments. charges charges disposition of those 664
further complains
action of the
terests of the defendant
identified Bark-
trial
resentencing hearing
at the first
(i.e., prevention
er
oppressive
pre-trial
advising
that the
sentenc-
incarceration, minimization
anxiety
ing jury had sentenced defendant to death.
and concern accompanying public accusa-
tion and limitation of possibility
delay
It
is defendant’s contention that
impair
will
ability
accused’s
to defend
those were errors attributable to the State
himself)
application
no
have
when the ac-
which
implicitly prolonged
have
pro
already
cused has
been
convicted
an
ceedings against defendant to the extent
offense. See
Cunningham,
Sands v.
right
that his
speedy
to a
trial has been
F.Supp.
(D.N.H.1985)
and cases cited
violated.
authority,
Defendant cites no
nor
therein at 1566.
concur in
We
that assess-
any,
have
found
to the effect that one
speedy
ment of a
trial
applicable
claim
or more retrials because of errors commit
appellate process.
Whether or not
judges
ted
or prosecuting attorneys
delay may give
process
such a
rise
a due
resulting delay
and the
reaching finality
claim
applied
and the standards to be
(if indeed
thing)
provide
there is such a
can
such a determination need not be decided
speedy
basis for a valid
trial claim.
upon this record because the facts do not
guaranteed
trial,
Defendant is
perfect
not
invoke that issue.
only a fair trial. The retrials have been
sought by
granted
defendant and
by the
Defendant contends that
the Ten
courts in the effort
to assure a careful
nessee Death Penalty Statute is unconstitu
case,
capital
review and a fair trial in a
punishment.
tional as cruel and unusual
suggest
it is absurd to
that the actions of
rejected
We
that contention in State v.
prosecutor
the trial
under these
*5
Dicks,
(Tenn. 1981),
and a
give
delay
rise to
that en
number of later cases. Defendant also
titles
speedy
defendant to claim a
trial vio
says
electrocution,
that
the use of
when
lation.
legal
there are more humane
kill
forms of
addition,
In
there is no mandate from the
ing,
injection,
such as lethal
the
violates
Supreme
United States
delay
Court that
prohibition against
constitutional
cruel and
appellate process
the
delay
or
caused
punishment.
validity
unusual
hu
one or more retrials
subjected
must be
to manity
complaint
of that
should
ad
be
514,
the
of
tests Barker v. Wingo, 407 U.S.
Legislature.
dressed to the
This Court’s
(1972),
92 S.Ct.
There are other cases low the State show his conviction for right aggravated to speedy inapplicable a trial is assault on Bell as a appellate proceedings ag- state in- “previous” support because the conviction in
665
ad
complains about the
in T.C.A.
gravating circumstance defined
says
First he
exhibits.
39-2-203(i)(2) (previous
of a mission of several
conviction
§
One,
copy of the court’s
person).
a
felony involving violence to the
Exhibit
30, 1965, reflect
September
pend-
offense
minutes dated
The indictment for that
defendant for second
ing the conviction of
of the first trial but the
at the time
years,
of ten
degree murder and a sentence
prior to the resen-
conviction was obtained
complaint
stricken. His
should have been
tencing hearing.
Teague,
State
agreed nor
(Tenn.1984),
never
held that a was that
the “witness
S.W.2d
made
requested” to have the document
after the first trial but was
conviction obtained
testimony.
pre
is the
to her
It
resentencing hearing may be used
an exhibit
before a
witnesses,
judge, not
resentencing
rogative of the trial
previous
conviction at the
the introduction of
or disallow
hearing.
to allow
The record
documents into evidence.
erroneously contends
attorney
prosecuting
asked
shows that the
appeal
on the first
this
that in its
identifica
to have it marked for
the court
held the introduction of defendant’s
Court
transcript
marked. The
tion and it was so
this offense to be error. As
indictment for
Young,
Deputy
reflects that Mrs.
opinion,
in this
we held
stated heretofore
Clerk,
minute en
read the contents of the
for the of
proof
of that
indictment
presence of the
try
in the
into evidence
assault,
aggravated
returned
fense
District Attor
jury; and the failure
murder,
properly
days
few
before
for identification
ney to allow Exhibit One
theory that
admitted to
the State’s
to marked Exhibit One
evidence
be
to eliminate
defendant killed Junior Adams
beyond a reasonable doubt.
harmless error
against
him a
defendant at his
as witness
defend-
other exhibits about which
shooting Shirley
trial for
Bell. 653 S.W.2d
capias issued a few
complaint
complains were the
at 716. Defendant’s related
ant
that,
for the arrest
days
the murder
the State had not erred so as
before
growing
trial,
charges
out
this inter
defendant on the
necessitate a
Shirley Bell and the indict-
shooting of
im conviction would not have been available
conviction of defendant
and thus should
inadmissi ment and the
on Shir-
aggravated
assault
sequitur.
is a non
the offense
ble
*6
again
in error
asserts
ley Bell. Defendant
judge
says
Defendant
the trial
the first
hear-
that
reversed
denying
right
attempt
in
him the
to
erred
of the in-
ing
of the introduction
because
prospective jurors
two
who
rehabilitate
Shirley
The evidence
of
Bell.
dictment
opposed
penalty.
to the death
Wal
were
the
shooting
of
Bell and
the
unequivocal
stating
in
lace W. Larkins was
defendant,
the
and arrest of
indictment
conscientiously opposed
he
to the
that
to the
events in relation
timing of those
his
would
penalty
death
and that
views
and the conviction
Adams
murder of Junior
performance of his duties as
prevent the
fully developed
were
on that
indictment
interrogation
prospective ju
of
juror. The
testimony of witnesses.
through the direct
pages
Dockery covered nineteen
Terry
ror
capias and
if
conceded that the
Again,
it be
Although
gave equiv
he
transcript.
in the
technically inadmissi-
indictment were
the
first,
unequivocal
later he
ocal answers
ble,
surplus and harmless
they
mere
were
he could not vote the death
ly stated that
under the
doubt
beyond a reasonable
error
sign
impos
and would not
a verdict
penalty
of this trial.
ing
any circumstances.
the
it under
When
judge
trial
failed
says the
Dockery was
Defendant
judge
trial
announced that
in
juror
as thirteenth
excused,
perform his function
sought permis
defense counsel
jury’s verdict.
approve the
that he did not
questions,
additional
which
sion to ask two
judge
The trial
factually incorrect.
jurors
That is
was denied. We find both
were
while
from the bench
approved the verdict
properly
guidelines
excused under the
of
in the courtroom.
Witt,
jury
still
105 the
Wainwright v.
469 U.S.
approved
jury
the
(1985).
expressly
judge also
Defendant asserts that trial judge error in “speech” committed to the says question that jury after their verdict was rendered. De asking jury really was whether it history fendant it as a describes of case mandatory they return the that death personal and the opinions alleg court’s simply sup sentence. The record does not preclud es that he totally feels [defendant] port interpretation specific such an of the discovering ed from any juror misconduct question written submitted to the trial speech. as a result of Defendant obvi by the “If jury, jury to-wit: finds ously judge’s post-verdict refers to the trial that there are one or more explanation why of he did not admit Bur circumstances, mitigating and no circum roughs’ testimony alleged about Morton's stances, jury obligated is the under the law investiga bed confession of the penalty?” to return a death The trial Burroughs’ tion that followed revelation judge correctly upon portion focused judge explained that The trial confession. his instructions that contained the discharge to the he that was about to question to the answer submitted coverage newspaper that there be would i.e., him, obligated not they were Burroughs’ testimony put and he wanted to the death at least one return unless proper allay it into focus any so as to outweighed any circumstance might doubts have about the correct mitigating What this Court circumstances. ness of verdict. no their Defendant cites Johnson, in State said authority support complaint (Tenn.1985), preferable to a respect with completely lacking we find it to in merit. different from response was a context fours, claim, case;
Contrary to defendant’s record on all the instant but even require v. Johnson would not judge correctly a hold shows that the defined erred in degree required second murder as because the trial his re sponse jury’s question this case. State’s reliance defendant’s 1965 offense, issue. conviction is no merit to this There *7 See, e.g., (i)(2). circumstance Finally, that he defendant insists should Moore, (Tenn. State v. the third to a new trial because be entitled 1981). sentencing jury the actions of considered their says prior juries arriving erred in verdict. trial resentencing response question by oblique attack on the asked the This punish- retrial of jury during They procedure their that allows a deliberations. only prejudicial error occurred they “obligated” asked if were to return where ment prejudicial sentencing phase no penalty they the death found one or more at the and mitigat- during guilt phase circumstances and no error occurred by ing by jury made prompted advised remarks circumstances. judge’s post-verdict prosecuting counsel for after the trial defendant and the foreman attorney question, Burroughs’ inadmissible and defense coun- comments about merely expressed only testimony. sel wanted the court to instruct that The foreman perhaps they recognition, dis- juror’s must look the whole
667 comfort, my my dissenting opin- that had not heard all of the views as set out Dicks, Tenn., State v. guilt on the issue of or innocence ion in 615 S.W.2d evidence (1981). rely upon prior jury’s 126, had to verdict 132 jury prior and assume that “had done acknowledges job.”
their that jury pre- that a advised guilt jury had determined and that he vious nothing prior said the verdicts of punishment. juries on the issue of Defend- complaint ant’s is that the third prior juries jury rely did and such re- liance on “outside the record” was evidence Tennessee, Appellee, STATE State v. ruling in error under this Court’s Harrington, (Tenn.1981). S.W.2d PRIER, Appellant. Michael Steve Harrington held it was er Tennessee, Supreme Court of jury ror for the foreman to read selected at Nashville. passages jury during to the their Biblical of his deliberations belief Feb. imposed. In the death should be forming jury at this hear there had been a trial that guilt
resulted in a verdict of that had final was an established fact in the become necessary preliminary record and a instruc background tion to the as essential performance of their as a resen- duties tencing jury. This issue has no merit. carefully have considered all of the
We arguments additional made and found them to merit. Pur- be without
suant to T.C.A. 39-2-205 we have re- § the sentence of death in this case
viewed and are of the it neither disproportionate penal- nor excessive ty imposed in similar cases. is
The sentence of death affirmed and provided by carried law on will be out as day May, stayed unless the 18th by proper authority. adjudged Costs are
against defendant.
COOPER, HARBISON JJ., DROWOTA, concur. C.J., dissents, BROCK, separate see opinion.
BROCK, Justice, concurring in Chief part; dissenting part.
I concur in the of the Court all respects except constitutionality penalty. respect With to the consti-
tutionality I penalty, of the death adhere to