STATE of Tennessee, Appellee, v. David Allen BRIMMER, Appellant.
Supreme Court of Tennessee, at Knoxville.
Feb. 7, 1994.
Rehearing Denied May 2, 1994.
876 S.W.2d 75
J. Michael Clement, Clinton, J. Thomas Marshall, Dist. Public Defender, and Brock Mehler, Nashville, for appellant.
OPINION
O‘BRIEN, Justice.
Defendant was found guilty of the first degree premeditated homicide of Rodney Compton, on or about 22 October 1989. The indictment included three statutory aggravating circumstances: (1) The murder was committed while defendant was engaged in committing a robbery; (2) the murder was committed for the purpose of avoiding lawful arrest; (3) the murder was especially heinous, atrocious or cruel. The jury found one (1) statutory aggravating circumstance: the
The proof in this case shows that the victim, Rodney Compton, disappeared sometime after 6:30 p.m. on 22 October 1989. Compton had just returned from a cruise to the Bahamas and had failed to arrive, as planned, at his mother‘s home on the evening of his disappearance. Compton‘s body was discovered in a hayfield in rural Loudon County on 7 November 1989. He was dressed in the clothing he had worn when he returned from his trip on 22 October. Decomposition of the body prevented determination of the cause of death, but Compton‘s neck had been cut and the pathologist who had performed an autopsy on the body testified that suffocation and strangulation were potential causes of death.
On 3 February 1990, the defendant was arrested in Refugio, Texas, on charges unrelated to this case. He was driving Compton‘s pickup truck, in which officers found the victim‘s jacket and a pair of handcuffs. On 24 February 1990, the defendant confessed to law enforcement officers that he had killed Compton. He said that the victim had given him a ride in the truck on the evening of 22 October, and he admitted that he had intended to rob the victim at that time. The defendant claimed that, when the victim made sexual advances toward him, he told Compton he was a policeman and “arrested” and handcuffed him. The defendant said he had driven Compton to another location where he choked him to death. The defendant stated he then drove to Loudon County, where he disposed of the body. While being transported to Tennessee from Texas, the defendant also identified the park in Anderson County where he had killed the victim.
Other proof established that the defendant had been in Anderson County at the time Compton disappeared, purportedly to see an acquaintance, David Parten. It was also shown that, when the defendant was seen a few days after Compton‘s disappearance, he had in his possession not only the victim‘s truck but also the victim‘s jacket and several souvenirs Compton had purchased in the Bahamas.
Defendant has raised 13 separate issues, each of which are divided into multiple sub-issues. The first complaint is that his oral and written statements introduced into evidence were unlawfully obtained and admitted in violation of his constitutional rights.
At the conclusion of a motion to suppress his written and oral admissions, the trial judge took the matter under advisement and subsequently issued an order denying the motion in which he held that defendant was advised of his constitutional rights to remain silent and that he knowingly and voluntarily waived those rights. Based on the totality of the circumstances he overruled the motion to suppress the statements. He made certain findings of fact, stating in pertinent part, that, in conjunction with his previous criminal record, defendant had acquired experience in the procedures observed by law enforcement officers in soliciting an accused to give his statement. He found that the police took care to inform defendant of his rights and took care to see that he understood them. He further found defendant had signed four (4) waivers, although some were signed with false names. The court did not find defendant to be a credible witness.
Defendant makes the same charges here. We are constrained to say that defendant‘s brief is very difficult to follow due to innuendo and incomplete citations to the law in a seeming effort to convey the impression that the citations are authority for the point to be made. His claim that he was denied the right to counsel and the claims that he was held for 22 days in solitary confinement and refused medical attention when requested were refuted by the law enforcement officers involved. There is no evidence in the record, other than being kept apart from the other inmates, that defendant was subjected to any other potentially coercive treatment. He says he asked for a doctor, but never stated that he was subject to any need for medical attention. To bolster his argument, defendant says the trial court‘s ultimate conclusion that his confession was voluntary was made without the benefit of hearing the testimony of Dr. Eric Engum during the jury-out sentencing hearing. No effort was made at the suppression hearing to present the testimony
The Connelly case stands for the proposition that coercive police activity is a necessary predicate to finding that a confession is not voluntary within the meaning of the due process clause and that the State need prove waiver of Miranda rights only by a preponderance of the evidence. In stating those principles the Court reminds us that “[T]he central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence,” citing Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986), and further comments that while the exclusion of evidence may be necessary to protect constitutional guarantees, both the necessity for the collateral inquiry and the exclusion of evidence deflect a criminal trial from its basic purpose. The trial court in this case properly applied the “totality of the circumstances” rule and there was no violation of either federal or state constitutional rights in the admission of defendant‘s oral and written statements, including the oral statement made to the police officer who returned him from Texas to Tennessee.
Equally without merit is defendant‘s insistence that the exclusion of Dr. Engum‘s testimony at the guilt phase of the trial violated his constitutional right to present a defense. He cites Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986), for the statement that “evidence surrounding the making of a confession bears on its credibility as well as its voluntariness.” The exclusion of this evidence does not rise to a deprivation of defendant‘s right to present a defense under Crane, supra. In that case the defendant was completely foreclosed from offering any evidence at all concerning the circumstances of his confession. Dr. Engum‘s testimony was to be, that after listening to a 30-minute tape of defendant‘s interrogation by police officers when he confessed to the homicide, he believed with a reasonable degree of certainty that defendant was an individual who very plausibly could have been coerced. The trial judge denied the admission of this testimony to the jury. He ruled that the information elicited by the doctor from the tape was only a part of the interrogation procedure in which defendant confessed. He found that the basis for the doctor‘s opinion was not sufficiently trustworthy to go to the jury on the issue as to who and what may have influenced defendant‘s mental state at the time that he gave his confession. He further ruled that the doctor‘s testimony would be available in the sentencing phase of the proceedings in the event defendant was found guilty. Defendant was not deprived in any manner from showing the physical and psychological environment that yielded his confession. It is well within the authority of States to exclude evidence through the application of evidentiary rules that themselves serve the interest of fairness and reliability — even if the defendant would prefer to see that evidence admitted. Crane, supra, 476 U.S. at 689, 106 S.Ct. at 2146. A trial court‘s decision to admit or exclude expert testimony cannot be disturbed on appeal unless there is a clear showing that the trial court has abused its discretion. State v. Hawk, 688 S.W.2d 467, 472 (Tenn.Cr.App.1985). We find no such abuse in this case.
Defendant says it was a denial of his right to due process and that he was prejudiced by the erroneous admission of testimony and argument that he had “killed before.” A review of that part of the proceedings where this testimony occurred is essential to a resolution of this issue. While describing the circumstances of defendant‘s confession, the sheriff of Refugio County, Texas, where defendant had been apprehended, testified
Defendant also complained of testimony of Sheriff Hodges relating to his confession which occurred after they had taken a lunch break. The sheriff testified the interview with defendant continued over “probably two (2) to three (3) hours, because we did break for lunch and let him compose himself a little bit. He was pretty emotional.” The sheriff testified that after the lunch break defendant was no longer crying and it got a lot better. Initially, after he came back with the jailer, he started answering the questions. Sheriff Hodges related that “the more we got into it, you know, it was catching up with him and, like I say, he was just unloading and he had this burden that was bothering him a lot about this murder and some others.”
A further protest was to the State Attorney‘s final argument when she quoted Sheriff Hodges’ comment, “Son, you killed before.”
Our investigation of these complaints indicates initially that the issue was waived. There was no contemporaneous objection when any of these allegedly objectionable remarks were made. Defendant did not request the Court to instruct the jury to disregard comments about other killings. The record indicates that Sheriff Hodges was not being responsive to the State‘s questions when the reference to prior killings was made. There is no indication the State intentionally elicited these remarks. Moreover, this issue was not raised on the motion for new trial. Certainly it would have been better if none of the remarks had been made; however, defendant cannot on one hand complain that in excluding Dr. Engum‘s testimony defendant was stripped of the power to describe to the jury the circumstances that prompted his confession and, on the other, complain about the admission of evidence which clearly demonstrated his mental condition as a significant factor in determination of voluntariness. Under the circumstances and evidence in this case we do not think these incidents constitute reversible error. We note that defense counsel as well as the Attorney General made inquiry with regard to the circumstances under which the confession was made.
Defendant contends the evidence adduced at trial was insufficient to support a finding by a rational trier of fact that the victim was killed intentionally, with malice, deliberation and premeditation. These contentions are not sustained by the record which clearly shows that defendant handcuffed the victim to a tree and choked him to death with a wire and slipknot. Defendant said first, that he did not intend to kill the victim, and second, that he committed the homicide because he became angry when the victim confessed he had sexually abused children at the school where he worked. There is evidence in the record to the effect that defendant came to Anderson County with the intent to rob and kill David Parten. He was armed with a gun and a knife. Fortuitous circumstances thwarted this course of action and brought the ultimate victim into defendant‘s path. The jury could reasonably assume that a theft and killing had been defendant‘s intent from the beginning. Only the victim changed. The substitution of a garrote as the instrument of death did not diminish the intent, the premeditation, or the deliberate homicide.
Defendant raises inferences of conflict in the evidence and testimony which, he claims, justified a directed verdict. We think not. The trial judge submitted the case to the jury and approved their verdict, thus accrediting the testimony of the State‘s witnesses and resolving all conflicts in favor of the State. Under the evidence in this record any
We note that the trial court instructed the jury that “intent or desire to kill may be conceived and deliberately formed in an instant.” This instruction, which was in accord with the case law at the time it was given, has been discussed at length in the recent case of State v. Brown, 836 S.W.2d 530 (Tenn.1992). What the Court said in Brown was, “[It] is now abundantly clear that the deliberation necessary to establish first degree murder cannot be formed in an instant. It requires proof, as the sentencing commission comment to
Defendant says the trial court erred by allowing certain irrelevant, prejudicial and misleading photographs of the victim to be introduced into evidence. He says the photographs which were entered into evidence were irrelevant, cumulative, and a waste of time. He cites the appropriate rules of evidence and State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978) as authority. Several photographs are specifically objected to. The first is Exhibit 6 which is a picture of the victim during his lifetime wearing a watch similar to that found on his dead body. The watch also was introduced into evidence. While the relevance of this photograph is minimal, it certainly did not prejudice the defendant in any manner. The second photograph depicts the body of the victim in a hayfield where it was found. The picture was offered in evidence to establish the time of death by showing the clothing he was wearing at the time of his murder. The probative value of this Exhibit was not outweighed by any of the factors enumerated in Evidence Rule 403. We are of the opinion it was properly admitted. There is some suggestion that there was an objection to the admission of Exhibits numbered 18.3 through 18.6. The record shows that the Court, in referring to collective Exhibit 18, denied the admission of these exhibits to the jury in any form. We find the issue without merit.
Defendant has made a complaint that the trial court erred by allowing the State to violate a preliminary order requiring counsel to approach the bench prior to introducing any photographs of the victim‘s body. This complaint is totally without merit. The record contains no evidence of defendant‘s allegations of violation of the court‘s ruling by the State‘s counsel. The trial court expressly found there was no breach of its ruling in spirit or by communications to the jury.
We find defendant‘s complaints in reference to the trial court‘s instructions to the jury to be without merit. Defendant asserts that the trial judge erred in not instructing the jury that aggravating circumstances should outweigh mitigating circumstances beyond a reasonable doubt. Defendant refers to
We initially point out that the defendant submitted a requested instruction as follows:
Normally, defendant‘s failure to take any action to call this issue to the trial court‘s attention and his active procurement of an instruction he now claims is erroneous would preclude review on appeal. See
This Court has previously held that there is no constitutional requirement that the State prove that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt before the death penalty may be imposed. See State v. Payne, 791 S.W.2d 10, 20-21 (Tenn.1990); State v. Boyd, 797 S.W.2d 589, 597 (Tenn.1990). The defendant‘s right to a “reasonable doubt” charge therefore must depend on the 1989 Act. Thus, the question presented is whether the General Assembly intended that the amendments to the capital sentencing statute apply to cases arising before but tried after the effective date of amendment. Most statutes are presumed to operate prospectively unless the legislature indicates a contrary intention. Cates v. T.I.M.E. DC, Inc., 513 S.W.2d 508, 510 (Tenn.1974); Morford v. Yong Kyun Cho, 732 S.W.2d 617, 620 (Tenn.App.1987); see also United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987); State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991). We have found no retroactivity clause either specifically or expressly applicable to the 1989 amendments to the capital sentencing statute.
Repealed or amended laws — Application in prosecution for offense. — Whenever any penal statute or penal legislative act of the state is repealed or amended by a subsequent legislative act, any offense, as defined by the statute or act being repealed or amended, committed while such statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense. Except as provided under the provisions of
§ 40-35-117 , in the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act. [Acts 1989, ch. 591, § 1.] (Emphasis supplied.)
Defendant says he was prejudiced by failure to instruct mitigating circumstances raised by the evidence. He refers specifically to
Defendant insists the jury was inadequately instructed as to the meaning and function of mitigating circumstances. He says the trial judge did not define the term mitigating beyond the reference to any aspect of defendant‘s character or record, or “any aspect of any circumstances of the offense favorable to the defendant which is supported by the evidence.” The trial judge followed the statute in delivering his instructions. Defendant was allowed to introduce such proof as he saw fit in mitigation. We are satisfied that the instruction was sufficient and appropriate. See State v. Bell, 745 S.W.2d 858, 864 (Tenn.1988).
The trial judge instructed the jury that they should have no sympathy or prejudice or allow anything but the law and the evidence to have any influence upon them in determining their verdict. Defendant avers that this instruction prevented the jury from considering and giving effect to his evidence in mitigation. Defendant takes a negative approach to our rejection of a similar complaint in State v. Boyd, supra, in which the Court cited from Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), inter alia, “it is no doubt constitutionally permissible, but not constitutionally required, see Gregg v. Georgia, 428 U.S. 153, 189-195, 96 S.Ct. 2909, 2932-2935, 49 L.Ed.2d 859 (1976), ... for the State to insist that ‘the individualized assessment of the appropriateness of the death penalty be [a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence],‘” citing Justice O‘Connor, concurring, in California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987). The issue is without merit.
Defendant says there is a reasonable likelihood that the jury understood the trial court‘s instructions as precluding them from considering any mitigating circumstances unless they unanimously agreed on its existence. We do not agree. As we noted in State v. Bates, 804 S.W.2d 868 (Tenn.1991), cert. denied Id., 112 S.Ct. 131, 116 L.Ed.2d 98 (10/7/91), there is nothing in the Tennessee statutes, in the instructions given to the jury, or in the verdict form submitted to the jury, likely to lead any juror to believe that he or she was precluded from considering mitigating circumstances unless all jurors agreed that such circumstance existed. In this instance, too, no objection was raised at trial and the issue was not raised in the motion for new trial.
Defendant states a number of issues, or sub-issues, involving the aggravating circumstance found in this case, (i)(7) (the murder occurred during a robbery) beginning with the charge that the trial court committed reversible error by failing to instruct the elements of robbery at the penalty phase. It is true that he did not. This was error. However, the Court previously defined robbery in its guilt phase instructions on felony murder. The error was harmless. State v. Wright, 756 S.W.2d 669, 675 (Tenn.1988).
Defendant questions whether the evidence is sufficient to support the aggravating circumstance of murder in the perpetration of robbery. Citing State v. Terry, 813 S.W.2d 420, 423 (Tenn.1991), he says there is no proof of motivational relationship between the homicide and the felony. It is argued that the victim‘s truck and other property were taken only as an afterthought to the murder, which occurred because of defendant‘s inappropriate intense anger and lack of control. The evidence clearly bears out
Defendant returns to plow the ground of aggravating and mitigating circumstances, arguing that the evidence does not support the jury‘s finding. There is no doubt that the evidence clearly supported the jury‘s verdict. The jurors were justified in rejecting his theory of the homicide: that he killed the victim in angry rage. The jury was not required to accept his version of the events.
Defendant argues that the sentence of death is excessive and disproportionate to the penalty imposed in similar cases.
Defendant says the homicide was not in furtherance of the robbery but was a separate, distinct and independent event produced by his mental disorder. Dr. Eric Engum testified to the background and psychological impairments of the defendant based on his early childhood background and records from earlier mental examinations. Dr. Engum diagnosed the defendant to be suffering from borderline personality disorder, a condition characterized by impulsive and unpredictable behavior, emotional withdrawal, marked shifts in behavior and attitude, intense anger, suicidal gestures, and the inability to maintain any kind of enduring relationship with others. He opined that the defendant adjusted well to institutionalization, where there was external control. He was not aggressive or violent in such an environment and only had difficulties when released.
The State presented Dr. Samuel Craddock, a clinical psychologist at the Middle Tennessee Mental Health Institute, who had observed the defendant for over two months. Dr. Craddock described the defendant as cooperative for most part during evaluation
Defendant cites a number of cases in which the death sentence was based on the same aggravating circumstance involved in this case. He argues there is no indication in any of these that the defendant presented evidence of significant psychological impairment stemming from abuse and neglect when they were children. This has become a not uncommon defense in cases of this nature.3 It is a defense to which the trial court and jury must give due consideration and one which this Court must scrutinize carefully in carrying out a proportionality review. These precautions were observed in this case. We find that the sentence of death was not imposed arbitrarily. The evidence supports the jury‘s finding that the murder was committed while defendant was engaged in committing a robbery and the absence of any mitigating circumstance sufficiently substantial to outweigh the aggravating circumstance found. Having considered the facts and circumstances of the offense, as well the background and nature of defendant, we hold that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases.
Defendant says the prosecution‘s misleading arguments in the penalty phase of the case undermined the reliability of the jury‘s sentencing determination.
The defendant raises these issues for the first time in this Court. No contemporaneous objections were made at trial nor were the issues raised on the motion for new trial. Nonetheless, we have examined the errors charged and find them to be without merit.
Defendant says the prosecution argument shifted the burden of proof. The prosecutor stated during argument that in order to impose a life sentence, if the jury found an aggravating circumstance had been proved beyond a reasonable doubt, the jury would have to find that mitigating circumstances outweighed aggravating circumstances. This was an accurate statement of the law in effect at the time of the trial of this case. This argument did not shift the burden of proof. See State v. Boyd, supra; State v. Cauthern, 778 S.W.2d 39, 47 (Tenn.1989).
It is complained the State‘s argument “that there were no mitigating circumstances in the case and that Dr. Engum‘s testimony concerning the defendant should be entitled little weight” limited the jury‘s consideration of mitigating factors. This argument did no more than set out the State‘s interpretation of the proof.
Defendant says here that the prosecution‘s argument purposely confused the issue of culpability with criminal responsibility. The State argued to the jury, “There comes a time when you become responsible for your actions. I‘m going to talk about responsibility. There comes a time where you just can‘t deny the responsibility as an adult. David Brimmer is a human being who must accept responsibility for his actions.” It is defendant‘s position that he became criminally responsible for his actions when the jury convicted him. In the penalty phase the jury was required to make a moral inquiry into personal culpability, and to give individualized consideration to the defendant‘s background and character in making the determination that death was the appropriate penalty. He says the prosecution arguments could easily have misled the jury to believe that unless the death penalty was imposed defendant was not being held responsible for his behavior.
Our legal dictionary defines “culpable,” in the criminal sense, to be “involving the breach of a legal duty or the commission of a fault,” while “responsible” is defined in that sense as being “legally accountable or answerable.” Black‘s Law Dictionary 379, 312 (6th Ed.1990). It is doubtful that the jury made the difference in their interpretation of
The defendant next argues that the State Attorney exceeded the bounds of closing argument by stating the case should not be decided on the basis of sympathy for the defendant. We have discussed this issue heretofore. This comment in the State‘s argument was closely followed by the admonition to the jury to decide the case on the basis of the law and facts. This was appropriate argument.
Additionally, defendant complains that the prosecutor improperly diverted the jury‘s attention away from the defendant by invoking the memory of the victim. Defendant concedes that Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), upon which he relies, has been overruled. He suggests that we should find the argument in violation of Article I, Secs. 8 and 16 of the Tennessee Constitution. We decline that invitation. We consider the law on this issue to be well stated in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
Defendant says the selection of the defendant as a candidate for the death penalty was arbitrary and capricious and resulted from an abuse of prosecutorial discretion. This issue is raised and presented for the first time in this Court. There is nothing in the record to support the facts on which the defendant relies. This argument is basically an attack on the “unlimited discretion vested in the prosecutor” as a violation of the principles stated in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This argument has been rejected by the United States Supreme Court. In Gregg v. Georgia, 428 U.S. 153, 198-99, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976), the Court specifically noted that opportunities for discretionary action which inhere in processing of a murder case ..., including authority of the state prosecutor to select those persons whom he wishes to prosecute for a capital offense, ... do not render the death penalty unconstitutional on the theory that the opportunities for discretionary action render imposition of the death penalty arbitrary or freakish. We apply that rule in this case.
Defendant makes a broad based attack on the constitutionality of the Tennessee Death Penalty Statute. The principal arguments made on this issue are identical to or similar to issues previously addressed by the Court. The majority of these complaints are not personal to the defendant and have no effect on the outcome of this case. He makes reference to the aggravating circumstances set forth in
Defendant avers that the Tennessee Death Penalty Statute is imposed capriciously and arbitrarily because defendants may not address issues of parole eligibility, costs of
He urges that this Court reconsider past decisions on the issue of whether or not the jury should be told the effect of its failure to agree on a verdict. We are satisfied that our past decisions on this issue meet both State and Federal muster. See State v. Barber, 753 S.W.2d 659, 670-671 (Tenn.1988).
He argues the jury is instructed that it must agree unanimously in order to impose a life sentence and is prohibited from being told the effect of a non-unanimous verdict. He suggests this rule violates the principle of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). These cases stand for the principle that any requirement that the jury must find a mitigating circumstance unanimously before it can be considered violates the Eighth Amendment. A requirement of a unanimous verdict does not violate these principles. As this Court said in State v. King, 718 S.W.2d 241, 249 (Tenn.1986), “[t]here is no way a jury can impose a sentence if it is not unanimous in its decision.”
Defendant argues a number of issues which have long been settled by this Court. He says there is reasonable likelihood that jurors believe they are required to unanimously agree as to the existence of mitigating circumstances because of the failure to instruct on the meaning and function of mitigating circumstances. We have previously responded to this issue in this opinion. He argues the jury is not required to make the ultimate determination that death is the appropriate penalty. This issue has been considered and rejected in numerous cases. See State v. Black, supra.
The Constitution does not require and the Court does not approve the uniform standards or procedures for qualifying juries in capital cases which defendant requests. Defendant raises a variety of generalized issues which do not merit response because they have previously been considered in this opinion or have been decided adversely to defendant‘s position heretofore.5 Defendant deprecates appellate review of capital sentences in Tennessee for several reasons. He says there is no requirement for written findings concerning mitigating circumstances. This argument was rejected in State v. Melson, 638 S.W.2d 342, 368 (Tenn.1982). He says information relied upon for comparative review is inadequate and incomplete. His particular complaint is that Rule 12 reports filed by the trial judge do not contain sufficient information for determination of whether a death sentence is excessive or disproportionate. The simple answer to this complaint is that use of the trial judge‘s Rule 12 report by this Court is only one facet of the Court‘s appellate review.
Finally, defendant has raised an issue of first impression alleging in part that the death penalty per se and as applied violates Article I, Sec. 32 of the Tennessee Constitution. Defendant hypothesizes that Article I, Sec. 32 was meant to proscribe “government-sponsored vengeance against those the government considered outside its law.” He then argues that in light of a contemporary standard of humanity and the main purpose of the death penalty (retribution), the death penalty is therefore inhumane and a form of “government-sponsored vengeance.” Article I, Sec. 32 provides in its entirety: “That the erection of safe and comfortable prisons, the inspection of prisons, and the humane treatment of prisoners, shall be provided for.”
We preface our consideration of this issue with the verity that the federal government has, by and large, preempted both the operation and construction of the prison system in the State of Tennessee to the extent that its supervision has been under federal control and the State has had very little to say about the treatment of prisoners in any respect. We do not believe the treatment of prisoners in this State falls outside the parameters described by defendant, which must be drawn in accordance with “evolving standards of decency that mark the progress of a maturing society.”
Insofar as the issue of whether or not the death penalty constitutes cruel and unusual punishment is concerned, this Court has repeatedly held that this State is not prohibited from imposing the death penalty in the manner set forth in conformity with the penal statutes, by the restraints imposed by the United States Constitution, or by any of the provisions of the Tennessee Constitution previously considered. We hold that Article I, Sec. 32 does not add any additional restriction.
In accordance with the mandate of
DROWOTA and ANDERSON, JJ., concur.
REID, C.J., files separate concurring and dissenting opinion.
DAUGHTREY, J., files opinion concurring in part and dissenting in part.
REID, Chief Justice, concurring and dissenting.
I concur with the conclusion reached by the majority that the record supports the conviction of premeditated first degree murder.
I join Justice Daughtrey‘s dissent that the failure of the trial court to charge mitigating circumstance (j)(8) requires a re-sentencing hearing.
The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a
defense to the crime but which substantially affected his judgment.
A clinical psychologist, who had examined the defendant and studied his records from earlier mental examinations, diagnosed the defendant as suffering from borderline personality disorder, a condition characterized by impulsive and unpredictable behavior, emotional withdrawal, marked shifts in behavior and attitude, intense anger, suicidal gestures, and the inability to maintain any kind of enduring relationship with others. After having been abandoned as a small child, the defendant was placed with various foster families, until, at the age of 13, he was placed in an institution for children with behavioral problems, where he remained for four years. The records of that institution describe the defendant as suffering “burned child syndrome,” a condition characterized by feelings of fear and internal anger generated by parental abandonment. Later, while hospitalized in the psychiatric unit of a Texas hospital, the defendant was diagnosed as having “factitious disorder,” a condition where the sufferer seeks to play the role of patient because of the absence of any emotional connections with others. While incarcerated awaiting trial, he was sent to the Lakeshore Mental Health Center in Knoxville because of suicidal behavior. This evidence was proof that the defendant suffered a mental disease.
However, the majority opinion approves the trial court‘s refusal to charge mitigating circumstance (j)(8) because there was no proof that, as a result of the mental disease, the defendant could not conform his conduct to the requirements of the law. Of course, proof that the killing was the result of a mental disease would be proof of insanity and the defendant would be entitled to a verdict of not guilty by reason of insanity.
Insanity is a defense to prosecution if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the person‘s conduct or to conform that conduct to the requirements of law.
In all criminal cases in which the trial judge charges the jury on the law relating to the defense of insanity, the judge shall also charge the jury that if it should find the defendant to be not guilty by reason of insanity that it shall so state in its verdict.
I would remand for re-sentencing, because the failure to charge mitigating circumstance (j)(8) was reversible error.
DAUGHTREY, Justice, concurring in part and dissenting in part.
The defendant was convicted of the premeditated murder of Rodney Compton and was sentenced to death based on a single aggravating circumstance, the fact that he killed the victim while committing robbery. Most of the alleged trial errors that serve as the basis for this appeal are, as the majority concludes, meritless challenges to the guilt and sentencing phases of his trial. One, however, deserves the Court‘s careful attention. During the sentencing hearing the trial court refused to instruct the jury that it was permitted to consider as mitigating evidence any mental disease or defect that substantially impaired Brimmer‘s ability to appreciate the wrongfulness of his conduct or to conform his conduct to the law. See
It is fair to conclude, as the majority does, that the proof at trial was sufficient to convict Brimmer of premeditated murder. The majority opinion, however, fails to summarize that evidence. The record shows that the defendant, an unemployed drifter, was stopped in February of 1990 for speeding in
The defendant admitted the killing, but denied planning the murder. Instead, he said that Compton offered him a ride and insisted that he accepted with the intent only to rob Compton. Brimmer stated that Compton made sexual advances toward him, and that the defendant then handcuffed Compton, intending to leave him unharmed in a park. According to the defendant, however, when Compton began to tell the defendant about his sexual abuse of children, the defendant grew angry and choked Compton to death. Then, frightened that someone might have seen him at the site of the murder, he drove Compton‘s body to the field where it was later discovered.
Other evidence, however, supported the state‘s theory that the defendant had planned both the robbery and the murder. Ann Marie Hill testified that the defendant had lived with her in Alabama before the murder, but that he was known to her by a different name. Ms. Hill testified that Brimmer told her before the murder that he intended to pick up his Porsche in Tennessee. She testified that she drove Brimmer part of the way to Tennessee on the afternoon of October 21, 1989, and that he carried a gun and a large knife on the trip. David Parten, the defendant‘s former cellmate, testified that he previously had told the defendant about a Porsche that Parten owned, and that the1 defendant had arranged to meet Parten in Oak Ridge around October 22. Parten testified that he met Brimmer once in Oak Ridge, but decided not to meet him again because he felt uneasy about the situation. From the testimony of these two witnesses, the jury could have inferred that Brimmer drove to Tennessee with the intent to steal Parten‘s car and that he resorted to the robbery and murder of Compton only after Parten failed to show up.
In addition to this testimony, the victim‘s mother and brother stated that on October 22, Compton had been returning home from a vacation to celebrate his mother‘s birthday and thus, impliedly, would not have been searching for a sexual encounter. Additional evidence indicating that Brimmer gave false names to everyone he met and repeatedly lied about his background weakened his credibility and diminished the likelihood that his story was true. The evidence was sufficient for the jury to have found him guilty of premeditated murder.
Despite the sufficiency of the evidence, the Court should not overlook the trial court‘s failure to instruct the jury, in accordance with
[t]he capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment.
During the sentencing hearing, Brimmer presented the testimony of Dr. Eric Engum, a clinical psychologist, who concluded that the defendant was suffering from a borderline personality disorder marked by sudden changes in behavior, intense anger, suicidal attempts, and the inability to maintain relationships. Dr. Engum testified that between 500,000 and two million people in the United
Although the defendant requested this instruction at trial, he failed to present the issue of the denial of the instruction in his motion for a new trial. On appeals as of right,
[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in ... jury instructions granted or refused, ... unless the same was specifically stated in a motion for a new trial.
Nevertheless,
[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial ... where necessary to do substantial justice.
The trial court plainly erred by refusing to instruct the jury on a matter that is indisputably fundamental in a capital case — the jury‘s consideration of the mitigating evidence. The capital sentencing statute in effect at the time of Brimmer‘s offense provided that “the trial judge shall include in his instructions for the jury to weigh and consider any mitigating circumstance ... which may be raised by the evidence....”
In my judgment, the only appropriate remedy for this error is a remand of this case to the trial court for resentencing.
ORDER ON PETITION TO REHEAR
Filed May 2, 1994.
Defendant has filed a respectful petition to rehear which the Court has considered and finds that the petition does not contain new material or argument which warrants reconsideration.
The petition to rehear is denied.
REID, C.J., and DROWOTA and ANDERSON, JJ., concur.
DAUGHTREY, J., not participating.
Rodney Keith INGRAM, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY and Union Carbide Corporation, Defendants-Appellees.
Supreme Court of Tennessee, at Knoxville.
March 21, 1994.
Rehearing Denied May 2, 1994.