*1 Plaintiff-Appellee, Tennessee, STATE CAZES, Defendant-
Victor James
Appellant. Tennessee,
Supreme Court
at Jackson.
Feb. 1994. April
Rehearing Denied
256 *4 Ball, Duncan, Dwight Memphis,
James V. defendant-appellant. for Burson, Atty. Report- Charles Gen. and W. er, Feirman, Gen., Merrilyn Atty. Asst. Nashville, Jr., Beasley, Asst. James C. Dist. Gen., Atty. Memphis, plaintiff-appellee. for OPINION ANDERSON, Judge. case, defendant, this Victor Cazes, first-degree was convicted of
James
felony
perpetration
rape,
first-degree burglary.
aggravated rape, and
sentencing hearing,
jury
In the
found
aggravating circum-
(1)
felony murder
invalid
circumstances:
aggravating
three
ease is
in this
convicted of
consideration
previously
the defendant was
stance
(2)
felonies;
doubt.
beyond
more violent
a reasonable
one or
error
harmless
atrocious,
heinous,
therefore,
murder was
sen-
We,
the defendant’s
affirm
depravity
torture or
in that it involved
cruel
tence of death.
(3)
mind;
murder was com-
engaged in
mitted while
BACKGROUND
FACTUAL
felony.
Ann.
39-
committing a
Tenn.Code
(1982).1
(5),
203(i)(2),
2—
guilt
proof introduced
The State’s
mitigating circum-
were no
found that there
Sunday
that on
phase of trial demonstrated
outweigh
sufficiently
substantial
stances
Gladys
body
morning, April
and sentenced
circumstances
alone,
Skinner,
who lived
an older woman3
by electrocution. The
to death
Frayser area of
in the
found in her home
twenty-five
sentenced to
defendant was also
alive late
had last been seen
Memphis. She
respectively, for the
years
years,
six
who
a friend
Saturday night
Ben
burglary.
rape
first-degree
aggravated
game. After
from a card
brought her home
numerous
appeal, the defendant raises
On
make sure
checking
house to
Ms. Skinner’s
alleged
review which involve
issues for our
secure,” Harris left
everything
was “safe
*5
guilt and
occurring during both the
errors
12:10 a.m.
around
trial.
have careful-
phases of
telephone
morning, because her
as
The next
ly considered the defendant’s contentions
called, Gladys
occurring during
guilt phase
they
Skin-
busy
each time
errors
was
that none have merit. We
to her
daughter
grandson
and have decided
went
ner’s
therefore,
arrived,
the defendant’s convictions.
they
affirm
on her. When
house to check
a front window screen
they noticed that
occurring during
alleged errors
As to the
broken,
removed,
the window was
been
only
sentencing phase, we conclude that
blinds, and
on the window
that blood was
application
aggra-
one has merit —that
locked.
the house were
the doors to
forth in Tenn.Code
vating circumstance set
neighbor
entered
grandson
The
2—203(i)(7),
§
the murder occurred
Ann.
39—
and found
through the front window
engaged in commit- house
while the defendant was
body lying
some
felony,
Gladys
That is so because it
beneath
ting a
is invalid.
Skinner’s
floor,
essentially duplicates
of the of-
the elements
between
on the bedroom
bedcovers
first-degree felony murder and does
fense of
next to the bed
wall. The wall
bed and the
death-eligible
population
not narrow the
several
blood as were
spattered
was
defendants,
felony
required
as
of an
lay
on the
from the wall that
broken
pictures
Tennes-
aggravating circumstance under the
the floor and
Blood also stained
floor.
see and United States Constitutions.2
While the bedroom
fitted sheet on the bed.
ransacked, nothing of value was
record,
had been
carefully reviewing the
how-
After
ever,
the house.
missing
from
conclude that the submission
we
of,
2—203(i)
or was
accomplice
the commission
§
Tenn.Code
[now
1.Tenn.Code Ann. 39—
commit,
(1991)3
fleeing after
penalty
attempting
or was
death
Ann.
39-13-204©
—No
commit,
finding,
attempting
any
upon
committing
first
imposed
a unanimous
or
shall be
but
indicated,
arson,
murder,
robbery, burglary,
rape,
or
degree
of the existence of one
as heretofore
circumstances,
statutory aggravating
kidnapping,
piracy,
unlaw-
larceny,
more of
aircraft
or
following:
discharging
limited to the
throwing, placing
which shall be
of a de-
ful
device or bomb....
structive
(2)
previously convicted
defendant was
The
felonies,
present
than the
of one or more
other
Middlebrooks,
pered” The defen- PART I. people fought he because other dant said that him on himself. would tease when he wet ERRORS GUILT PHASE —TRIAL grade, being arrested for the seventh after Sufficiency the Proof A. jail cell. truancy, defendant set fire to his psychiatric He underwent a examination argues the evi- first The defendant school, fights was sent to reform where jury’s support dence is insufficient After his release from reform continued. therefore, rape insufficient verdict of school, He has the defendant married twice. during the support of murder a verdict marriage. The one child from his second rape, because the victim was perpetration of *7 wage for a substantial defendant had worked penetration. at the time of dead Louisiana, in a de- as a welder brother “hard-working man.” The scribed him as a that a It is well-established began drinking after testified he verdict, by judge, defendant accred approved the trial using and admitted various his first divorce testimony the witnesses for of its the flying rages. drugs and into in favor of the all conflicts and resolves State state, pre theory and removes itself, testi- to the crime the defendant As v. sumption innocence. State of 1988, 23, Saturday night, April fied that on (Tenn.1992). the suffi Where S.W.2d way” on to [his] he was “full of it” and “well chal convicting is ciency of the evidence he left the cookout being drunk when appellate question for an lenged, the relevant leaving the home. After Michael Lucas’s whether, viewing after the evidence court is cookout, a of Jim Bean on he drank bottle State, any to the light most favorable in the totally “got drunk.” way to a where he bar fact could have found trier of rational nothing more stated that he remembered He beyond a reasonable doubt. guilty defendant night. about the Appellate Procedure Rule of Tennessee Nichols, psychologist, a clinical Wyatt Dr. 13(e); Virginia, Jackson compe- defendant was that while the testified (1979). L.Ed.2d 560 S.Ct. insane, legally not to stand trial and tent testified that examiner The medical signs psychological indicate there were vagina and anus indicated specifically men- dilation Dr. Nichols problems. death, penetration approach occurred at the time of tion or the defense to the bench death, routinely, within a of minutes of or short- repetitive questions matter or to ask ly Moreover, after death. jurors. prospective instructing calling defense counsel to refrain from a Brobeck, Court, in This State v. juror prospective by her en- first name was (Tenn.1988), 830-832 that a held defen- tirely proper. The record shows no bias was guilty aggravated rape dant is when the against or his counsel shown that, proof through shows use of force or judge. the trial weapon, pen- coercion with a unlawful sexual etration occurs at the time of death or short- Finally, support the record does not
ly Viewing in thereafter. the evidence judge the defendant’s claim that the trial did State, light most favorable to the we con- appreciate heightened process not due clude that a rational trier of fact could have applicable capital examples in cases. As rape beyond found the elements of the judicial insensitivity, points doubt. reasonable judge occasions when the trial admonished also find the evidence sufficient same, defense counsel that all trials were the perpetration establish murder in the otherwise, capital require that an rape. may entirely A conviction be based go attorney prepared to trial on the circumstantial evidence “where facts are ‘so date, appropriate “press busi clearly interwoven and connected that good granting ness” is cause for finger guilt pointed unerringly is ” setting continuance. In another the state defendant and the defendant alone.’ State capital ment that a trial is from a no different (Tenn.1993). Howell, surely misdemeanor trial is insensitive and Here, the facts established circumstantial inaccurate, heightened in view of the reliabili unerringly point finger guilt evidence ty required gravity and the of the ultimate at the defendant alone. penalty capital cases. Taken the con used, however, text these and other com Impartiality Judge B. of Trial judge ments the trial do not demonstrate The defendant next insists that the trial requirements a mindset so indifferent to the judge displayed hostility against and bias Eighth deny Amendment as him and his counsel as well as an indifference defendant a fair trial. heightened process standards of due applicable in a ease. C. Motion for Continuance It is well-established that a trial judge controlling has broad discretion charges The defendant that the trial trial, course and conduct of the and that by denying court erred his motions for a discretion, exercising that he or she must be request expert continuance and services. any might express thought careful not to history representation of defendant’s judge lead the to infer that the *8 Shelby County shows that Public Defend- against favor of or the defendant a crimi originally appointed repre- to er’s Office was 526, Caughron, nal trial. State v. 855 S.W.2d A sent him November 1989. trial date (Tenn.1993). 1990, February was first set for but at the example judge’s As an of the trial request, defendant’s the case was continued bias, alleged points during to occasions Cazes times and then reset and continued several judge voir dire when the trial refused to July thereafter. On after serious bench, approach allow his to re counsel developed the defendant conflicts between ques to ask a fused to allow defense counsel attorney, public and his defender the trial dire, previously voir and in tion asked on judge private attorneys. appointed two The counsel not to address a structed defense provided to public defender’s office its files prospective juror by her first name. attorneys, by agree- newly appointed and 10, September Initially, ment the trial was set for the record demonstrates that the prosecu- judge trial did not allow either the days judge the trial and
Twelve before trial sound discretion of only upon showing reversed a clear a for a will filed motion continuance and for inuring prejudice abuse and patho- of that discretion expenses fingerprint, advance to hire a to the accused as direct result court’s experts logical “attempt and dental to to 534; ruling. Caughron, 855 S.W.2d State expert proof, counter” to the State’s (Tenn.1982). Melson, 342, 359 employ expert investigate an to whether the Likewise, pro- the determination of whether publicity justified change pretrial a of venue. indigent capi- an expert vision of services to The trial court denied motion because necessary tal to ensure that the defendant length pending of time the had been case rights of the defendant are constitutional complied because the defendant had properly protected is entrusted discre- 13, 2(B)(10), § Supreme with Court Rule tion of the trial court. Tenn.Code Ann. requires specific information to (1990 40-14-207(b) Supp.1992). § & name, date, prospective expert’s examination place, cost. continuance, the As to the motion for a failed an defendant has to show abuse of however, judge, agreement The with the public The had discretion. defender’s office counsel continued trial another two handling the been case thirteen months when September weeks to 1990. On Wednes- present appointed. Many counsel was con- day, September the defendant filed a already granted tinuances had been at the parte hearing motion an ex to to set deter- request. defendant’s Out-of-state witnesses necessity investigative mine the or expert testify were to on behalf of the scheduled services under Ann. Tenn.Code 40-14- arrangements already State and been 207(b), a and for continuance to retain and made to accommodate these witnesses. We approved. any experts utilize The record trial acting that the court was conclude with- judge reflects that the trial informed defen- denying in its discretion in broad defen- objection dant’s counsel over his that the ex dant’s motion for continuance. parte hearing day, would be the next held Moreover, Thursday, trial court did not abuse its begin with the trial on set denying following Monday. request At discretion the defendant’s parte hearing, the ex Although expert compliance for services. request finger- defendant renewed for Supreme is not Court Rule 13 mandato- print, experts dental and pathology for ry specific when a defendant makes a show- requested the first psychiatric, time psycho- expert parte hearing the ex ser- logical neurological experts. Defense necessary protect indigent vices are explained delay counsel the re- rights, defendant’s constitutional there quest experts for new was a result of the showing no such made persons Louisiana, need to interview de- request for expert here. The defendant’s fendant’s unwillingness open up initial accompanied by little more than services counsel, busy and counsel’s schedule. undeveloped assertions services presented No ex parte evidence was attempt were to counter needed hearing to demonstrate the need these possibility proof, State’s experts, except counsel statement indi- juvenile defendant had been molested as cating possibility that the defendant had jail while in and needed further evaluation. jail truancy been molested while in State, See 443 So.2d Caldwell charges. trial court denied the motion Oklahoma, (1983); also Ake v. see grounds prior on the that numerous contin- L.Ed.2d 53 105 S.Ct. granted uances had been at the defendant’s *9 (When indigent an defendant demonstrates request, and because defendant had com- judge to the trial that his mental condition plied Supreme with Rule Court guilt in significant will be a issue either the 2(B)(10). trial, penalty phase the State provide that to grant We observe the decision must the defendant access to one deny competent psychiatrist).4 a motion for continuance rests within expert precluded without merit Likewise is the defendant's claim the denial services him 262 Sequestered
D.
Individual
Voir Dire
only
turned
for “manifest error.” Patton v.
Yount,
1025, 1031,
104
U.S.
S.Ct.
The defendant next faults the trial court
(1984).
2889,
posed
pretrial publicity
points
separate photographs showing
to some
about this
case,
jurors
marks,
including
injuries,
two of the
who heard
victim’s head
breast bite
her
case,
However,
scene,
body position
and one alternate.
those
defensive wounds
arms,
jurors
they
vagina
stated that
could and
ren
on her
and the dilation of the
would
impartial
solely
guided by
that a
der
verdict based
on the
and anus. We are
the rule
presented
regarding
A
evidence
trial.
trial court’s
trial court’s decision
the admissi
findings
juror
bility
impartiality may
photographs
be over-
not be reversed on
will
defendant,
presenting mitigating proof
from
in violation of
knew better than the
fied,
who also testi-
Eighth
jail
whether he had been molested while in
Amendment. The defendant
behalf,
psychologist testify on his
and no one
and the effect it had on him.
*10
weapon;
type of
of
appeal
showing
of an abuse of ber
blows and
absent
clear
Souviron,
Harris,
testimony Dr.
the foren-
at 73.
and
of
discretion.
839 S.W.2d
the
matching
marks
odontologist,
sic
the bite
guilt phase,
photo
At
the
the
pat-
dental
the
with the defendant’s
victim
graphs
to
of the
were relevant
the issues
argues
the
The defendant
testi-
terns.
identity
of
perpetrator
of the
and the cause
mony
serologist
anthropologist
and
of the
death,
necessary
as well as
to illustrate the
of com-
speculative,
was
and
science
testimony
experts.
many
of
of the State’s
At
paring
patterns
mark
has not advanced
bite
sentencing,
photographs
the
relevant to
were
certainty
of
characteristic
the level
is
heinous,
establish the
atrocious or
fingerprinting.
of
photo
A
cruel
circumstance.
testimony,
admissibility
expert
its
The
graph showing how the victim’s skull was
relevancy
competency
matters
crushed,
and
are
rest-
massive force
which illustrated the
victim,
the
of the trial
within
sound discretion
against
properly
used
the
was
intro
speculative
is
testimony
often
court. Such
duced on that
at
as well.
issue
McNish,
degree.
properly in-
some
The
was
State v.
727 S.W.2d
494-95
(Tenn.1987).
speculative
expert
the
nature of
Although
structed on
photographs
the
proof.
certainty in
The lack
absolute
the
graphic
respects,
proba
were
some
their
witnesses,
testimony of
all three of
outweighed
tive
these
substantially
value was not
experts
qualified
whom
in their indi-
prejudicial
Accordingly,
effect.
were
the
we
objection by the
properly
vidual fields without
defen-
photographs
conclude that the
were
dant,
preclude
testifying.
their
pursuant
did not
See
admitted
Rule of
Tennessee
Evi
Banks,
The defendant next on the grounds, same that the trial court abused its SENTENCING admitting into discretion evidence vic tim’s A. Error cleaned and reconstructed skull. The Caldwell skull used testimony was to illustrate the argues The defendant that several anthropologist the forensic who had recon dire, prosecutor during remarks voir it, injuries explained structed as he and statement, opening closing argument and “signature” how he had for the found mur sentencing phase of the trial violated the weapon. cleaned, der reconstructed Mississippi, v. principles of Caldwell highly establishing skull relevant iden 320, 105 L.Ed.2d U.S. S.Ct. tity. The issue is without merit. See State (1985). reviewing alleged Caldwell (Tenn.1982). Morris, violation, must this Court first determine prosecutor’s whether the comments
Equally without merit is the defen
they
minimize the
were such that
would
testimony
dant’s contention that
of his
jury’s
responsibility
role
sense
previous
partners
two
sexual
his pro
about
determining
appropriateness
of death as
pensity
partner during
to bite his
sex was
and,
so,
judge
a sentence
if whether the trial
inadmissible. This evidence
relevant to
sufficiently
impression
corrected the
left
identity
person
who
establish
West,
prosecutor.
State
S.W.2d
raped
victim,
pro
and murdered the
and its
(Tenn.1989).
387, 399
substantially
bative value was not
out
Banks,
weighed by
prejudicial
its
effect.
record and
We have reviewed the
949;
Tenn.R.Evid. 403
prosecu
agree
such
defendant that
Finally,
objected
your
says
tor’s
law
its not
statements as “the
admissibility
expert testimony—
anymore”
“you’re
making
decision
namely,
testimony
finding
penalty.
You’re
forensic serolo
the death
automatic,”
fact,”
gist concerning
pattern
finding
“the
spat-
of the blood
verdict
bedroom;
proof
says
in the
book
what
terings
“the law
the verdict shall
be,”
anthropologist concerning
arguably
state-
forensic
num-
violate Caldwell. Such
*11
jury’s
merits tend to
cuting attorney
minimize the
role and
inquired about
the defen-
jurors
allow the
responsibility
to feel that the
dant’s
Sunday
reaction when he awoke on
clothes,
determining
appropriateness
ear,
for
find blood on his
and tools. The
West,
death sentence rests
defendant
elsewhere.
asserted his innocence and denied
any
S.W.2d at 399.
clothing
there had been
blood on his
morning
During closing
after the crime.
First, however,
stronger
we note that the
argument,
prosecutor questioned
the de-
up
part
statements made
a small
of an exten-
fendant’s statement
that he would black-out
sive voir dire
days
held over a number of
when he became drunk and that he had done
and, therefore,
days
were made several
be-
night
so on the
prosecu-
of the murder. The
Moreover,
fore the
deliberations.
skeptically pointed
tor also
out that the de-
Caldwell,
unlike
judge
the court
the trial
any
fendant did not volunteer
information
in this case
improper
did
endorse the
explain
fingerprints
about or
how his
came to
remarks, which defense counsel here had
be on
lightbulb
the window screen and
pass
objection.
allowed to
without
In addi-
crime scene.
tion,
portions
other
argu-
the State’s final
appeal
The defendant contends in this
correctly
ment
responsibility
set forth the
trial
by overruling
court erred
his motion
jury
under Tennessee’s
sentenc-
for limited cross-examination.
ing procedure,
He asserts
and the defendant’s final ar-
that he
Fifth
privi
retains his
Amendment
gument repeated and re-enforced the State’s
lege
by discussing
not to incriminate himself
argument. Finally,
court,
correct
the trial
the circumstances of the offense if he testi
argument, correctly
after
instructed the
only
background
fies
about his
and other
immediately
they began
before
deliberations
mitigating circumstances unrelated to the of
responsibility
as to their
determining
Lehman,
Relying
fense itself.
on Lesko v.
appropriateness of the death sentence under
(3d
1527, 1542 Cir.),
925 F.2d
West,
cert. denied 502
the law. See
ment violated his state and federal constitu
Right
B.
of Limited Cross-Examination
rights
tional
against self-incrimination under
California,
380 U.S.
85 S.Ct.
Griffin
guilt hearing
prior
After the
(1965),
(1981). 850, 855 Stapleton, 638 State v. added). (Tenn.Crim.App.1982) (Emphasis Estelle, the psychiatrist
In
a
testified for
penalty phase,
relating
during the
state
a
Stapleton emphasize that
Harrison
during a
made
statements
against
privilege
can waive the
defendant
examination, despite the
that
psychiatric
fact
subjects
regarding certain
self-inerimination
advised
his
the
been
defendant
subjects on direct exami
by discussing those
rights
Miranda
before the examination.
more
cases have decided
nation. Other
testimony
violated
Court ruled
takes
broadly “that once a defendant
privilege
Fifth
defendant’s
Amendment
Fifth Amend
he waives his
witness stand
“
self-incrimination, stating that
‘the
against
himself
to
and makes
liable
privilege
ment
availability
privilege does not turn
ordinary
as
witness.”
cross-examination
upon
type
proceeding
in which its
(3d
327,
Weber, 437 F.2d
334
United
v.
States
invoked,
upon
protection is
but
the nature
denied,
932,
Cir.1970),
91
402 U.S.
S.Ct.
cert.
exposure
and the
the statement
admission
(1971).
1524,
People
also
L.Ed.2d 867
See
28
” Id.,
462,
at
101
which it invites.’
451 U.S.
726, 731,
83,
Szabo,
Ill.Dec.
113 Ill.2d
100
v.
Gault,
(quoting
at
387 U.S.
S.Ct.
1873
In re
denied,
995, 1000 (1986),cert.
479
497 N.E.2d
1, 49,
1428, 1455,
87
Under our it is not relevant thoroughly all tes- cross-examined about the barrier whether to the sentencer’s con timony given fairly by defen- raised mitigating of all is in sideration evidence dant on direct examination. by statute, ...; terposed by the sentenc court, ...; by evidentiary rul case, Applying present that rule it is cause, ing, - ... Whatever the the con trial limit clear that the court’s failure to necessarily clusion would the same: did not cross-examination the defendant “Because the failure to con [sentencer’s] prejudicial result error. The defendant all mitigating sider evidence risks the testified on direct examination about imposition erroneous death sen the night the murder and he could said that tence, Ohio, in plain [v. violation of Lockett anything becoming remember after 586, 2954, 438 U.S. 98 S.Ct. 57 L.Ed.2d morning. drunk he awoke It until the next 973], duty it is our this remand case for was, therefore, prosecutor not error for the Oklahoma, resentencing.” Eddings v. 455 inquire specifically into the defendant’s 869, [104] at n. n. [102 U.S. S.Ct. memory day, physi- including of the next the (O’Connor, J., L.Ed.2d ... concur 1] 71 car, clothing, cal condition of his and tools ring).” when In he awoke. view the defendant’s McKoy Carolina, v. North supra, (quoting examination, in- testimony during direct the Maryland, Mills U.S. quiries propounded by prosecutor the were (1988)) 1860, 1865-66, S.Ct. L.Ed.2d proper. omitted). (citations analysis agree
We
set
further conclude that the com
thé
by
closing
recognizes
prosecutor during
forth in Lesko that
the Fifth
both
ments made
Eighth
implica
argument
principles
not violate
set
Amendment
Amendment
did
permit
Supreme
raised
a decision
forth in
The United
tions
whether
States
Griffin.
only
prohibit
limited cross-examination of defendant Court
held that
does not
has
Griffin
capital sentencing
Although
prosecutor
commenting
from
defen
hearing.
at a
we
on a
silence,
general
if
re-
recognize the
Tennessee rule that
dant’s
such comment is a fair
104(d),
Compare
provides
admissibility
lege,
Tenn.
Tenn.R.Evid.
or the
of evidence.
testifying upon
608(b)(3),
104(a);
an “accused
does not
see also Tenn.R.Evid.
R.Evid.
preliminary
subject
matter become
to cross-ex-
privilege against
waive
self-
accused does not
as to
case.” Pre-
amination
other issues in the
testifying
relat-
incrimination when
as to matters
liminary questions
qualification
include the
of a
credibility.
ing to
witness,
privi-
person to be a
existence
case,
sentencing occur after
the trial and
position
taken
either the
but
sponse to a
date,
not err
a trial court does
United
effective
or defense counsel. See
as it
31-33,
by instructing
jury under the statute
Robinson,
States v.
commit
(1988).
the offense was
time
864, 868-70,
existed
S.Ct.
L.Ed.2d
Brimmer,
Here,
under the rationale
ted.
Here,
prosecutor cast
de-
doubt
April
the offense occurred
because
testimony that he
drunk or
fendant’s
was sentenced
and the defendant
time of
offense
blacked-out
pre-1989
statute
under
instruction
acts
describing the calculated
intentional
issue
merit.
This
is without
appropriate.
necessary
to break into
vic-
were
addition,
prosecutor
tim’s
ar-
home.
Equally
is the de
without merit
know,
“you
gued that
didn’t
complaint
court erred
trial
fendant’s
know,
you
explain
anything,
volunteer
pre-1989
by instructing
under
*14
things of that
fingerprints on the screen and
regard
aggravating cir
statute with
nature,
thought
I
was somewhat amaz-
especially
that “the
cumstance
ing.”
that such comments con-
We conclude
heinous,
in
it involved
atrocious or cruel
that
ease,
stitute,
to
response
in this
a fair
the
depravity of mind.”
or
Tenn.Code
torture
claim of
and his claim
defendant’s
innocence
39-2-203(0(5)
(1982). The
§
Ann.
memory loss.
provides that “the murder
amended version
heinous, atrocious, or
in
cruel
Errors
C.
Instructional
physical
that it involved torture
serious
jury
the
challenges
The defendant
necessary
produce
to
beyond that
abuse
given
sentencing
gen
at
on five
39-13-204(i)(5)
instructions
§
Ann.
death.” Tenn.Code
only
grounds.
eral
Because
one
the al
(1991).
holding in
Again, under our recent
leged grounds
is
in
for relief
contained
the Brimmer,
pursuant
the
instruction
to
statute
trial,
defendant’s motion for new
the State
in
the
the
is
effect at
time
offense occurred
argues
the
that
defendant has waived most
merit in the
entirely proper.
also find no
We
We, however,
challenges.
these
have elected
argument
aggravating
that the
defendant’s
to
on the
consider
five issues raised
Ann.
circumstance set forth
Tenn.Code
merits as set out below.
39-2-203(0(5) (1982),
unconstitutionally
§
previously
vague. This
has
and re
Court
First,
argues
that
trial
validity
aggrava
peatedly upheld
of this
charging
jury
in
according
court erred
at
ting
in the face of similar
circumstance
the statute that existed at the time of the
where,
here,
tacks,
jury
particularly
grounds
on the
defendant is
offense
meaning
properly
has
instructed on
been
jury charged according
to have the
entitled
in
in the statute
accor
of the terms used
in
to the statute which is
effect at the time of
Williams, 690
with State v.
S.W.2d
dance
sentencing.
offense
The
occurred
Black,
(Tenn.1985).
526-30
See State
required
in effect at that time
the statute
(Tenn.1991).
S.W.2d
any aggravating
jury
to find that
circum-
any
outweighed by
mitigat-
stances were not
assigns
next
as error
The defendant
ing
impose
in order
death
circumstances
charging all
statuto
trial court’s action
The
occurred
sentence.
ry
refusing to
mitigating circumstances and
statute,
and the
as amended
now
non-statutory mitigating circum
charge
requires
find
past
in the
been critical
stances. We have
proven by
outweigh,
circumstances
State
indiscriminately charging all
practice
doubt,
mitigating
beyond
any
a reasonable
mitigating
have
statutory
circumstances
jury may impose circumstances before
suggested
trial courts instruct
instead
§
Ann.
39-
sentence of death. Tenn.Code
juries only
mitigating
circumstances
those
204(f) (1991).
13—
Smith,
proof.
by the
See
S.W.2d
raised
—
Buck,
Brimmer,
15;
recently
held in State v.
State
(Tenn.1984).
showing of
S.W.2d - (Tenn.1994),
In the absence
that where
of
however,
prejudice,
any such error does
is committed before the effective date
fense
generally
require
the error
involved in this
reversal because
of the same 1989 amendment
Smith,
benefits the
supra.
defendant.
No
CONSTITUTIONAL CHALLENGES
prejudice has been
in this
shown
case.
caution,
Out of an
abundance
the defen-
dant next raises a number of issues that he
The trial court did not commit error when
says either
pen-
render the Tennessee death
it
charge nonstatutory
refused to
mitigating
alty statute unconstitutional or result in the
requested by
circumstances as
the defendant.
arbitrary
imposition
capricious
repeatedly
We have
held that:
penalty.
arguments
death
ofMost
ad-
by
vanced
repeated-
the defendant have been
only mandatory
...
instructions with
Court;
ly rejected
therefore,
by this
we find
respect
mitigating
circumstances are
unnecessary
again
it
discuss in detail the
statutory
those
circumstances which
holdings.
reasons for our
For the resolution
are raised
the evidence shall be ex-
rely
upon
those
authority
issues we
pressly charged,
and the
must be told
cited below.
they
weigh
any
shall
and consider
other
facts or circumstances that are
following arguments
raised
the de-
they
Smith,
raised
rejected
evidence
find to
fendant
supra:
were
circumstances,
mitigating
in making the
(1)
qualifiers
“extreme” and “sub-
circumstances,
determination of which
ag-
stantially”
statutory
in the
mitigat-
as used
gravating mitigating, outweigh
the oth-
set
circumstances
forth at Tenn.Code
er.
(1982),
2—203(j)(2)
Ann.
un-
*15
39—
constitutionally
jury’s
limit the
consider-
Smith,
(quoting
S.W.2d at
from State
evidence;
mitigating
ation of relevant
Hartman,
(Tenn.1985)
106, 118
v.
703 S.W.2d
(2)
“anti-sympathy”
instruction vio-
added)).
(emphasis
jury
The
instructions in
Eighth
lates a defendant’s
Amendment
this ease were in accord with the directives of
rights;
Smith and Hartman.
(3) the
of an
absence
instruction advis-
ing
jury
purpose
weigh-
D. Prosecutorial Discretion in
ing process is to determine whether death
Seeking
Penalty
the Death
appropriate punishment;
is the
(4) the statute is unconstitutional be-
argues
The
pros
defendant
that the
penalty
cause the death
has
imposed
been
ecutor’s
in selecting
unlimited discretion
can
discriminatory
in a
manner based on
didates for the
penalty
death
results in arbi
wealth, race, geography,
gender;
and
trary
capricious imposition
and
of the death
(5)
imposed
the death
is
sentence
in an
penalty
process
and renders the entire
un
arbitrary
capricious
and
manner because
argument
rejected
constitutional. This
is not
as to the
instructed
effect of
by
Supreme
the United
Court
in
States
verdict;
non-unanimous
Gregg
Georgia,
96 S.Ct.
(6)
penalty
imposed
is
in
death
(1976),
in
L.Ed.2d
which
arbitrary
capricious
and
manner because
opportunities
the Court held that
for discre
is not allowed to address
tionary
occurring during
process
action
eligibility,
parole
issues such as
costs of
ing
case, including
authority
murder
incarceration,
deterrence,
general
and the
prosecutor
the state
to select
per
those
execution;
method of
and
sons for
capital
whom he wishes to seek
(7)
penalty
per
the death
is
se cruel and
punishment
penalty
do not
the death
render
punishment
unusual
under all circum-
theory
unconstitutional
op
on the
that the
stances.
portunities
discretionary
for
action render
imposition
penalty
following arguments
by
The
raised
arbitrary
the death
the de-
rejected
supra:
fendant
were
apply
freakish. We
that rule in this case.
State,
Cooper
(1)
there is a reasonable likelihood the
Of
(Tenn.Crim.App.1992) (discussing prosecuto-
trial court’s
understood the
instruc-
rial
post-conviction
discretion in
to a
unanimity
relation
requiring
mitigating
tions as
defendant).
challenge by
circumstances;
39-13-204(i)(7) (1991),
support imposi-
(2)
penalty
of death
appellate review
penalty
death
conviction
tion
constitutionally inad-
is
eases Tennessee
murder,
felony
although it can be used to
equate.
penalty for
support imposition of the death
by
following arguments
the de-
raised
determined that
premeditated murder. We
rejected
Caughron, supra:
were
fendant
felony
murder
the use of
(1)
arbitrary and
penalty
the death
elements of the
duplicated the
circumstance
right
has the
capricious
the State
because
failed to
felony murder crime and
underlying
closing argument
penalty
of final
death-eligible murderers
class of
narrow the
phase; and
I,
required
Article
Section
man-
procedures
the lack
uniform
Eighth
Tennessee Constitution
sequestered
dating
voir dire
individual
Constitu-
Amendment
the United States
during jury
imposi-
selection renders
whether,
now
tion.
must
determine
arbitrary penalty
tion of the death
case,
the sentenc-
on the facts
this
based
capricious.
felony
jury’s
consideration of the invalid
is harm-
aggravating circumstance
Groseclose,
Finally,
in State v.
S.W.2d
beyond
where
a reasonable doubt
less error
(Tenn.1981),
rejected
we
the ar-
147-48
remaining aggravating circum-
there
two
are
gument
defining
ex-
an instruction
stances, namely
previous
the defendant’s
plaining
constitutionally re-
mitigation is
offenses,
felony
of violent
convictions
quired.
murder was
heinous atro-
unnecessary
repeat
find it
Likewise we
it
or cruel in that
involved torture or
cious
lists,
analysis
our
issues
depravity of mind.
argument, regarding
without
a number
connection,
recently
held
we
have
challenges
other constitutional
Howell,
260-61,
previously
ad-
been
decided
this Court
precision
guarantee
[i]n order
versely
position.6
to his
*16
sentencing
individualized
considerations
argues
The defendant next
that the
provide
explana-
a principled
demand and
penalty
Tennessee death
statute fails to suffi
case, it
tion
in each
for our conclusion
ciently
eligible
narrow
class of death
conducting
important,
harmless er-
when
Eighth
under
Amendment to
defendants
review,
completely
the rec-
ror
examine
I,
Constitution,
§
and Article
16 of
the U.S.
po-
presence of factors
ord for the
Constitution,
per
all
the Tennessee
because
ultimately
tentially
the sentence
influence
felony
eligible
sons
are
convicted
murder
include,
imposed.
not limit-
These
but are
penalty
for the death
on
sole basis that
to,
strength of remain-
ed
the number and
they
underlying felony.7
committed the
circumstances,
aggravating
ing
valid
sentencing,
argument
prosecutor’s
Middlebrooks,
In State v.
840 S.W.2d
to establish the invalid
evidence admitted
(Tenn.1992), majority
held
of this Court
nature,
aggravator,
quality
that it is
the Tennes-
unconstitutional under
mitigating
strength of
evidence.
Constitution,
I,
use
see
Article
Section
circumstance,
felony
this case
aggravating
murder
Our examination of
record
39-2-203(i)(7) (1982)
analysis
§
demonstrates
with that
Ann.
accordance
Tenn.Code
Melson,
(holding that
it allows the admission of
S.W.2d at 366-368
stitutional
because
concerning mitigating
findings
sentencing).
neither written
hearsay evidence at
circumstances,
allowing the
nor an instruction
mercy
jury
impose a life
on
are
sentence based
argument
the same
with
7. The defendant raised
Black,
required);
constitutionally
39~2-203(i)(6)
§
regard
Ann.
to Tenn.Code
(holding
that the statute does not violate
(1991)],
39-13-204(6)
mur-
[now
“[t]he
rights
by mandating
of a defendant
constitutional
avoiding,
purpose
der
committed for the
was
jury impose
upon finding
aggra-
that a
death
that
with,
interfering
preventing a lawful arrest or
vating
outweigh mitigating cir-
circumstances
prosecution
or another." This
of the defendant
(hold-
cumstances); Smith,
able doubt.8
capital
contention
this Court’s review of
constitutionally inadequate
cases is
to afford
fully
supports
record here
the two
meaningful
proportionality review. The
remaining aggravating circumstances. The
defendant bases his
the fact
claim on
proof
State introduced
without contradiction
juries
Tennessee
are not
prior
felony
the defendant’s
violent
convic-
required
findings
to make
concerning
written
tions
aggravated rape
and “assault to mur-
mitigating
says
circumstances. He also
der
degree
bodily
first
with
injury.” Addi-
comparative
the information base for
review
tionally,
strongly supports
the evidence
degree
of all first
murder convictions is inad
jury’s finding that the
murder was
equate and incomplete
he
asserts that
heinous, atrocious, or cruel in
it
involved
methodology
conducting
this Court’s
com
mind,
depravity
torture or
beyond
a rea-
parative review is flawed.
sonable
fully
doubt. The
and cor-
emphasized
prior
have
We
on
occasions
rectly
on
aggravating
instructed
this
circum-
comparative proportionality
that our
review
Williams,
pursuant
stance
to State v.
is not
simply
rendered ineffective
(Tenn.1985).
because we
Furthermore,
S.W.2d 517
no
rigid objec
have “not chosen to formulate a
evidence,
any
additional
nor
evidence
tive test” as the “standard of review for all
already properly
jury,
was not
before the
cases.”
n.
quot
S.W.2d at
support
introduced
of the invalid felo-
Florida,
ny-murder
aggravating circumstance. A
Proffitt
(1976).
S.Ct.
271 Hines, Barber, v. 758 crimes. State v. 663- for similar See lined State 753 S.W.2d Duncan, (Tenn.1988). (Tenn.1988); v. 839 State See also S.W.2d 515 House, reject (Tenn.1985); Accordingly, we v. S.W.2d at State 698 S.W.2d (Tenn.1987); appellate Camp- claim that this Court’s v. defendant’s State 743 S.W.2d constitutionally inadequate. (Tenn.1984); review v. bell, State 664 S.W.2d (Tenn.1983); Williams, State 657 S.W.2d opinion that the This Court is of the Black, supra. first-degree felony murder of the victim imposition the death this case warrants clearly
penalty. The record established both CONCLUSION aggravating remaining valid circum carefully defen- have considered the We records were introduced stances. Court alleged errors dant’s contentions as phase penalty to establish the defen during guilt occurring prior aggrava dant’s As convictions. convic- phases the defendant’s conclude (i)(5) heinous, ting circumstance atrocious — sentence should be affirmed. tion and death depravi or cruel in that it involved torture or Tenn. with the mandate of accordance Williams, ty of mind—this Court in State v. 39-13-206(c)(l)(D) § [for- Ann. Code (Tenn.1985), tor defined 39-2-205(c)(4) ], merly we Tenn.Code Ann. physical as or ture the infliction of severe im- of death was not find that sentence pain upon he she mental the victim while fashion, arbitrary that the evi- posed in an or conscious. also said remains alive jury’s overwhelmingly supports dence depravity may acts by be shown occur statutory aggravating finding of circum- A ring shortly at or after victim’s death. stances, supports and that the evidence majority consistently up this Court has any mitigat- jury’s finding absence of circumstance, aggravating so held that sufficiently substantial circumstances defined, against constitutional attack. See aggravating circumstance. outweigh the Smith, State Oscar Franklin Further, comparative proportionality our re- (1993). Here, de instructions in this case is view reveals that the sentence according fined circumstance disproportionate nor Williams, neither excessive contrary conclusion cases, dissent, considering penalty imposed in similar reached the evidence in this clearly crime and character of record both both the nature established torture depravity. Gladys repeatedly Skinner was the defendant. force, and with in the tremendous beaten therefore, We, affirm the conviction of Her chipping
head with a welder’s hammer. felony first-degree murder and sentence virtually skull force shattered from the will out as of death. The sentence be carried of the numerous blows. Evidence indicated day May, provided by on the 14th law may assault have continued some unless otherwise ordered this Court time, and that the victim would not necessari proper authority. Costs of this other ly immediately. have lost De consciousness defendant, against the appeal are assessed Gladys fensive wounds to Skinner’s arms *18 Cazes. Victor James fact, not, that she in lose hands indicate did immediately upon being as consciousness O’BRIEN, JJ., concur. DROWOTA saulted, struggling pro and that she was Accordingly, herself. the evidence tect REID, C.J., concurs and dissents. torture, as in Williams. showed defined DAUGHTREY, J., participating. not Moreover, raped at the fact that Skinner or near of death is further evidence the time REID, concurring dissenting. Judge, depravity have of the crime. We defendant, affirming I in the conviction of first concur the character of the considered However, ag- I hold degree minder. would prior including mitigating proof the (T.C.A. (i)(5) § gravating 39-2- pen circumstance violent acts. We are convinced (1982)) 203(i)(5) and find the arbitrary, invalid sentence alty imposed excessive was neither penalty imposed disproportionate. of death disproportionate For the reasons discussed in v. State to the sentences in similar cases. See T.C.A. Black, 166, (Tenn.1991) 39-13-206(c)(l)(D) 815 S.W.2d 195-97 (Supp.1993). Pursuant (Reid, C.J., dissenting), statute, aggravating circum- to the the defendant and his criminal (i)(5), stance “The murder was hei- compared acts must be with other similar nous, atrocious, or cruel that it involved offenders and acts committed in order to mind,” or depravity torture a is not valid determine if the defendant is those one aggravating persons circumstance this deserving case. This most sentence Harris, circumstance can be established death. See State v. 839 S.W.2d proof only by (Tenn.1992) (Reid, C.J., victim dissenting); was tortured State Howell, (Tenn.1993) the course of the murder or the murder v. 868 S.W.2d (Reid, “depravity C.J., demonstrated mind.” The evi- concurring). injuries dence physical shows the various though majority Even the fail- defends victim, upon imposed including the cause rigid objec- ure of Court “to formulate a death, but there is no evidence of torture. tive test” and insists that the Court does not majority opinion, The which dismisses the duty lightly compara- “take [its] to conduct a summarily, issue does not indicate whether “regu- tive review in each case ...” and does proof showed victim was tor- larly and routinely reports review Rule 12 depraved. tured or the defendant supra See judges,” submitted trial opinion does However, at 267-268. majority’s even the not reflect the basis which it concludes description of the upon evidence relied its is not disproportionate, sentence comparative proportionality review shows except repeat physical evidence. See clearly proves that the evidence neither tor- supra at majority 270-271. The not able “[ejvidence depravity. ture nor That 12 report insist the Rule was utilized may indicated the assault have contin- contrary this case require- because time, ued some that the victim would Court, Supreme ments of the Rules of it necessarily not have lost im- consciousness appear does in the record nor was it mediately”1 equally does not obviate the Supreme transmitted to the Clerk of the likely conclusion that death resulted from the Tenn.Sup.Ct.R. satisfy Court. See 12. To first blows struck. suffi- This evidence is not statutory requirement comparative support finding cient to torture de- review, proportionality this must Court do pravity. more than restate the facts of the case. See Also, for Middlebrooks, reasons discussed in State State 840 S.W.2d 354- Black, aggravating (i)(5), (Tenn.1992) (Reid, prior C.J., circumstance concurring and amendment, to the 1989 is unconstitutionally dissenting); State v. and,
vague, therefore, is invalid. Use of 84-85. “depravity” in defining instruction years old, victim was 68 the defendant aggravator, what can used as an without There is no evidence as more than the State v. Williams2 definition relationship between term, of that constitutes violation of the except victim that the defendant worked for requires state and federal constitutions and step-grandchild, the victim’s that the sentence be vacated. See State v. repaired the victim’s automobile her Black, 195-97, (Reid, C.J., 815 S.W.2d at times, night residence several and on the Tran, dissenting); State v. Van murder, the defendant had attended a (Tenn.1993) J., (Daughtrey, 485-90 dis house, party step-grandchild’s senting); Mississippi Shell v. was located a few blocks from the victim’s *19 (per S.Ct. L.Ed.2d 1 residence. The evidence the murder is curiam, Marshall, J., concurring). entirely proves It circumstantial. the defen- compara- murder;
I also would hold that under the dant committed the it how shows proportionality committed; tive review mandated stat- the murder was but it does not ute, view, why. the sentence of is disproportionate my death show does not record added). (Tenn.1985). Supra (emphasis 1. at 270-271 2. 690 S.W.2d 529-30 support finding proof contain sufficient I sentence is warranted. death of death and
would reverse the sentence
impose imprisonment. of life sentence ON PETITION
ORDER
FOR REHEARING
PER CURIAM. Cazes, appellant, Victor James has cause, rehearing petition in this
filed has and con- Court considered
cludes should be denied. so
It is ORDERED.
Ralph Hillis, HILLIS and June
Plaintiffs/Appellants, Jacqueline Powers,
Glenn POWERS and
Defendants/Appellees. Tennessee, Appeals
Court of Section,
Middle at Nashville.
Dec. 1993. Appeal
Permission to Denied
Supreme Court March