State v. Chalmers

Tennessee, STATE of

Tyrone CHALMERS. Tennessee, Supreme Court at Jackson. 5, 2000. Oct. Garner, TN, Kaye

Linda Memphis, for appellant, Tyrone Chalmers. Summers, Paul Attorney G. General and Reporter, Moore, Michael E. Solicitor Gen- eral, Daab, and Erik William Assistant General, Attorney appellee, State of Tennessee.

OPINION J., HOLDER,

JANICE M. delivered the court, opinion of the E. RILEY ANDERSON, J.,C. and WILLIAM M. BARKER, J., joined.

The defendant was felony convicted.of murder and especially aggravated robbery. sentenced him to death after finding that the aggravating evidence of an - circumstance that the defendant pre- viously felonies, convicted of one or more other than present charge, whose stat- utory elements involve the use of violence - person outweighed evidence of mit- igating beyond circumstances a reasonable doubt. The judge imposed trial a sentence of twenty years especially aggra- for the robbery conviction, vated to run concur- rently with the death' sentence but consec- utively to previously imposed sentences another case. appeal, On direct the Court Appeals Criminal affirmed the convic- tions and sentences. We conclude that the State’s introduction of evidence and subse- quent argument concerning specific facts and circumstances of the defendant’s felony violent convictions do not mandate reversal under Bigbee, State v. (Tenn. 1994), 885 S.W.2d 797 that the sen- tence of death is not excessive or dispro- portionate to the penalty imposed simi- cases, lar and that race is considered when § Ann. 39-13- performing comparative proportionality re- mandated Tenn.Code 206(c)(1)(Supp.1994); an and whether and view to ensure that aberrant death how of race should be consid- the factor sentence was not due to de- comparative pro- performing ered when affirm Accordingly, fendant’s race. portionality review. respects, Appeals of Criminal in all Court that introduc- case, defendant, We conclude the State’s Tyr- In this capital the subsequent of and argument tion evidence Chalmers, one was cоnvicted of one count specific facts and circum- concerning the felony especial- and one of of murder count prior violent stances of the defendant’s aggravated robbery. ly The sen- felony mandate convictions do not reversal him that finding tenced to death after the under We that Bigbee. further conclude of aggravating evidence an circumstance— supports jury’s findings the the previously the defendant was convict- aggravating mitigating as to and circum- felonies, of one or ed more other than the that the of stances and sentence death was present charge, statutory whose elements arbitrarily and is imposed not exces- person, involve the use of to the violence sive or to the im- disproportionate 39-13-204(i)(2) § see Ann. Tenn.Code posed Lastly, clarify in similar cases. (Supp.1994), outweighed evidence of miti- — performing when race is considered beyond gating circumstances a reasonable comparative to en- proportionality review judge imposed doubt. trial a sentence sure that an aberrant death sentence was twenty years especially aggra- of for the due to race. the defendant’s conviction, vated robbery to run concur- the the of Accordingly, judgment of Court rently with the death sentence but consec- is affirmed. Appeals Criminal utively to previously imposed sentences another case. FACTUALBACKGROUND appeal,

On direct the Court Criminal Appeals affirmed the convictions and the August At on approximately 5:00 a.m. imposed. sentences ap- The defendant 20,1994, body the of the African-American pealed to raising this Court numerous is- victim, Allen, 28-year-old Randy was dis- sues. We an designating entered order lying face down on the sidewalk covered (cid:127) the for following argument:1 issues oral in Memphis. next to Netherwood Street (1) occurred, whether error plain requiring pants pulled His had underwear been light reversal the sentence in of State v. ankles, his and he had been down around (Tenn.1994), Bigbee, 885 wounds, one to shot five times. Two of the 39-13-204(c) § (Supp. Tenn.Code Ann. back, the the were hеad and another to 1998),when prosecution introduced ev- fatal. concerning idence and circum- facts 21- days shooting, Ten after underlying prior stances defendant’s ad- year-old African-American defendant felony

violent convictions and when the Memphis mitted that he had police circumstances prosecution referred during robbery. killed the victim prior felony these violent convictions defendant stated: argument; during whether sen- tence of death in this case is excessive or I and “Black” on up met “Dre” disproportionate penalty imposed Parkway park. near the Orleans and So. cases, like driving something the crime considering similar both “Black” Oldsmobile, defendant, was in front and all other “Dre” issues a[sic] setting argument, designating it "Prior to enter an order those issues 1. oral argument....” Court and briefs and wishes addressed at oral shall review record assigned. may Tenn.R.Sup.Ct. 12.2. consider all errors The Court got and I back contested the clerk’s identification passenger seat defendant, way no just riding seat. around look- have asking, We were “[Y]ou I somebody to rob. had some those documents knowing whether or not rifle, it, [sic ] clip fact, it had a you belong kind automatic have are had a Chalmers, black brown color. “Dre” You have no Tyrone you? do something, .380 automatic or look you?” [sic] do personal knowledge yourself, crimes, black to me. I think “Black” had a Hunter, those the victim of shotgun. driving “Black” was down driving home at then he was testified that Netherwood, and me and “Dre” jumped August on approximately 2:55 a.m. boys.2 out on two We tried to them. rob in front stepped when the defendant strip, We made them then I had hit the him, and told car, pointed a rifle at of his one that was rifle and it Hunter, killed According “give up.” him to it off, go. went I and couldn’t let the rifle fifteen approximately the defendant fired jumped Then me and “Dre” in the car away, striking him he drove rounds at left, driving. and with “Black” Then arm. leg Hunter in the and “Black” dropped me and “Dre” off near testimony presented The defendant house, close to Southside School. mother tes- sister. His of his mother and defendant, The who and Murphy robbed one of seven tified that the defendant was $3.00, the victim of estimated that had he school, children, high graduated had from fired six times. The defendant concluded trouble. At any had never her given and by remarking, sorry his statement “I’m it offenses, the defendant the time of these happened. go through ever If I could it caring for his émployed and was was I again, wouldn’t.” suffered from diabetes. mother who the defendant sister described defendant’s proof, jury Based on convicted best very person” and her caring as “a felony espe- defendant murder and had been friend. conceded that he She cially aggravated robbery.3 juvenile claimed that the court once but During sentencing phase, the State “actually com- victim of that had offense pre- introduced evidence of the defendant’s the defendant. against mitted crime” attempted especially vious convictions for defendant, was the who last witness aggravated robbery attempted and first he commit- only testified that hours before degree episode murder for a criminal oc- drinking ted these offenses he had been curring present on the same date as the alcohol and had crack cocaine for smoked Deputy offenses. The Clerk for the Shel- could the first time. He claimed that he by County Criminal Court Clerk’s Office re- happened not remember what but did that, according testified to the court rec- one gun belonged he ords, call that the used Tyrone Chalmers was convicted of having accomplices. He admitted attempted especially aggravated robbery that the juvenile been in court but asserted July attempted degree and first murder on 8, ever faced 1996, only charges criminal he had against for offenses committed 20, arising Dur- from the events of Joseph August Hunter on 1994. were those 20, cross-examination, 1994. early morning August defense counsel hours Ap boys” agree of Criminal 2. These "two were the victim and his 3. We with the Court support peals cousin, that the evidence is sufficient to Murphy. Marlon The defendant was Virginia, 443 U.S. the convictions. Jackson robbery aggravated also indicted for the 2781, 307, (1979); 99 S.Ct. 61 L.Ed.2d 560 Murphy, charge was dismissed due to but 832, (Tenn. Cabbage, State v. 571 S.W.2d Murphy’s unavailability as a witness ‍​​‌​‌​​​​‌‌​​​​​‌​‌‌‌​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​​​​​‍for the 305, State, 298, 1978); Liakas v. 199 Tenn. prosecution. 859, denied, U.S. cert. (1956). 77 S.Ct. 1 L.Ed.2d 49 The defendant asserts that evidence family The defendant told the victim’s pri- sorry of the defendant’s expressed underlying he was his desire to facts necessarily if he affected place take the victim’s could. On or convictions cross-examination, elimi- effectively the defendant admitted jury’s deliberations tried to before as a imprisonment that he rob Hunter he ever of life option nated Dre Black. up (citing met with id. at 811 sentence. See (Tenn.1988)). Smith, 757, 767 on this proof, Based sentenced that the The State counters the defendant death. necessary to re- it was admissible because id. at the defense. See spond claims State, PROSECUTORIAL MISCONDUCT (citing Cozzolino (Tenn.1979)). fur- 767-68 The State above, introducing As noted after evi- that, ther because the evidence contends hearing the sentencing dence at that the admissible, argument upon based previously defendant was convicted of the proрer. it was robbery attempted especially aggravated attempted murder degree first of Jo- engaged prosecutor When a has Hunter, seph presented the Hunter’s State conduct, test improper in the for determin testimony about specific the facts of those is there is reversible error whether Later, during argument, crimes. the State ver impropriety “whether the the ‘affected the concerning referred to circumstances ” dict to defendant.’ prejudice the the offenses The involving the Hunter. defen- State, (quoting Harrington Id. at 809 object dant did not at trial and did not 758, 215 385 759 Tenn. S.W.2d appeal. complain on (1965)). determination, making this the In (1) the com Court considers: conduct Generally, will this Court not con light in the facts plained viewed the by sider issues not raised the parties; (2) case; the and of the circumstances however, plain proper error is a consider court by curative measures undertaken the an appellate ation for court whether prop (3) the prosecution; and the the intent of erly assignеd Taylor, or not. State v. 992 making argu prosecutor improper in the (Tenn.1999). 941, 943-44 S.W.2d Plain er ments; (4) the cumulative of the effect may recognized ror pursuant to Tenn. any errors improper conduct other 52(b) right” R.Crim.P. when “substantial record; strength the the relative of the accused is affected and consider (citing case. and weakness of the Id. “necessary ation of the error to do sub Buck, (Tenn.1984)). S.W.2d justice.” this Bigbee, stantial In Court that it is inappropriate held to admit evi have reviewed the record We regarding specific

dence facts of the crime prosecu this case and conclude that the in the resulting prior conviction the when reversal tor’s conduct does mandate face shows it prior conviction on its that Bigbee. testimony under Hunter’s was threat of involved violence or the violence respond to claims con relevant to defense person. Bigbee, to S.W.2d at 811. testing of the identification defendant prosecutor’s This error combined with about perpetrator prior offenses argument, other improper among Cozzolino, which the clerk testified. See things emphasized the circumstances It was conviction, inappropriate, 584 S.W.2d at 768. prior required reversal of however, facts to introduce evidence of the Bigbee. Id. at 812. sentence of those crimes prior and circumstances light Bigbee, parties In asked the to that was not relevant to the identification plain requiring address whether error re elicited issue. could have prosecutor versal occurred in this case. individual, Hunter, home, coming an Mr. testimony from Hunter limited Hunter’s street, ability identify appears a man on the wants to the defendant. Cf. (Tenn.1995) car his life. Dyle, take his or whatever or And, him (holding jury proceeds that must be instructed that to shoot at fifteen hit him testimony may gets value of identification de- times and two times. He pend op- away, barely. Less than two hours after upon capacity witness’s offender). that, I portunity particular offense occurs. observe you proven submit to that we have be- argument, As for the this case distin- yond that the defen- a reasonable doubt guishable Bigbee. argument in from has of an dant been convicted offense Bigbee highly improper for several prior particular violence to this offense. reasons, including: char- emphasizing the murder, prior proper argue it was that Hunt acter of the victim of the While testimony proven aggravating had informing jury of the life sentence for er’s doubt, offense, beyond that the circumstance a reasonable implying defendant improper argu punish- prosecutor engaged should be sentenced to death as murder, jury should prior appealing implying ment ment against consider the nature of the violence vengeance. to react out of id. Bigbee, 885 S.W.2d at 811-12. The Court the victim the Hunter offenses. Cf. that, argument regarding at 812 although (holding held each of these errors alone, might standing improper). have harmless victim of offense been However, cumulatively, Bigbee, improper unlike re improper considered were not extensive. See prosecutorial argument and the admission marks this case Cauthern, v. 967 jury’s of irrelevant affected the also State S.W.2d (Tenn.1998). No curative measures sentencing determination to the defen- 737 defendant failed to prejudice. dant’s Id. at 812. were taken because the object. prosecu of the See id. The intent at the sen- During opening argument introducing testimony tor in Hunter’s was case, prosecutor in this tencing phase improper prosecutor in that the was facts or even the did mention the responding to defense claims that the evi specific involving convictions the Hunter prior convictions was insuffi dence of only prosecutor offenses. The indicated of the regard cient with to identification relying the State would be on the impro The perpetrator. defendant as the defen- aggravating circumstance that the introduction of priety was limited to the previously of one or dant was convicted More the details of the Hunter offenses. felonies, present than the more other over, argument here Bigbee, unlike charge, per- which involved violence to the only respect in that it improper was During closing argument, prosecu- son. that the should consider the implied to the circumstances of the tor did refer against violence Hunter. nature of the perti- Hunter when he stated in offenses circumstance, proof aggravating The part: nent evidence, excluding even the inadmissible considerable, you This before has been convicted mitigating man and the evi prior slight. of a crime that involved violence evi dence was inadmissible particular only put trial. We not on improper argument, consid dence and the that, brought jury’s we cumulatively, the clerk show did not affect ered nature of that the defen you sentencing victim to show determination to Bigbee, 885 S.W.2d prejudice.' is not a where dant’s See offense. This violence pushed Any or constitutional error somebody gets slapped, hit or at 812. beyond a reasonable doubt. See involves harmless knocked down. This violence

919 include: Howell, of defendants 809; the characteristics v. 868 see also State id. (1) (Tenn.1993). criminal record or prior the defendant’s 260 Because S.W.2d (2) activity; the defendant’s error, not ad criminal we need find no reversible (3) race, the defendant’s gender; age, assertion that reversal the State’s dress condition; mental, physical Ann. light of Tenn.Code emotional not warranted 39-13-204(c) (4) role involvement or (Supp.1998).4 § the defendant’s (5) murder; coopera- the defendant’s (6) authorities; the defendant’s tion PROPORTIONALITY COMPARATIVE (7) remorse; knowledge of the defendant’s REVIEW (8) victim(s); the de- helplessness his contends that The defendant Id. for rehabilitation. capacity fendant’s disproportionate sentence to numerous present case is similar cases. Pursuant similar death was in which the sentence of cases 39-13-206(c)(l)(D) § Ann. Tenn.Code have by this We reviewed affirmed Court. compar (Supp.1994), the Court conducts direct sentence on upheld to ensure that proportionality ative review involving the following cases appeal death sentence is affirmed. no aberrant dur randomly chosen victim shooting of a Blanton, 281 v. 975 S.W.2d State Smith, 993 S.W.2d robbery: State v. (Tenn.1998). compara In pеrforming our Burns, (Tenn.1999); v. 979 S.W.2d State 6 function, we have con proportionality tive Howell, (Tenn.1998); v. 868 276 State sistently employed precedent-seeking (Tenn.1993); Boyd, v. State S.W.2d 238 case at is approach, compares (Tenn.1990); State v. 797 589 S.W.2d sue with other cases which defendants (Tenn.1988); Johnson, 110 762 S.W.2d or similar were convicted of the same (Tenn.1987); Bobo, v. 727 S.W.2d 945 Bland, 651, State crimes. State v. (Tenn. (Tenn.1997). Sparks, S.W.2d State Factors relevant to the Harries, 1987); process comparison of identification and Coleman, (Tenn.1983); (1) means of similar cases include: Smith, (Tenn.1981). In addition (2) death; (e.g., the manner of death vio up we have other cases which supra, lent, torturous, etc.); the motivation for on the sole (5) sentence based (4) held the death death; the killing; place the the of violent prior circumstance of aggravating in similarity of the victims’ circumstances Adkins, include felony conviction condi cluding age, physical and mental (Tenn.1987), and State tions, 725 S.W.2d 660 during treatment and the victims’ (Tenn.1986). Goad, (6) killing; presence the absence or the (7) premeditation; presence the absence the ‍​​‌​‌​​​​‌‌​​​​​‌​‌‌‌​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​​​​​‍defen (8) We have considered pres absence or provocation; the have re argument that he should injury dant’s justification; and the

ence of he commit a life sentence because victims. Id. ceived on non-decedent and effects totally alien to his character ted an act comparison relevant to at 667. Factors case, evidence shall not be conviction. Such sentencing in this Tenn.Code 4. After creating 39-13-204(c) danger un- pose a § to add the construed to was amended Ann. issues, confusing or mis- following language: prejudice, the fair subject leading jury not be the shall upon the where the state relies In all cases probative ground that the on the exclusion the defendant was aggravating factor that by outweighed evidence is value of such (1) or more previously convicted of one party. Such evidence prejudice to either felonies, charge, present other than the determining the by jury in used shall be statutory involve the use whose elements aggravating fac- weight to bе accorded person, party shall be to the either violence concerning tor. permitted to introduce 39-13-204(c) (Supp.1998). § prior Ann. Tenn.Code and circumstances of the facts Court, drugs. while under the influence of To the decisions of this we have considered contrary, the entire defendant’s own witnesses record this case and conclude juvenile established that he had been in that the sentence of death was not fashion, arbitrary in an that court on another matter before inci- the evidence jury’s finding supports statutory dents of of the August 1994. The record circumstance, supports aggravating the evi- jury’s finding aggra- that the jury’s supports finding dence that the vating prior felony circumstance of violent aggravating outweighed circumstance miti- outweighed any mitigating convictions cir- gating beyond circumstances a reasonable beyond cumstances a reasonable doubt. doubt, and that the sentence of death is upon strength Based of this aggrava- disproportionate not excessive or ting similarity circumstance аnd the of this cases, penalty imposed in similar consider- case to other cases in which the death ing both the nature of the crime and the imposed, conclude carefully defendant. have reviewed all We death sentence in dispro- this case is not by of the issues raised the defendant and portionate. regarding the issue we raised the State’s subsequent introduction of evidence and RACE A IN AS FACTOR argument concerning specific facts and PROPORTIONALITY circumstances of the defendant’s vio- ANALYSIS convictions, felony lent and we have deter- allege The defendant does not and mined that these issues are without merit there is no jury’s indication that the sen require respect or do not reversal. With tencing determination this case was specifically to issues not addressed Nevertheless, upon based race. the State opinion, we affirm decision suggests regarding need for clarification Appeals, by Court of Criminal authored in proportionality analysis. the use of race Judge Gary joined by R. Wade and Bland, race, In along the Cоurt listed with Judges Thomas T. Woodall and John Ev- age gender, as one of the factors to be portions erett Williams. Relevant of that comparing considered when opinion characteristics are attached an appendix to this of defendants. In opinion. 667. The defendant’s sentence of applying the Bland death is affirmed and shall be carried out factors to the defen Pike, day February, on the 9th unless dant 978 S.W.2d 904 “[wjhile (Tenn.1998), proper otherwise ordered this Court or Court noted authority. only Pike is the second woman to receive Tennessee, sentence there is appearing It from the record that the absolutely jury’s no indication that the im appellant indigent, appeal costs of this position of the death sentence was motivat are to of assessed the State Tennessee. by upon gender.” ed or based Pike’s Id. Likewise, at 919. race is when considered BIRCH, Jr., J., a ADOLPHO A. filed performing comparative proportionality re concurring dissenting opinion. view ensure that an aberrant death sentence was not due to the de DROWOTA, III, J., FRANK F. fendant’s race. participating. Jr., J., BIRCH, A. ADOLPHO CONCLUSION concurring dissenting. In accordance with the mandate of 13—206(c)(1) § (Supp. Ann. comparative proportionality Tenn.Code review 39— 1994) principles adopted guard against arbitrary and the in is intended to studies, race of victim I percent imposition penalty, of the death being the likelihood of found to influence majority that race is agree with the receiving capital murder or charged with if propor- considered factor which must be i.e., mur- those who penalty, the death pur- tionality accomplish is to its review likely found to be more were dered whites however, majority fails opinion, pose. those who to death than to be sentenced any guidance to how race is provide General murdered blacks.” United States analysis. in that Without to be considered Office, Penalty Accounting Death Sentenc- objective compara- of guidance, such Racial Indicates Pattern ing: Research lost. More- proportionality tive review is (Feb.1990) reprinted in at 5 Disparities over, pool there is evidence (daily May ed. Rec. Cong. S6889-90 proportionality examined in capital cases 1990). re- Additionally, the USGAO’s may be reviews conducted this Court “more than half of revealed that view so, comparing If this “race-tainted.” the defen- found that the race of studies defendant’s race death-sentenced being the likelihood of dant influenced prior capital in cases race of defendants receiving crime or charged capital arbitrary im- nothing prevent does .2 penalty.” Id the death capital punishment. position of widely analysis cited Perhaps the most Thus, guidance, the use of a the lack of in a case is the context of of this issue “race-tainted,” and pool probably which is McCleskey Kemp, in 481 U.S. found in subjective manner which these re- (1987). 95 L.Ed.2d 107 S.Ct. efficacy their views are conducted make McCleskey Georgia, in The case arose views, I questionable. Because of these showing offered statistical agree impose penalty cannot the dеath more Georgia was and therefore this case dissent. American imposed upon Afro likely to be defendants, the victim particularly when 286-87, Id. at 107 S.Ct. was Caucasian. I Pulaski, Baldus, 1764-65(discussing D. C. examining the role of race Before Woodworth, Comparative Review & G. review, im- comparative proportionality its Study Empirical An Death Sentences: upon capital punishment general pact L. Experience, 74 J.Crim. & Georgia must be addressed. Several commenta- (1983)). Although a bare Criminology 661 questioned improp- tors have whether race McCleskey’s upheld majority of the Court erly influences the decision of which defen- conviction, pointed out Justice Brennan dants should executed. McCleskey’s statistics raised dissent the fairness of questions about serious by the performed A nationwide review penalty: death Accounting General Office United States (USGAO) case, Warren point more than two dozen studies At some lawyer McCleskey asked his doubtless sentencing “[i]n found that on death capital punishment is relevant érly those influences "Race-tainted” is used to describe 1. here, however, prejudice would which racial has influenced because such evidence cases in prosecutor’s to seek the reliability comparative either the decision tend to affect the impose jury’s penalty or the decision to death any race proportionality in case where review a death sentence. upon pool cases which If the is a factor. comparative proportionality re- rely we for of a 2. The conceded that the evidence USGAO race-tainted, considering a defen- then view is race and between the defendant’s connection pool lends comparison to that dant’s race in compar- penalty "equivocal” in the death was capital against racial bias in protection no connection associated with the ison to the punishment. significant because the victim's race. This is pending Ameri- in the case was Afro victim improp- that the victim’s race can. Evidence 922 1141, 1127, 1135, likely a to sentence

whether was U.S. S.Ct. (1994) (Blackmun, J., ques- him A reply to die. candid to this L.Ed.2d 435 dissent- First, disturbing. tion would have been ing). McCleskey

counsel would have to tell or of few of the details of the crime II McCleskey’s past criminal were conduct final, Because of the irrevocable nature important more than the fact that his penalty, of the death we must be cautious [Fjrankness victim was white.... would imposition to insure that its not tainted is compel the disclosure that it more Cobb, prejudice. racial Cfi likely than not that the race of McCles- 1, (Berdon, Conn. 743 A.2d key’s victim would determine whether (“When J., dissenting) death is the conse- every he received a death sentence: 6 error.”). quence margin there no killing 11 defendants convicted of a Such caution mandates that Tennessee im- person white would not have received pose to racial safeguards prevent reliable if penalty the death their victims had infecting capital from discrimination black, while, among been defendants sentencing protocol appellate and its rе- aggravating mitigating factors done, view. cannot Until this is be comparable McCleskey’s, every to 20 of penalty being certain that 34 would not sentenced to have been die imposed in a fair and constitutional man- Finally, if their had black. victims been Unfortunately, majority’s analy- ner. complete assessment would proportionality sis of review in the case in- without the information cases us, view, my provide in to before fails volving black white vic- defendants and necessary safeguards against improper likely tims are more to in a death result imposition of race in the consideration featuring any sentence than cases other capital punishment. racial combination of defendant and vic- tim. The in story variety could be told a a majority opinion devotes but sin- fail ways, McCleskey but could not to gle paragraph analyzing to the role of its grasp essential narrative line: there comparative proportionality race in re- a significant chance that race would circumstances, view. Under thе this anal- play determining if prominent a role short, view, ysis my provid- falls far he lived or died. necessary safeguard ing the criteria against consideration of race improper (Brennan, J., Id. at 107 S.Ct. 1756 imposition capital punishment. in the (citations omitted). re- dissenting) More “race is consid- majority states that cently, Harvey, Justice Handler performing comparative pro- ered when Jersey Supreme of the New Court stated portionality that an aber- review ensure that prosecu- dissent “the evidence imposed rant due death sentence was juries significantly likely tors and are more Unfortunately, to the defendant’s race.” charge with and sentence to death black a suggest fails to how review- opinion victims, killing defendants white is over- should determine whether court whelming.” 159 N.J. A.2d to” race. (1999). death sentence was “due complete While a review of above, As numerous studies discussed linking capital pun- the evidence race and may play that racial bias have indicated beyond scope opin- ishment is of this detеrmining de- significant role ion, overwhelming conclusion is that “[ejven penalty. With- fendants receive the death sophisticated under the most death statutes, out some that Tennessee’s play assurance penalty race continues death cases have remained free major determining who shall live role Collins, bias, compara- it unclear how and ‍​​‌​‌​​​​‌‌​​​​​‌​‌‌‌​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​​​​​‍who shall die.” Callins v. 510 from such is

923 penalty] in which death is [the en- cases tive could ever few proportionality review it the cases in which is many from sentencing sure that race-motivated death (Tenn. Bland, at 675 958 S.W.2d If a sentence not.” does not occur. defendant’s 1997) J., (Reid, concurring dissenting) pool to a of which are compared is cases 238, Georgia, v. 408 U.S. race-tainted, citing Furman similarly reviewing court the 2726, 2764, L.Ed.2d 346 92 S.Ct. is to deter- without a benchmark (1972) (White, J., Although concurring). the sentence is mine whether defendant’s itself is proportionality review comparative “aberrant.” constitutionally the Tennes required,3 not Furthermore, majority the does comparative has legislature chosen see in race clarify whose should be considered pro of review as a means proportionality proportionality review-the de- comparative “meaningful required by the basis” viding victim’s, fendant’s, In the both. Bland, See the constitution. Bland, Court the list of addressed (Reid, J., dissenting). concurring and considered in proportionality factors be in which Unfortunately, manner we (Tenn.1997). review. 958 S.W.2d comparative proportionality our conduct In addressing the of defen- characteristics objective. fails to accomplish review race, dants, “age, the Bland Court listed procedures are ineffective for review and gender” as factors to be considered. employ is so three reasons: “test” we However, addressing in the characteristics could nearly any that sentence broad victims, only the Court listed “the simi- proce proportionate; found our review larity of the victims’ includ- circumstances subjective; “pool” are too and the dures ing age, physical and conditions.” mental proportionali are fоr cases which reviewed Id. Although recog- the Bland did Court ty is too small. nize ... “by that its list was no means procedures proportionality review id., exhaustive,” see the Tennessee Su- by the it employed exceeding- Court make preme never that clearly Court has stated ly difficult for defendants to show that victim’s race should be considered disproportionate. their death sentences are comparative proportionality review. Given Bland, created In the Court a array indicating vast “totality ap- circumstances” narrow in death are at disparities sentencing racial a determining whether defen- proach greatest their cases an Afro- where disproportionate. sentence dant’s death is defendant has American killed a Caucasian first at 665. The out- Court person, should clearly establish comparative test lined the be used victim’s race race defendant’s case, taken “If the proportionality review: equal significance comparative pro- bear whole, in circum- plаinly lacking as a review. portionality consistent those similar stances is im- penalty cases in which death Ill in the posed, the sentence of death case In addition to the difficulties inherent Id. being disproportionate.” reviewed added). pro- race in comparison comparative The Court then (emphasis review, the in which portionality manner it would not find death stressed merely proportionality review itself is conducted be- disproportionate to be sentence In significant point compa- concerns. order raises cause the defendant could requirements, proto- where death meet constitutional cases rable if a defen- punishment provide imposed, col because capital “[e]ven must receives a death sentence when distinguishing basis for dant “meaningful Hams, 50-51, (1984). 79 L.Ed.2d Pulley 3. S.Ct. See U.S. circumstances of the offense reviewing are similar to court able to describe those an offense for comparable which a defendant in to case before it terms sentence, has case, received a life capital pending the death other In the cases. sentence not disproportionate where range broadly cases was similar Court can discern some basis for the lesser defined to encompass involving “cases Furthermore, sentence.” Id. even if shooting a de- of a victim randomly chosen dur fendant could show that other ing robbery.” defendants Had Court chosen received life sentences for similar crimes different compara factors and defined the reviewing and the court could not discern narrowly, possible ble cases more it is treatment, some basis for the difference in number of “similar” cases which the necessarily spare would not the defen- death penalty upheld had been would be Court, dant. by As stated the Bland much smaller. “where there is no discernible basis for the Furthermore, system Tennessee’s in sentencing, difference the death sen- comparative does proportionality review tence is necessarily disproportionate. consider all cаses which the This Court required is not to determine imposed. death penalty could have been that a sentence less than death was never Therefore, protect defendants it fails

imposed in a case with similar characteris- decisions. In arbitrary prosecutorial from tics.” Id. Bland, determined that courts the Court

Because our comparative current pro re- applying comparative proportionality portionality system objective review lacks cases in only view should consider “those standards, comparative proportionality sentencing hearing which a capital analysis seems to be little more than actually determine whether conducted to “rubber affirm stamp” to whatever deci imprisonment, be life sentence should sion the reaches the trial level. imprisonment possibility life without the Bland, Justice Handler of Jersey the New parole, by Su or electrocution.” death preme Court, criticizing New Jersey’s pro Thus, large seg- 958 S.W.2d at 666. tocol, a comparative propоrtionality review ment of in which degree first murder cases protocol Tennessee’s, similar to described prosecutor chose not to seek the death inherently subjective such reviews as “an penalty comparative are excluded from exercise that culpability my ‘invokes I proportionality assess review. As stated court, are, Bland, ments essentially, which often dissent are “[d]efendants judgments’.... moral degree [A] death sentence convicted after a of first murder always justified can given the level of trial in which for whatever prosecution, individuality analysis.” reason, afforded the penalty.... did the death not seek Harvey, However, N.J. 731 A.2d penalty cases in which the death (1999) J., (Handler, dissenting) (quot pro- is not sought equally are relevant Loftin, State v. portionality 157 N.J. 724 A.2d the death as cases (Handler, J., dissenting)). penalty is Id. at 679. sought.” Unless objective Without some guide pen- standard to all compare cases which the death courts, reviewing “proportionality” alty be could have a reliable imposed, been nothing comеs more than a statement that finding proportionality impossible.4 implied comparative ity against capricious 4. The Bland Court "guard that a review is proportionality encompassed penalty.” imposition review which death random penalty non-death cases would entail an im Id. at 665. If the evidence were show permissible prosecutorial arbitrarily applied review of discre had been Whitfield, (citing prosecutors tion. See id. n. 17 dif State v. because treated similar cases reason, (Mo. 1992)). However, ferently such random for no rational primary purpose comparative proportional not be choices between life and death should arbitrary dispropor- from the fendants comparative the weaknesses of Despite penalty. the death review, imposition in- tionate we continue proportionality propor- comparative that Although agree I courts, and defense prosecutors, sist to ensure con- is essential tionality and resources review expеnd time counsel ap- constitutionally reviews, continue just as we the death ducting these current that the are defendants am unconvinced protecting plied, to insist that we I purpose. unfair of the death fulfills imposition system adequately from the must Furthermore, agree dissent I that race In his concurrence and while penalty. Bland, pro- not one of comparative Reid noted that factor if Justice be considered effective, had the Court the 116 death sentences to be review is portionality found dis- at the time had been issue cursory reviewed treatment of this majority’s noted that cautiously analysis and he proportionate, proportionality how specify fails [comparative proportionality “whether to ensure in order be conducted should more procedure produce ... will capi- review] from our is eliminated that racial bias jury ver- affirmation of than the routine flaws these sentencing system. Until tal by praise proce- of the accompanied dicts corrected, I cannot аre addressed Bland, 958 remains to be seen.” dure death sentence that the agree defendant’s capital at 675 n. 1. In the fourteen S.W.2d fairly proportion- has been this case Supreme Court has reviewed cases keeping with the constitu- ately imposed Bland, string proportionality since Therefore, I in the although concur tion. by unbroken even affirmations remains the defen- decision to affirm majority’s ' reviewing reversal.5 In a similar single conviction, respectfully I dissent dant’s proce- review comparative proportionality pen- the death impose from its decision Connecticut, Justice Peters dure alty in this case. Supreme Court stated Connecticut for an death sen- [aberrant

“the search chimera,” pursuit is the of a and she tence] facing concluded that defendants APPENDIX “receive penalty did not even scintilla from review.” protection proportionality Ap- of Criminal from Court (Excerpts Cobb, v. 251 743 A.2d State Conn. Decision) peals’ (1999) (Peters, J., concurring). Be- 183 the weaknesses inherent Ten- cause of OF THE TENNESSEE COURT IN re- comparative proportionality nessee’s APPEALS CRIMINAL could be said of procedure, view the same AT JACKSON in Ten- comparative proportionality review 1998SESSION DECEMBER nessee. Tennessee, Appellee,

State IV v. reasons, view, foregoing my For the Chalmers, Appellant. Tyrone protect de- majority’s opinion fails Hall, (Tenn.1998); S.W.2d 121 any v. 976 than if the State accepted this Court more Vann, (Tenn.1998); by aberrant S.W.2d 93 had been created v. 976 same result State Blanton, (Tenn.1998); juries. 269 975 S.W.2d State v. Cribbs, (Tenn.1998); S.W.2d 773 State v. 967 State, (2000); Keough S.Ct. 205 v. 121

5. See (Tenn. Cauthern, S.W.2d 726 v. 967 State Hall, (Tenn.1999); State v. 8 S.W.3d 593 State Hall, (Tenn. 1998); S.W.2d 679 v. 958 State Middlebrooks, (Tenn.1999); S.W.2d 550 v. 995 Mann, (Tenn. 1997); ‍​​‌​‌​​​​‌‌​​​​​‌​‌‌‌​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​​​​​‍v. 959 S.W.2d State Smith, (Tenn.1999); 993 S.W.2d State v. 1997). Burns, (Tenn.1998); State v. Pike, (Tenn.1998); 978 S.W.2d 904 State Nesbit, (Tenn.1998); Simply prejudicial because evidence is No. C.C.A. 02C01-9711-CC-00449 does mean the evidence must be ex- (No. Below) SHELBY COUNTY cluded as a matter of law. See (ESPE- Carolyn Blackett Honorable Wade Gentry, 881 (Tenn.Crim.App. CIALLY AGGRAVATED ROBBERY and 1993). Courts must still determine the - FELONY MURDER DEATH PENAL- relevance of the photograph weigh and its TY) probative against any value undue preju- dice. 15,1999. FILED: OPINION March Banks, In State v.

AFFIRMED (Tenn.1978), our supreme recognized court WADE, R. Presiding Judge. GARY inherently prеjudicial “the character of depictions

photographic of a murder vic- adopting tim. ...” In Federal Rule of Evi- OPINION admissibility, dence 403 as its test for Background [Sections on and Sufficien- suggested variety court a of factors for cy Deleted] of the Evidence by consideration the trial judge. The “val- evidence, photographs

ue of ... their accuracy clarity they and ... whether II were corpse taken before the was moved Next, the defendant contends that inadequacy ... of the [and] testimonial erroneously trial court a photo- admitted in relating jury” evidence the facts to the graph of the victim as he was found on the appropriate are factors. Id. photo depicts street. The lying victim face The pants admissibility photo- down. His had been lowered to of relevant ankle graphs level. The defendant insists that of the victim is within the sound photo question “the proba- was void of judge, discretion of the trial and his her or weight packed tive full of impermissi- admissibility on ruling will not be dis- inflammatory ble and content.” appeal turbed on showing absent clear Banks, an of that abuse discretion. “any Evidence is relevant if it has ten- S.W.2d at 949. v. Bigbee, See also State dency any to make the existence of fact (Tenn.1994); consequence that is of to the determination Tran, (Tenn. Van probable proba- action more or less 1993). than ble it would be without the evidence.” TenmR.Evid. 401. Rule Tenn. at photograph clearly The issue is rele- R.Evid., however, provides that relevant vant. prove, The state had to notwith- may evidence be excluded in certain situa- confession, standing the defendant’s tions: during the defendant killed the victim an attempt especially aggravat- to commit an Exclusion of Relevant Evidence on robbery. photograph suggests ed The Confusion, Prejudice, Grounds of or that the victim in the was shot back caus- relevant, Although Waste of Time. him to fall face down. As the state may evidence be excluded if pro- its trial, argued pants the victim’s could substantially bative value is out- dropped prevent have been to his ankles to weighed by danger of unfair issues, fleeing resisting him from or otherwise prejudice, confusion of the or during robbery. Although portion jury, byor misleading the consider- nude, time, body is neither the wounds nor delay, ations of undue waste of photo in the at issue. presentation highlighted or needless of cumula- blood are photograph particularly tive evidence. relevant as interview, testified that the the details of the incrimi- conducted corroborative of rights nating made of his before statement the defendant. defendant advised assessment, interrogation. value probative In our She testified rights, outweighs any prejudicial acknowledged agreed his undue effect. defendant coerced, talk, threatened, was not claim, As a collateral also defendant his promised anything or return for photo- contends that the admission Ms. did not remember answers. Flowers graph right into violated his singed sepa- the defendant had whether process right due his free from he rights” rate “advice form whether See U.S. punishment. cruel unusual transcript read the of the interview had Const, VIII, XIV. amend. We do not presence. her inflam- agree. photograph so not suppression hearing, At the the defen- to matory as cause the to convict out had been questioned dant claimed that he facts, or passion caprice. this in- by the officers and had previously context, any do not form for a claim basis give them not a formed that he did want to or punishment. of cruel unusual He had not statement. asserted he rights been advised of his and did not Ill why being to understand he was forced a give statement. The defendant testified The defendant also claims the statement Sgt. Woods and two other officers to gave police he was the result of him struck on the head several times coercion and force and have should not telephone alleged a book. The defendant been at trial. disagree. admitted We that the officers forced the confession and At the hearing sup- on motion to transcript. written He insists that Ms. press, Lt. L. Nichols Mem- James of the gave testimony. Flowers false phis he Department testified that Police. cross-examination, the defendant ad- On Sergeant assisted D.E. in the Au- Woods custody time mitted that he was at that 20, 1994, gust interrogation the defen- and attempted robbery attempted on an dant. Lt. Nichols recalled that the defen- charge stemming sepa- murder from the rights dant was informed of his Miranda incident on rate which had occurred earlier any questions before were Ac- submitted. night as the murder. The defen- same Nichols, to cording Lt. un- defendant dant, pled charges guilty who had to those rights derstood his and make a wished to a hearing, gave to this stated that he to Lt. police. statement stated Nichols relating to the earlier incident statement Sergeant that neither he nor Woods gave at about the same time he the state- any coerced or threatened the defendant ment in this case. The defendant testified way promised anything and never him to talk that he was beaten and forced exchange for his statement. He described conceded, He during both interviews. freely voluntarily the statement as and however, that these bring he failed statement, made given. judge to the attention of trial claims interview, during forty-five a minute accepted guilty pleas attempted who signed by and the de- writing reduced especially aggravat- and attempted murder Nichols, Lt. fendant. who described robbery. the sub- during ed When asked reasonably not intelligent, defendant did the defendant asserted hearing, mission signed remember whether defendant given voluntarily that he had the state- separate rights” “advice of document. or being ment without coerced threatened. Flowers, being omission on his explained Elise who transcribed He Sgt. statement as Lt. Nichols out” his mother was Woods “stressed because by the defendant will Interestingly, Suppress the Motion to having problems. health Nevertheless, be denied this time.” acknowledged that he had been defendant a determina- implies denial of the motion gave he rights advised of his before voluntarily did tion that the defendant that he prior charges on the statement knowingly rights. waive his See House voluntarily understood and waived those (Tenn.Crim. State, 902, rights. App.1979). having physically denied Sgt. Woods Arizona, 436, In 384 U.S. Miranda any defendant at time verbally abused the (1966), 479, 86 S.Ct. 16 L.Ed.2d 694 during before or the interview on the felo- Supreme Court ruled the United States ny Sgt. murder. testified that he Woods interrogation, police that before custodial not rights, advised the defendant of his did officers must advise defendants defendant, suggest coerce the did right to remain silent and the right pro- the defendant should what answers warnings given, If these are not counsel. vide. elicited from a defendant is any statement the trial argument To his support Stansbury admissible in trial. v. Cali motion, denying his court erred 511 U.S. S.Ct. fornia, places primary emphasis on his defendant (1994). 293 A defendant’s 128 L.Ed.2d testimony that he beaten with a tele- was against counsel and self-incrimi rights to “advice of phone book and that the initial may long as as the waiv nation waived has been lost or mis- rights” document “voluntarily, knowingly, and er is made placed. Middlebrooks, 840 intelligently.” State v. (Tenn.1992). 317, The Fifth to deter- duty judge It is the of the trial right against Amendment self-incrimina mine voluntariness and the admissibili- only if done so volun may tion be waived ty pretrial of the defendant’s statement. tarily, intelligently. Mi knowingly, and 949, Pursley, v. 550 S.W.2d randa, In 86 S.Ct. 1602. 384 U.S. (Tenn.1977). The trial court’s determina- waiver, he for an accused to effect order knowingly given tion that a confession adequately apprised right of his must be voluntarily binding appellate on the and of de consequence remain silent and preponderates courts the evidence unless Stephenson, it. State v. ciding abandon Odom, v. 928 S.W.2d otherwise. State (Tenn.1994). In de 878 S.W.2d (Tenn.1996). “Questions credibility was vol termining whether the confession witnesses, weight and value of untary knowing, totality and evidence, resolution of conflicts must be examined. State circumstances the evidence are matters entrusted (Tenn.1997). Bush, 489, 500 942 S.W.2d Odom, fact.” judge as the trier of trial addition, party In “the 928 S.W.2d at 23. view, properly the trial court In our trial court entitled to prevailing in the conclu- Implicit the motion. denied evi- strongest legitimate view of the trial court is that the reached sion hearing suppression adduced at the testimony dence of the three witnesses legitimate than that of the as well as all reasonable more credible state was separate no may be drawn from there is inferences defendant. While form, judge did not the written rights” Id. The trial “advice of both evidence.” case, testimony sup- at ‍​​‌​‌​​​​‌‌​​​​​‌​‌‌‌​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​​​​​‍the fact in this and the explicit findings make statement time, hearing specifically demonstrate pression “At this on the simply stating, based of and the defendant was advised on the Court’s review that testimony and based evidence, talking police. before rights the waived his and other of the statements the trial judgment Accordingly, waiv- require a written “The law does court is affirmed. er,” record demonstrates long as the rights advised of his the defendant CONCUR: did, fact, waive them. (Tenn.1997).

Mann, 508, 580 WOODALL, JUDGE T. THOMAS Elrod, 721 S.W.2d also State See WILLIAMS, JUDGE EVERETT JOHN (absence of (Tenn.Crim.App.1986) require se per does not written waiver found from if can be waiver

suppression circumstances). The evi- surrounding preponderate simply does dence Odom, ruling. court’s See against the trial Thus, is with- at 23. the issue out merit. aggrava- Sufficiency of the

[Section IV. against mitigating evi- ting evidence dence, under death sentence review of 39-13-206(c) pro- § Ann. Tenn.Code portionality Deleted] review —

Case Details

Case Name: State v. Chalmers

Court Name: Tennessee Supreme Court

Date Published: Oct 5, 2000

Citation: 28 S.W.3d 913

Court Abbreviation: Tenn.