*1 Tennessee, Appellee, STATE of E. HALL and Derrick
William Quintero, Appellants.
D. Tennessee,
Supreme
at Nashville.
Sept. 1998.
Rehearing Denied Oct. *2 committing or engaged Roberts, Dickson, Davis Reese defendant Jennifer of, Clarksville, or accomplice in the commission Appellant was an Bagwell, Hall. commit, fleeing after attempting Weems, Defender, Shipp R. District Public commit, any attempting committing Stack, Defender, Public Steve Assistant *3 murder, arson, robbery, rape, first-degree Charlotte, Quintero. Appellant for piracy, larceny, kidnaping, aircraft burglary, Attorney Walkup, General and John Knox discharging placing or throwing, or unlawful Moore, Reporter, E. Solicitor Gener- Michael bomb, Tenn or Code of a device destructive Attorney al, Taylor, Gen- Darían B. Assistant (5) 39-2-203(i)(7) (1982); and the § Ann. eral, Nashville, Alsobrooks, Dan District M. by the committed murder was General, Atkins, Attorney Special J. Kenneth a custody or in lawful they were in while ,Assistant Prosecutor, Kirby Dis- James W. during confinement their or lawful place of General, Charlotte, Appel- Attorney for trict custody place of escape or from from lawful lee. § confinement, Ann. 39-2- lawful Tenn.Code (1982).1 203(i)(8) Finding that there were OPINION sufficiently mitigating sub- circumstances DROWOTA, Justice. outweigh aggravating the circum- stantial to stances, jury the defendants the sentenced case, defendants, capital In this the Wil- by for the murder of death electrocution Hall, Jr., Eugene liam and Derrick Desmond Myrtle Vester. Quintero, by of were convicted two perpetration of the counts murder of of appeal to the Tennessee Court On direct grand degree burglary, of first three counts challenged Appeals, Criminal the defendants larceny, petit larceny one count of and three sentences. convictions and their both their degree burglary. For counts of first their found the evidence appellate court the larceny burglary, of and de- convictions support larceny convictions did not dual years eighty fendants each were sentenced to larceny convictions be petit ordered that the incarceration, which sentences were ordered merged larceny, convictions. grand with the consecutively run the life sentences appellate court affirmed The intermediate imposed their first for conviction of the de- degree first the defendants’ convictions of gree respect murder of Buford Vester. With imprisonment sentences of life murder and Vester, degree Myrtle to the first murder of electrocution, finding jury’s the death found established fol- ag- upon inapplicable erroneous reliance two (1) lowing aggravating circumstances: five (i)(6) (i)(7), circumstances, gravating previously the defendants were convicted of beyond a reasonable doubt. harmless use involving one or more felonies or § violence, § of 39-2- to Tenn.Code Ann. 39-13- threat Tenn.Code Ann. Pursuant (2) (1997 203(i)(2) 206(a)(1) (1982); especial- Repl.),2 case docket- the murder was heinous, The defendants have ly cruel in that it in- ed in this Court. atrocious or mind, Af- in this Court. depravity or of Tenn. raised numerous issues volved torture record, 39-2-203(i)(5) (3) law, (1982); carefully examining § ter Code Ann. opinion of purpose thorough of murder committed for the with, Appeals, we have avoiding, interfering preventing or a Criminal determined require assignments of error prosecution or none of the lawful arrest themselves 39-2-203(i)(6) others, § have also concluded that Ann. reversal. We Tenn.Code (4) finding (1982); Appeals committed while Court of Criminal erred the murder was aggravating and the sentence of These are now codi- affirmance the conviction circumstances 39-13-204(i)(2);and automatically fied (5)-(8) Tenn.Code Ann. reviewed shall death (1997 Repl.). Supreme Upon Court. the affirmance Tennessee Appeals, shall the Court Criminal clerk imposed penalty the death 2. "Whenever Supreme Court case in the docket the degree judgment when has first murder and proceed in accordance with the Ten- case shall court, in the trial the defendant become final Appellate Rules Procedure." nessee appeal right of direct from trial shall have Appeals. court to the Court of Criminal support Zachery Pallay, the evidence insufficient a resident of the Leather- (i)(6) that, circumstance, community, aggravating warning wood and accord- probably ingly jury’s familiar with the area and would finding reinstate the of that cir- refuge depart- seek there. The Sheriffs cumstance. The evidence is sufficient to reports suspi- also several support jury’s ment’s received findings as to the re- cious individuals the Leatherwood area maining aggravating circumstances and the including report attempting of three men mitigating Finally circumstances. we hold However, flag down a car. when rash of the sentences of death are not arbi- burglaries broke out in the Leatherwood trary disproportionate to the sentences community, department cases, the Sheriffs became imposed in considering similar escapees convinced that the were in the area. nature of the crime the defendant. Ac- *4 burglarized residences in Stewart Coun- cordingly, judgment of the Court of Foster, McMinn, ty by were owned Jim Neal Appeals upholding Criminal the defendants’ Harris, Settles, Cherry, Essie Alfred Thomas by convictions and sentences of death elec- Virginia and John Crawford. trocution is affirmed as modified. Though possible is not to determine
BACKGROUND precise from the record the order in which proof during occurred, introduced the State burglaries proof demon- guilt phase trial demonstrated that burglaries six strates that five of the oc- Myrtle and Buford in 19, Vester were murdered p.m. Sunday, 1:00 curred before on June community their home in the Leatherwood of 1988. County, Stewart which is situated on Ken- reported burglary The first and oc- tucky proximity Lake and close to the 18, day, That curred on June 1988. Jim Tennessee-Kentucky border. The Vesters Clarksville, Tennessee, McMinn of arrived at
were murdered sometime after them son left approxi- in the Leatherwood area at cabin p.m. Sunday, their at home 6:00 on June mately go fishing noon. He left the cabin to 1988 and sometime before their bodies were Upon p.m. 1:00 re- his boat at around neighbor discovered their around 10:00 turning p.m., 3:00 to the cabin at 2:30 or 22,1988. Wednesday, a.m. on June shotgun lying McMinn noticed a box of shells men, Along with six other the defendants on the floor and discovered that his loaded appeal, in this pistol missing Derrick and William .22 from the caliber bed- Hall, escaped Kentucky Peni- from the telephone room. The his cabin had been tentiary Eddyville during early wall, por- at morn- removed from the and the outside ing hours of June 1988. Three of the phone tion of the line also had been severed. escapees3 apprehended vicinity were McMinn went to his truck and discovered prison of the on or before June 1988. up that the windows had been rolled and the However, escapees, including the other five ignition destroyed with his ax. The tele- Hall, Blanton, Quintero, Joseph James Mont- phone from McMinn’s cabin was in the bed of gomery, and Ronnie Hudson left the area the truck. pick-up they a 1966 Chevrolet truck which Following report of the McMinn bur- Rogers stole from Curtis who lived about Department glary on June Sheriffs prison facility. one-half of mile from the area, search of the uti- initiated an intensive vehicles, County department lizing helicopters, four-wheel drive
The Stewart Sheriffs tracking dogs. point at a.m. 16 that At one law enforce- was notified 2:30 on June escaped penitentiary on inmates had from the at ment officers chased some individuals foot woods, they Eddyville. escape through but were not able to After news public, persons suspected been broadcast overtake the to be the Sheriffs department telephone escapees. call from received Sherman, Bobby Sperling, Floyd Leo 4. The truck was located seventeen months after escape County, in a wooded area of Stewart Cook. completely Tennessee. It had been covered with branches. possession chase, had in their Montgomery point, perhaps
At some pistol and .22 Montgomery separated .22 caliber Hudson and became McMinn’s caliber another pistol from the defendants and Blanton. Hudson been stolen from which had community, Montgomery left the Leatherwood com- Leatherwood resident Lebanon, Kentucky in a munity and drove to rounds were recov- Neal Foster. Two five spent Fairmont stole from White Ford pistol, and four ered from Foster’s Settles, Standing Essie a resident of the in the area. While shells recovered approximately six Community, Rock which is Mont- Hudson and proof demonstrated highway miles from com- the Leatherwood away miles hundred gomery were some two munity. Montgomery’s fingerprint was Lebanon, Kentucky Vesters when the garage found Hudson’s fin- on Settles’ door. County, Tennes- were murdered Stewart gerprint was found inside the car when it see, the McMinn and it also showed that was later recovered. had seen the Settles p.m. before 1:00 burglaries occurred Foster garage ear in on Satur- her around 10:00a.m. on June 19. morning day discovered that it was miss- Cherry burglaries were and Harris ing approximately p.m. Sunday 1:30 p.m. 4:00 on June 3:00 or discovered around afternoon. The demonstrated Cherry’s Cherry. trailer 1988 Alfred night Saturday car was stolen sometime *5 a mile approximately one-half of was located daylight Sunday morning. before on Burned from victims’ residence. The the murder garage matches were inside the indi- found A disarray. of the trailer was bed inside it cating that had been dark when the theft wet towels was unmade and were addition, occurred. her when she watered light refrigerator switch had bathroom. The Sunday morning, around 8:00 a.m. on flowers prohibit light taped from been down Settles noticed that someone had removed operating refrigerator door was when during the hose from the outside faucet set opened. The hot water tank had been on night. Settles stated that the hose had been high. Saturday connected when she had used on evening p.m. around 6:00 Missing from the trailer were two bed- Montgomery and at Hud- Hudson arrived blanket, sleeping spreads, green a thermal a Lebanon, apartment son’s Ken- brother’s radio, bag, approximately fifteen portable a
tucky Sunday, approximately on June tapes, rechargeable flashlight, a a cassette They p.m. driving 1:00 a car were white knives, handsaw, mugs, small six coffee vari- plates, Tennessee license which witnesses goods, gallon a of homemade ous canned identified at trial as the vehicle which had bourbon, wine, six-pack a two bottles been Hudson’s stolen from Settles. brother underwear, beer, toothbrush, pa- and two a accompanied escapees and a the two friend perweights bearing the Electric Cumberland a secluded area on river where Hudson logo.5 Montgomery among and hid car the stolen telephone in Cherry did not have a his p.m., 6:30 the weeds. Around 6:00 or Hud- Upon discovering burglary, he trailer. escapees son’s brother left two police to call the on the went next door company of Hudson’s mother sister. and telephone the trailer owned broth- sister, day, chil- Hudson’s her two next er-in-law, Cherry Thomas Harris. discover- dren, picked up and Martha Grover two burglar- trailer had also been ed that Hams’ escapees transported them to Grover’s ized. The trailer had ransacked. The been early apartment stayed where until eve- refrigerator light had removed. The been following ning Tuesday, June 21. The on dishes, dirty full and food sink was Kentucky day, Wednesday, authori- June towels and sheets a skillet on the stove. Wet apprehended both Hudson and Mont- ties cigarette burns were were strewn about gomery location where car near the Settles’ exchanged all the floors. Stolen the trailer were over had been hidden. Shots items, quilts, two apprehension. Hudson were all canned food prior to the convicts’ Eddy- escapees had stolen near paperweights seventeen truck which the 5. These were found community. to the Leatherwood Chevrolet ville and driven later in the bed of the 1966 months silverware, knives, towels, towels, socks, box, pair butcher toilet arti- a a .22 caliber shell cles, fishing tackle. gauge shotgun and a 20 shell. The beds spread top were unmade and had items telephone When Harris later received his them. The master bedroom dresser drawers bill, he realized that several unauthorized open, were all items scattered long telephone placed distance calls had been bedroom, including around the two walkie- from his trailer. Three of the unauthorized talkies, hacksaw, gauge shotgun a 12 placed calls had been Spring- to a number in bedroom, In the barrel. front he found sev- town, Texas. These calls occurred on Sun- hats, matchbooks, jar eral of marshmallow day, a.m., June at 3:51 8:55 a.m. and 9:19 cream, crackers, graham a box of and a small a.m. Two additional unauthorized calls were drinking glass. placed telephone to a in Hopewell, number Pennsylvania, at 4:00 a.m. and 9:19 a.m. The In a walk-in closet in the residence Foster telephone in Springtown, number called Tex- kept pistol, .22 a .22 caliber a Glenfield as, Bryan Quintero, was listed to who is a rifle, caliber a Marlin .30-30 caliber lever Quintero. brother telephone of Derrick rifle, gauge shotgun, single action a 20 shot Hopewell, Pennsylvania, number called in shotgun, Remington and a Model Vasser, was listed to a Barbara William gauge Following burglary, shotgun. he girlfriend. Hall’s shotgun lying gauge found the 12 on his bed. trial, At Vasser that Hall testified told her attempted Someone had to saw off the barrel telephone their first conversation af- gun inoperable. and had rendered escape ter parole that his had been de- gauge shotgun missing from his nied. Hall would reveal to Vasser his house, portion gun’s but a barrel had location, Quintero’s but told Vasser that been sawed off and left Foster’s bedroom. helicopters there were searching area *6 missing burglary Also after the were his .30- escapees Quintero for the and that he and 30 lever vari- action rifle and ammunition for separated had been from Hudson and Mont- weapons, including ri- ous .30-30 accelerator gomery. bullets, shells, fle rifle .30-30 caliber Cherry
Two shells, knives taken from the trailer gauge shotgun gauge shotgun and 12 were at ammunition, found Neal Foster’s residence indi- shells. addition to the sever- cating burglarized that it was collected, sometime after including al had coins Foster Cherry Again, and Harris dollars, trailers. how- burglary. silver were taken ever, burglary occurred sometime before prints The authorities found several latent p.m 1:00 on Montgomery June because residence, at the Foster and identified some possession and Hudson gun had their a belonging escapees. of them as to the A which had been stolen from the Foster resi- print matching latent left thumb that of they apprehended. dence when were Quintero was found on a full box of Federal However, Foster did not discover the bur- gauge shotgun A right ring shells. latent glary Tuesday, until 21. June The residence fingerprint matching Quintero that of had been ransacked. Food was on a kitchen gauge shotgun on found another Federal counter, microwave, deer were in the steaks right finger right shell box. A middle and a sitting and his binoculars were on a kitchen fingerprint matching print index Blanton’s box, green plastic counter. A ammunition a gauge was found on a Federal field load 12 coins, bag flashlight, full of old a and the shotgun palm right print shell box. A pistol his .22 holster for caliber RG were on matching that of was lifted from living hallway the floor of the room. The gun right ring one of the barrels. A latent can, Pepsi floor was littered with a Diet a tin fingerprint matching that of Hall was lifted coins, can of old a notebook that once had old Pepsi a from Diet can. it, socks, laundry coins in some a basket him, belong pair Though burglary clothes that did not and a the Crawford belong of white tennis shoes that did not discovered until after the had Vesters’ bodies discovered, him. glove Towels were strewn around the house. been a taken from the knife, pocket a He found his bathroom Crawford residence was found at the home of bread, colas, meat, and milk. victims, lunch indicating Pepsi that the bur- the murder parents on his home Sun- Wayne left actually Vester glary before the murder. occurred p.m. At 6:00 day, approximately June was less than a Crawford residence time, alive and well. the Vesters were quarter a home. of mile from Vesters’ unsuccessfully, to reach attempted, Wayne them Virginia Crawford had left John and Monday, by telephone once on his parents trailer, orderly, p.m. clean and 2:00 around 21. Tuesday, on June June and twice June, burgla- Sunday, Following on neighbor, Concerned, Wayne called their ry, they found their kitchen ransacked. Allor, approximately lived one who Howard foods, crackers, candy bars from Canned Vesters, but Allor quarter of mile from the a refrigerator the cabinet and had been eaten. preceding Fri- them since the had not seen Prints were lifted several items unable day morning. Wayne When was still print matching A left trailer. latent thumb again he parents on June reach that of Hall found on the bottom of can on Allor and him to check them. called asked right fingerprint ham. A index left latent to the Vesters’ residence Allor drove Butterfinger by Blanton was lifted from a attempted He discovered their dead bodies. candy wrapper refrigerator. found inside the residence, from their telephone the Sheriff gloves two found at The Crawfords identified functioning, he so telephone was not but trailer, jersey and brown one white one reported the murders returned home and jersey, belonging to Mrs. Crawford. A the authorities. gloves patch on one of the had been sewn on Hicks, County, David Sheriff Stewart Crawford. Mr. Crawford testified Mrs. ap- of the Vester murders at flashlight was notified also been taken from the Wednesday, proximately 1:00 gloves p.m. or 1:30 trailer. One of the found at the Craw- 22. The Tennessee Bureau of Investi- June glove fords’ trailer matched found outside (“T.B.I.”) in- gation primary conducted A the Vesters’ front bedroom window. fiber vestigation of the crime scene. analysis gloves two indicated that the Vester residence was entrance to likely pah’. originally together sold as a located at the side of house screen door murder, respect timing With opposite the victims’ bedrooms. Monday that late on eve- showed damaged. door had not been Howev- screen ning, Arthur June John Corlew and Jen- er, open, and the the front window was *7 dock, kins arrived at the Leatherwood boat lying window from the front was screen boat, night launched their fished Myrtle ground near Vester’s bedroom Bay. p.m. Leatherwood Between 11:00 back of the window which was located gunshots they 12:00 five a.m. heard emanat- window a house. Underneath front ing from the direction of the Vesters’ resi- had apparently which been concrete block dence. Corlew testified that he first heard from the front of a shed located at the taken clear, fairly gunshots two that were and after glove A cloth which back of the house. shots, pause, he an- a heard two additional glove a found at Crawfords’ matched pause, final other and one shot. Corlew ground found on the beside residence was the first two shots and the testified Pepsi unopened An cola block. concrete shots sounded as if were second two walkway lay to the screen can next weapons. Mr. Jenkins testi- from different packages Pepsi of the house. The door fied that the two initial shots sounded like Wayne brought par- his cola that Vester had repercussions pistol. from Both Jenkins a missing porch. The Ves- ents were gunshots. a heard total of five Corlew Bonneville also ters’ maroon 1985 Pontiac Vester, victims, Myrtle missing. telephone Buford The wires p.m. on last seen alive around 6:00 connection box outside the Vesters’ residence Wayne. He, A Sunday damaged their son and the line was dead. June had been son, shotgun along twelve-year-old gauge had ar- shell with his Federal live lying near the parents’ his home for a weekend visit number 6 bird shot was found rived at Friday, spent gauge 17. He A number evening of June electrical box. on the shotgun casing shell was found groceries parents including shot Federal picked up near approximately the shed gauge 18 feet from Tennessean mail. A live 20 shot- Mr. Vester’s back bedroom window. gun shell with number 7.5 shot was found lying on the floor in the front next bedroom The windows to the victims’ bedrooms jewelry to a ransacked box. along were located the back of the house. Buford Vester’s bedroom window frame was Harlan, examiner, Dr. Charles the medical visibly bent. The covering screen win- performed autopsy on each victim and dow had a in it hole indicated Mr. testified that the Vesters had died within two Vester was shot at least once from outside consuming, hours dinner. He stated that the house. glass Some the louvers were the victims had shot a been total five broken, glass and shards of lying were found times, and a minimum of three different on the bed. Mr. body Vester’s was found on weapons had been used murder them. the floor next to his bed. The covers were back, drawn pillow and blood was on both the gunshot Mrs. Vester had sustained three and the bed. Number 4 and 5 bird shot A, wounds. Gunshot wound located at the pellets were retrieved from Mr. Vester’s portion just right of Mrs. Vester’s chest be- room. Two shot shell filler wads were found collarbone, approximately low her measured body, beside Mr. gauge Vester’s and a 20 quarter basically of an inch and was round plastic shot wad was recovered from beside shape. cop- This wound resulted when a sleeve, plastic his head. A shot one shot per jacketed bullet entered Mrs. Vester’s shell, wad, plastic shot and several shot body lodged in her left arm. B Wound pellets, shot, all either number 4 or 5 bird shotgun resulted from a blast and was locat- were recovered from Mr. body. Vester’s upper ed arm. This wound measured The victims were in separate bedrooms inches, 3.4 jagged, inches 1.8 with an joined by Myrtle a bathroom. body Vester’s irregular edge, multiple and had associated lying was found in a pool of dried blood on tangential abrasions. Wound C resulted the floor of her bedroom next to the bath- high-velocity shotgun. from either a rifle or room. Mrs. Vester had been shot three gunshot This blast had severed the two times, gauge shotgun, once with a 20 once forearm, right leaving bones in Mrs. Vester’s rifle, high-powered with a again and once body by her hand and wrist attached to her shotgun high-powered with either a or a rifle. tissue, skin, piece consisting mus- She also had been stabbed thirteen times. A cle, and fat. Dr. Harlan could not determine copper-jacketed bullet was recovered from gunshot order which these three body. her Blood was found on Mrs. Vester’s wounds were inflicted. bed, considerable amount of blood was
found on the bathroom floor. Mrs. Vester also had sustained thirteen Blood was wounds, splattered on both the bathtub and the com- stab one to the of her middle back mode, head, neck, and the bottoms of Mrs. Vester’s feet and twelve to her and shoulder *8 also were covered in blood. The screen cov- region. A majority of the stab wounds were ering Mrs. Vester’s bedroom window also inflicted to the left head side her and neck. it, a indicating had hole in that at least one Dr. puncture Harlan surmised that shot open had been fired from outside. The by squared object wounds a were made glass and unbroken condition of the louvers sharp a edge, hunting such as a kitchen or high-powered indicated that the rifle or shot- knife. Two of the stab wounds severed her gun had been near the window when it was right and left common carotid arteries. The house, sprayed fired. Shot was all over the severed, right artery percent carotid was 90 especially pellets the kitchen. All of the shot percent and the left was 10 severed. Dr. found the house were either number injuries Harlan testified that either the to gunshot injury her carotid arteries or the to right her forearm have would been fatal.
On the victims’ sofa authorities found a Tennessean, Dr. portion Monday, of The Harlan determined that Mrs. dated Vester mail could have up June 1988. The local carrier testi- survived the brutal attack for fied that the victims did not receive The to 15 minutes. parking in the funeral home’s gunshot tiac
Mr. had Bonneville Vester sustained two description of vehicle matched the Shotgun at lot. The wounds. wound A located keys juncture. The were and neck The total dis- vehicle. head the victims’ found a sawed-off persal shotgun pellets was 13 The officers pattern ignition. car’s injury containing one live round significant shotgun A caused gauge inches. Wound aorta, seat lung, pulmonary artery. his the driver’s to left floor mat behind under the Shotgun right weapon B was to Mr. wound Vester’s as the was later identified right lung residence, his breast and caused trauma to and as the stolen from the Foster liver. Dr. his Harlan recovered shot- spent found out- weapon from which a shell gun pellets and a shot column Mr. had fired. residence been side the Vesters’ chest and Dr. Harlan Vester’s abdomen. identify weapon its Foster was able opined however, that Mr. Vester could have survived number; gun also had serial sustaining from four to twelve minutes after it. The police into full name carved Foster’s gunshot injuries. a a floor mat .30-30 discovered under also matched ammunition cartridge which caliber a.m., employ- June On around 8 resi- from the Foster that had been taken Memphis of the Funeral Home observed ees crumpled a Budweiser beer From dence. men, in a three maroon Pontiac which back seat was found under the can which also car, later identified as the victims’ enter prints lift three latent police were able to parking park funeral home lot the car belonging prints to Blanton. No other were building. approximately 250 feet from the found in the car. The officer noted employees Two of the funeral home testified Memphis at extremely temperatures in hot seat, got that one man out of front took the car it difficult the time was found made off, top put tank on three additional prints. lift retrieved intact Other items shirts. The two other men also exited the Eay-O-Vae included a flash- from the vehicle car. None witnesses could make light, one taken from the Crawford similar to positive identification of three men. The residence, tape, gauge electrical thirteen that all men witnesses testified three colas, shells, Pepsi shotgun three 12-ounce height, and about the but two of white same colas, Pepsi portable 12-pack elec- one approximately pounds the men were & car compressor, air a Black Decker tric They had darker hair. stated that all three vacuum, and a brown umbrella. men facial hair. funeral em- One home ployee having men described the three Jones, security guard Curtis who was long beards and stated that one had hair. station, Greyhound Memphis bus testi- Tuesdays that he worked and Wednes- fied parking men remained lot three days at the bus station of 1988-. June approximately eight five minutes. station, Memphis bus located downtown Then, something after one them took out approximately one mile from Mem- trunk, men the three walked towards job prevent phis Funeral Home. His was to hospital across the street from the funeral loitering at the bus Mr. sat station. Jones turned, home. One the men walked back who came inside people a booth and observed car, appeared placed have they purchased tickets. to determine whether joined back the car. then item into He Periodically, he would walk around and ask men, other and then all three walked two they if people whether had tickets or away. employees assumed funeral home *9 waiting for someone were to arrive. a working men on con- that the three were However, project hospital. at the struction entering men Mr. recalled three Jones car had when the not been removed Tuesday, either or Wed- bus station June employees Thursday, funeral con- home nesday, p.m. between 11 a.m. and 1 June Memphis Department. Police tacted the Two of the men sat down and watched televi- spoke men to a morning Thursday, sion. of the two seated On the June One man, respond- nearby. The had Memphis Squad man seated third who Police Crime Scene Hispanic, a Memphis appeared skin and used call from the Funeral darker ed telephone. approached police a maroon Pon- Mr. Jones the two Home. The found 1985 they seated men and asked them whether tof came out from the of the then back man, A pretended had tickets. whom he identified as and the tele- establishment use Blanton, they told him that would leave as phone. Christof commented that the When using soon as their friend finished the tele- escapees three men resembled the from the phone. The three men in the prison, remained sta- Kentucky they then left. Morrow five to ten tion minutes. Later that same police. contacted the day, Memphis police stopped the bus pre-trial photographic shown a ar- When station with a photographic line-up of the ray eight escapees, of the Morrow identified eight escapees. responded Jones that Blan- Blanton, Quintero, and Hall men as the three ton and Hall previously had been at the who had visited the bookstore. Morrow week, spoke station. Later Jones to the turned over authorities the six silver Agent T.B.I. Stout. Jones Blanton identified men, purchased dollars she from the and Hall photographic line-up from a later, Foster identified the those coins as an in-court made identification Hall as one stolen also residence. Morrow of the men at the bus station. made an in-court identification of both The Blue Movies West adult bookstore and Quintero and Hall. entertainment center was located across the Pryor, employee Lt. an at the Thomas Shirley street from the bus station. Denise Eddyville Quinte- penitentiary, testified that Morrow testified that as a she worked cash- hair, long moustache, long a ro had side ier bookstore in of 1988. On June goatee prior escape. Lt. burns and a Tuesday, day June her birth- before Pryor Hall stated he had never seen day, three men entered the bookstore around with a beard. 9:00 10:00 a.m. men Two of the were Paso, eventually captured Hall was in El white, appeared and one Mexican. The men Quintero Texas. Both Blanton and were traded few silver half dollars and dollars captured Mexico El near Paso. Barbara purchased for tokens. Morrow also some of Vasser, time, girlfriend Hall’s at the testified the silver dollars and half dollars herself. Pennsylvania mother her called the The men went to the back of the establish- State Police after Hall called her for a third Christof, to watch ment movies. Darlene following escape. time Afraid for Hall’s establishment, dancer testified that safety, notified the Vasser authorities “scruffy” three men her entered booth on agreed money she had wire to him at the white, 21. Two of June the men were Western on North Stanton Union Street appeared other Hispanic either or Mexi- Paso, apprehended by El Hall Texas. Ms. can. Christof informed the men that agents Investiga- of the Federal Bureau of only one was allowed to remain the booth. (“F.B.I.”) tion when he entered the Western photographic Two men left. From a p.m. approximately Union in El Paso at 2:20 line-up, she identified the man who remained 6,1988. July Quintero. Quintero booth as her later 10, 1988, Quintero July On and Blanton her gave several silver and tried to dollars apprehended by Mexican officials at ring wedding her a class sell and a man’s Juarez, just Hotel in Santa Fe located across band. Paso, Texas, from El the border and trans- The men then returned to the front of the ported bridge. across international approximately establishment fifteen twen- agents custody F.B.I. took of both minutes ty They attempted later. to sell from Mexican bor- Blanton officials at a appeared ring Morrow what be a class Quintero’s checkpoint. posses- der Found wedding sug- band. Morrow declined custody sion when he was taken into an they try pawn gested shop. One of the bearing imprint Fos- old wallet of Neal men indicated that not have did ter’s license. driver’s fifty identification and offered Morrow dol- *10 above, stay if she upon lars would allow them to Based summarized transportation Quintero house until their ar- of movie convicted both Hall and perpetra- Morrow declined their offer. Chris- of murder rived. two counts also prison and was GED degree burglary, obtained his of three counts of tion first conditioning refrigeration and air larceny grand larceny, petit of and enrolled one count had Quintero that They believed degree burglary.6 classes. three counts of first something make would improved himself and During sentencing the State phase, of his life. productive Quintero and Hall proof that both introduced involving for crimes previous had convictions Alva, cousin, testified Angela Quintero’s The State use or threat of violence. very time were at one Quintero that she and Quintero previously showed that had been Quintero’s par- how related close. She also escape charges two of in the first convicted of alcohol, and testified had ents abused degree charge degree one of first and rob- Quintero kept company older with his had bery. presented proof that The State also brother, Roderick, was a bad influence who sepa- previous Hall had for convictions two According to good and a role model. not assaults, endangerment rate wanton follower, Alva, and Quintero was a Roderick degree, aiding abetting in and and first aggressive. was and Vice threatening the life of the President Helen was of deposition shown A video America. President of United States Johnson, grade first Quintero’s Mimms Finally, introduced additional the State Quintero was teacher. Johnson testified concerning photographs testimony and Mrs. held mean. He was but never mischievous body. lying found Vester’s Mrs. Vester was being attentive year back a and had trouble just in her outside the bathroom. bedroom Quintero very and never clean class. was photographs depicting introduced The State he came always seemed exhausted when the amount of blood on the bathroom floor par- Quintero’s never met school. Johnson depicting the and blood on the bottoms of any par- attended ents because never Mrs. Vester’s feet. State also intro- meetings. ent-teacher photograph duced of the front Mrs. son, 15-year-old her Angela Holland and body Vester’s to demonstrate II, Quintero Hol- testified. Roderick Kent brutality severity injuries of her Quintero’s brother had been married land attack. years. Holland and approximately for three Quintero presented mitigation, In the testi- Quinte- with her had maintained contact son aunt, Josey mony of his uncle and Paul ro said that he had been influential Quintero, Quintero’s parents who said stay out helping nephew his of trouble. constantly. Quintero’s would drank father presented the mitigation, William Hall away long stay periods from home for Hall, brother, testimony Robert of his older time, and his mother had extramarital af- prison said that defendant minister. Robert Quintero hungry fairs. love and Paducah, Kentucky. Their born in Hall was he uncle and aunt’s affection when visited his Hall was parents divorced when defendant Quintero Quintero home. Paul testified that years two old. Their father worked always eager approval to seek his gone periods of barge and was for extended Quintero’s par- gave him trouble. never throat cancer Their mother died of time. discipline did not their children unless ents four, Hall was and at that when defendant drunk, angry at which time they were with father and point, Hall went live his Testimony they would beat the children. stepmother at one stepmother. Hall’s Quintero never had indicated that also addicted to codeine. time him, properly fit clothes result, he the other children was ridiculed Robert, According to the Hall children at school. taught right disciplined nor Defen- they wrong sometimes beaten. Josey Quintero but were testified
Paul and grade getting into trouble in began Hall attempted remain in contact dant had in his began drinking alcohol Quintero learning the criminal school. He since twenties, early he had pre-teens, and They charges. related that degree and sentenced death. first murder 6. Blanton was tried convicted separately *11 begun abusing drugs. Moreover, Robert malingering. testified that Hall was enthusias- follower, William Hall was a not a plans leader. tic about pursue college his courses computers processing and data in- while For a following parole time his carcerated. defendant Hall had lived with Robert and his Pennsylvania. wife Ester in He worked with I.Q. Hall scored a 99 on his test which shop Robert at a tire and attended church placed percentile. him in the 48th Dr. An- with Robert and Ester. Robert testified that although chor testified that Hall has a rea- Hall changed had turned to God and his life. intelligence, sonable amount of he has some Hall lived with Robert eight and Ester for difficulty utilizing experiences cogni- it. Hall Hall, however, months. later moved into a tive frequently interference which is seen place trailer near employment his people habitually drugs who have abused began drinking. Eventually, he returned to alcohol. Dr. judgment, Anchor found Hall’s Kentucky. The last time Robert and Ester reasoning, problem-solving skills had seen Hall stepmother’s was at his funeral Anchor, According “unstable.” Dr. They speak weekly with him finding history composed is consistent with a telephone, however. injuries of head polysub- and substance or Barbara Vasser also testified. She had stanee abuse. met Hall when he had lived with his brother Dr. seriously Anchor concluded that Hall is Pennsylvania. Vasser said that Hall’s life maladjusted organic person- and suffers from changed after accepted he Christ. She ality syndrome. per- Dr. Anchor'stated that engaged and Hall were but never set a date profiles sons with test similar to Hall’s usual- because years Vasser was seventeen old ly strong have a sense of worthlessness and at the time. Vasser testified that she and shame, inferiority. deep Hall feels a sense Hall were friends off and on between 1982 embarrassment, many and humiliation for and 1988. Vasser said she had assisted the past his actions. Dr. opined Anchor authorities because she had been afraid for psychological maladjustmént Hall’s can be safety. Hall’s Vasser had not remained in effectively treated counseling psycho- contact with Hall after apprehension. trial, therapy. At the time of Dr. Anchor Anchor, Dr. Kenneth profes- an associate stated present danger that Hall did not sor of psychology at Vanderbilt and a clinical either to prison himself or to others in a psychologist, prepared testified that he setting. opined Dr. prog- Anchor that Hall’s psychological evaluation of inHall 1991. He good assuming nosis was he abstained from background testified as to the information future abuse. Dr. substance Anchor conclud- conveyed by Hall Hall interview. educational, social, prospects ed that the grew Paducah, up in and his formal edu- satisfactory. functioning and vocational grade. cation ended after the ninth He later rebuttal, presented the State the testi- earned his GED while incarcerated. Hall mony Craddock, of Dr. Samuel a clinical began using drugs age and alcohol at eleven psychologist at Middle Tennessee Mental by age was addicted to Valium fourteen. Heath Institute. Dr. interviewed Craddock placed juvenile He detention several disagreed Hall and with Dr. Anchor as to the youth
times and was sent to a development degree danger poses. Hall Dr. Craddock jobs center. Hall worked at different while a further any testified that he had seen adult, young mostly but he had been in and data support finding that Hall suffered prison out of age since seventeen. Hall in- organic personality syndrome. from an formed Dr. Anchor that experienced he had injuries. two head porch He fell off a as a upon proof, Based found five baby and was struck in the head with a aggravating circumstances which were not baseball bat when he was fourteen. outweighed by mitigating circumstances and, coopera- therefore, Dr. Anchor testified that Hall was sentenced the defendants to responsive during tive and Myrtle the interview. death for the murder of Vester and to Hall attempt imprisonment did not offer excuses life for the murder of Buford blame others. There was no indication of Vester. *12 of him prosecution or prevent lawful arrest MURDER TO PREVENT ARREST See, e.g., State v. herself or another. or (i)(6) CIRCUMSTANCE AGGRAVATING (em- (Tenn.1993) Smith, 561, 580 argue Tenn.Code The defendants that killing of the it the motive that is phasizing 39-2-208(i)(6) unconstitutionally
Ann.
“is
factor).
critical
that is the
this case.”
vague
applied to the facts in
as
supports
amply
ease
proof in this
The
appellate
The
contend and the
defendants
The State
circumstance.
aggravating
this
no
the
proof
found that there was
that
court
the
murdered
that the defendants
theorized
prevent
the
ar-
defendants killed
victims to
being re
from
prevent the thefts
victims to
prosecution.
appel-
rest
The intermediate
or
theory.
proof supports this
ported. The
(i)(6)
inappli-
late court determined that
that
the defendants
The
showed
evidence
proof
that Mrs.
cable because “there was
burglarized several residences
area
knew the
would have
Vester
or
At the
murders were committed.
where the
identify
able to
them law enforce-
been
to
residences,
the defen
Cherry
Harris
ment officers.”
lights,
refrigerator
tampered
dants
with
reject
thereby
lights
the narrow
ar
from illuminat
preventing
We
construction
adopted by
gued
alerting
for
the defendants and
others to the defendants’
ing and
(i)(6)
residence,
only
applies
as well
appellate
court —that
At McMinn
presence.
home,
identify
knows
can
a defend
sev
when a victim
or
at
the defendants
the Vester
(i)(6)
lines,
Aggravating
pro
thereby preventing
telephone
ant.7
circumstance
ered
penalty
imposition
being
vides for
of
death
defendants
help from
summoned.
when:
and used
automobile
stole the Vesters’
together,
this
Memphis. Taken
travel
pur-
for the
murder
committed
[t]he
strongly
that the defendants
with,
proof
indicates
pose
avoiding,
pre-
interfering
of
or
being
attempting to
discovered
avoid
venting a
or
of
prosecution
lawful arrest
they
for
thefts
and arrested
the numerous
another;
the defendant or
in the Leatherwood area.
had committed
39-2-203(i)(6) (1982). By
§Ann.
Tenn.Code
terms,
(i)(6)
ag-
aggrava-
its
the statute does not limit the
jury’s application
only
gravating
those
strengthened
circumstance
instanc-
is
case
the fact
tor
prison.
es in which a
a victim be-
escaped
defendant kills
from
that
defendants
identify
the victim
or
cause
knows
can
above also estab-
The evidence recounted
example, a
to rob-
defendant. For
witness
were concerned
lishes that
the defendants
bery may
attempting
killed
to re-
avoiding apprehension
be
while
and arrest
perpetrator.
may
strain a masked
The mask
escape at the time of the murders.
effectively prevent
beyond
the witness
ever
doubt
could have found
a reasonable
if
identifying
perpetrator;
the evi-
but
murdered the victims so
defendants
perpetrator
killed
dence established that
their car to leave the
could steal
captured.
to flee the crime scene and avoid
find that
being
witness
and avoid
We
area
(i)(6)
arrest, application
appro-
support
of
would
is sufficient to
the evidence
(i)(6)
identify
ability
priate.
finding
aggravating
While the victim’s
of
cir-
jury’s
may
supporting
Accordingly,
the murderer
be evidence
we reverse the
cumstance.
(i)(6),
identify
inability to
finding
judgment
Appeals
a victim’s
of
Criminal
preclude
applica-
the murderer does not
its
of Crimi-
as to this issue. Because the Court
Appeals
tion if the evidence introduced establishes
nal
had found the error harmless
respect
change
purposes motivating
holding
mur-
in this
does not
that one of the
our
avoid,
with,
der
interfere
or
the result.8
desire
Bush,
1997),
(i)(6)
(Tenn.
ings
application
appropriate when
MURDER COMMITTED escape accomplished Odom’s was an fact—
DURING ESCAPE accompli a fait *13 (i)(8) AGGRAVATING CIRCUMSTANCE Id. at 27. argue defendants next that Tenn. Odom, Unlike the murder in the mur 39-2-203(i)(8)9 Code Ann. “is unconstitu ders in this case were committed tionally vague applied to the facts of this “during escape defendants from [their] lawful case.” The defendants further maintain that custody place or from a of lawful confine (i)(8) aggravating circumstance “was intend Indeed, ment.” these murders were commit protect ed to law enforcement officers.” The days ted four after the defendants fled State counters that the circumstance was Kentucky confinement in the de while
properly applied as the victims were killed process obtaining fendants were in the of while the process defendants in of escaping transporta Vesters’ automobile-—a means of to Mexico. While all members agree Indeed, Court that the in evidence this case tion to further escape. their support sufficient to jury’s finding of proof escapees shows that the had remained circumstance, aggravating this Justice Hold approximately an area two miles diame er dissents from the majority rationale of the ter until were able to steal automobiles (i)(8) and would hold that aggravating Moreover, escape. further their law en may circumstance applied any time the forcement actively canvassing officers were proof establishes that a murder was commit defendants, searching this small area for the by person ted a escape status. helicopters, tracking dogs, and four- interpretation statutory This broad of the attempt wheel drive vehicles an to locate aggravating recently circumstance was re- escapees community. in the Leatherwood jected by Odom, this plain language of the statute does not (Tenn.1996) (Anderson, C.J. support position the dissent’s that evidence Drowota, J., dissenting). In Odom the status, of a escapee defendant’s without murder occurred almost six weeks after the more, is support aggrava sufficient to this escaped defendant had Mississippi jail from a ting circumstance. Had General Assem where he serving a life sentence for bly intended aggravating for the circum another murder. The murder for which apply circumstances, stance to under those Odom was sentenced to death Tennessee language dictating clear such a result could not, was unconnected with and did Instead, have employed. been It was not. way, escape. Concluding further his permits aggravating statute circum aggravating apply circumstance did not applied stance to be if demon upon case, based the facts in Odom’s this strates that a murder was committed Court stated: “during defendant escape [the defendant’s] simple “during” Our rationale is as used — custody place from lawful or of lawful “throughout in the statute means the con- Clearly, confinement.” the defendants were escape tinuance of.” The end of the marks process still in escaping from Ken beginning “escap- of one’s status as an tucky to Mexico. These murders were sim was, Although ee.” assuredly, Odom ply step accomplishing toward this end. “escapee,” by no say stretch can we Accordingly, we conclude that the evidence
the murder
during
occurred
the defen-
support
case is sufficient to
jury’s
escape
dant’s
from lawful confinement or
finding of this
during
aggravating
Contrary
factor.
escape
the defendant’s
from lawful
custody
dissent,
place
position
or from a
of lawful confine-
this Court’s
murder,
ment. When he committed the
decision in
preclude applica
Odom does not
felony
aggravating
the invalid
custody
place
murder
circum-
ble defendant was in lawful
in a
or
beyond
stance was harmless
a reasonable doubt.
during
of lawful confinement or
the defendant’s
escape
custody
place
from lawful
or from a
aggravating
applies
9. This
circumstance
if "the
lawful confinement."
murder was committed
the defendant while
violent,
(2)
death;
(e.g.,
of death
the manner
tion of this factor.10
(3)
torturous, etc.);
for the
the motivation
(5)
death;
(4)
place
the simi-
killing;
COMPARATIVE PROPORTIONALITY
including
larity of
victims’ circumstances
REVIEW
conditions, and the
physical and mental
age,
pro
conducting
comparative
(6)
killing;
victims’ treatment
review,
pre
portionality
begin
we
with the
(7)
premeditation;
presence
absence
pro
sumption that
of death is
the sentence
(8)
provocation;
presence
the absence
portional
degree
of first
with the crime
justification; and
presence of
absence or
Hall,
*14
679
murder. State v.
958 S.W.2d
(9)
on non-decedent
injury to and effects
the
(Tenn.1997).
may be
A sentence of death
Hall,
Id.;
699. Fac-
958
at
victims.
S.W.2d
if
disproportionate
being
case
re
found
the
comparing characteris-
when
tors considered
lacking
“plainly
is
in circumstances
viewed
(1)
include:
the defen-
tics of defendants
in
in
with those
similar cases
consistent
criminal
prior
prior
record or
dants’
criminal
penalty
previously been
which the death
has
race,
(2)
and
activity;
age,
the defendants’
imposed.”
citing
Ramsey,
Id.
v.
864
State
(3)
mental, emotion-
gender;
the defendants’
(Mo.1993).
320,
A
of
S.W.2d
328
sentence
(4)
condition;
physical
defendants’
al
the
disproportionate merely
death is not
be
(5)
murder;
role in the
the
involvement or
cause the circumstances
the offense are
of
(6)
authorities;
cooperation with
defendants’
similar to those of another offense for which
(7)
remorse;
the defendants’
the defendants’
a
a life
defendant has received
sentence.
victim(s);
knowledge
helplessness of
and
of
Bland,
(Tenn.1997)
651
(8)
for rehabilitation.
capacity
the defendants’
Carter,
v.
251
(citing
State
Id.
(Tenn.1986)).
therefore,
inquiry,
Our
does
Considering
nature of the crime
the
require
finding
not
a
that a sentence “less
defendants,
imposition
find that
and the
we
in
imposed
than death was never
a case
is
penalty upon
the
these defendants
of
death
Bland,
with similar characteristics.”
958
penalty imposed
disproportionate to the
not
duty
S.W.2d at 665. Our
“is to assure that
sixty-nine-
in
similar cases. Mrs. Vester
is affirmed.”
aberrant death sentence
years old
the defendants mur
at
time
Webb,
(citing
Id.
State
680
v.
238 Conn.
at
her.
was shot
least once from
dered
She
(Conn.1996)).
A.2d
203
lay
her house while she
in bed. Her
outside
proportionality
Our
nei
review is
adja
murdered in an
husband was shot and
Hall,
rigid
objective
nor
ther a
test.
multiple shotgun
He
cent room.
died of
is
S.W.2d at 699. There
no “mathematical
head,
wounds to the
neck and chest.
grid,”
we
not
formula or scientific
are
struggled
that Mrs. Vester
evidence indicates
in
bound
consider
cases
to evade the brutal attack that severed her
aggravating
same
circumstances
found
were
forearm and left her wrist
hand attached
Brimmer,
Id.;
tissue,
applicable
jury.
a
only by
piece
consisting
State
a small
of soft
(Tenn.1994).
skin, muscle,
S.W.2d
This
and fat.
record indi
many
shotgun,
choosing and
considers
variables when
cates
she was shot once with
Bland,
rifle,
high-powered
comparing
S.W.2d at 667. once with a
once
cases.
(1)
high-pow-
shotgun
or a
Among
variables are:
the means
more
either
these
recognize
record
Apparently
Court considered the evidence in the
on
the dissent fails to
upon
appeal
light
holding
most favorable to the State.
our
was based
our deter-
Odom
holding
ap-
Finally,
prevent
did not
evidence in the record on
our
Odom
mination
support applica-
developing
peal
legally
State from further
the facts
insufficient to
hearing
resentencing
aggravating
We did
to establish that Odom
tion
circumstance.
therefore,
evidence;
escape
contrary
weigh
committed the murder to further his
from
not
(i)(8)
assertion,
support
sup-
custody
application
did
and to
this Court
dissent’s
Harris,
Moreover,
finding
aggravating
plant
jury's
circumstance.
this issue.
(Tenn.1996) (At
op-
resentencing
that the State had no
dissent’s assertion
presented
argue
portunity
develop
facts
the State is not limited to
relevant
sentencing hearing,
aggravating
free
“but
application
circumstance
initial
any way
reviewing
strengthen
again
recognize
its case in
it can
fails to
that in
evidence.’’)
Odom,
sufficiency
legal
of new
of the evidence
introduction
ered rifle.
Finally, by
separate juries,
She was then
thirteen
stabbed
hoods.
two
all
face,
murders, Hall,
participants
times. The stab
wounds were to her
three
these
head,
Blanton,
neck, shoulder,
Quintero, and
have
upper
back and
been convicted
chest.
degree
of first
murder and
sentenced to
bottoms
her feet were covered in
Accordingly,
death.
we conclude that
indicating
blood
attempted
that she
to flee
crimes,
nature of the defendants’
their crimi-
walking through
pool
attack
of her
backgrounds,
nal
their infliction of unneces-
own
testimony
blood. Medical
indicates that
violence,
sary
gratuitous
and their com-
long
she survived for as
as fifteen minutes
plete disregard
places
human
life
them
following the infliction of her wounds.
into that class of criminal defendants for
escaped
The defendants
prison
appropriate.
whom a sentence of death is
fleeing
authorities when
mur-
They
argues
dered the victims.
had committed sev-
Hall
that his sentence of
area,
disproportionate
burglaries
obtaining
eral
death is
because the evi
food
placing
dence
him at
supplies.
the murder scene was
Law enforcement officials had
argument,
circumstantial
in nature. This
focused their search to the two mile area
however,
by sufficiency
is better
*15
addressed
encompassing
burglaries,
the
and the defen-
jury
of the
The
evidence review.
found Hall
desperate
dants were
transpor-
for mode of
guilty beyond a reasonable doubt of two
tation out of
They
the area.
obtained the
counts
in
perpetration
of murder
the
of a
by
vehicle
needed
murdering the Ves-
felony.
appellate
The
court found that the
home,
ters in
traditionally
their own
support
evidence was sufficient to
the convic
place
greatest safety
They
of
and security.
proof
tions. The medical
that a
established
committed the crime
midnight
around
when
weapons
minimum of three
were used to
asleep
Vesters were
and most vulnerable
Moreover,
Myrtle
prints
murder
Vester.
to attack.
from the defendants and Blanton were found
Both defendants had extensive criminal
burglaries
at the
in
various
the Leatherwood
previously
records.
had been
con-
community.
burglaries
Items from these
charges
escape
victed of two
of
in the first
were found either near the victims’ residence
degree
charge
degree
and one
of first
rob-
car,
in
or
their
which was abandoned in
bery.
previous
Hall had
convictions for two Memphis by
matching
three individuals
assaults,
separate
endangerment
wanton
general description of these two defendants
degree,
aiding
abetting
first
addition,
In
Blanton.
these two defen
threatening the life of the President and Vice
together
dants and Blanton
were seen
President of the United
of
States
America. Memphis
day
by
after the murder
sever
Neither defendant has
remorse nor
shown
Upon
al individuals.
exhaustive review of
does
appear
either
to be a candidate for
arguments
both the record
advanced
rehabilitation. The defendants committed
counsel,
sup
we find that
the evidence
days
these brutal crimes
three
after
ports
jury’s
finding
verdict
the defen
escaping from lawful confinement which had
guilty
degree
dants
first
murder
imposed
been
as a result of other criminal
perpetration
felony.
Virgi
Jackson v.
activity. There is no evidence that the de- nia,
2781,
443 U.S.
99 S.Ct.
61 L.Ed.2d
intellectually impaired,
fendants were
(1979);
Williams,
State v.
657 S.W.2d
psychological testimony
did not indicate
(Tenn.1983),
denied,
cert.
465 U.S.
that the defendants were insane at the time
(1984);
104 S.Ct.
In
v.
State
S.W.2d
1987),
approximately
times. The
twenty-nine-year-old
other
nine
defendant
victim
upon finding
seventy-year-old
jury imposed
penalty
in
murdered the
widow her
death
circumstances, including,
striking
aggravating
own
her in the
and
two
home
head
case,
especially
repeatedly
glass
face
with a
in
that the murder was
vase.
vic-
this
heinous,
in
during
tim
or cruel
that it involved
was conscious
the attack for a
atrocious
time,
depravity of
Tenn.Code
short
and was alive when she was
torture or
mind.
(5).
39-2-203(0(3)
found,
§
hemorrhaging
later
Ann.
&
but
died
in
the brain.
this
Unlike
defendants
(Tenn.
Smith,
In
v.
State
case,
record,
prior
McNish had no
criminal
1994),
forty-one-year-old defendant broke
a
using drugs
been
the mur-
he had
when
eighty-eight-year-old
into
home of the
Nevertheless,
jury
der was committed.
her,
her, raped
victim. He robbed
female
imposed
finding a
upon
the death sentence
placed her into a bathtub
cut her throat and
circumstance,
single
one which
aggravating
alive
full of
The victim was
when
water.
case,
in
found
this
that the murder
also
lungs. Though the defen-
water entered her
atrocious,
heinous,
or cruel in
especially
intellectual ca-
dant
from diminished
suffered
depravity
of mind.
that it involved torture
“mentally
pacity
was classified as
retard-
2—203(i)(5).
§Ann.
Tenn.Code
39—
ed,”
imposed
penalty upon
the death
circumstances,
(Tenn.
Barber,
aggravating
both
finding two
In
we have considered HALL: FOR APPELLANT of death was ease and find the sentence arbitrary Bagwell The N. imposed not fashion. Reese clearly finding supports jury’s evidence Bagwell Law Firm aggravating four circumstances and Street S. Second mitigating were suffi- circumstances Clarksville, TN 37040 ciently outweigh aggrava- substantial to ting circumstances. Tenn.Code Ann. 39- Roberts Jennifer 13-206(c)(l)(A) (C). carefully re- We have — Littleton, Smith & Roberts assignments of viewed the defendants’ error and have found that are either devoid of P.O. Box 396 require Dickson, merit not or do reversal. With re- TN 37056 spect specifically to issues not addressed QUINTERO: FOR APPELLANT herein, we affirm the decision of the Court of Judge Appeals, Criminal authored Wil- Shipp R. Weems Barker, joined by Judge liam Paul M. G. District Public Defender Judge David H. Summers Welles. Steve Stack
defendants’ sentences of death electrocu- Assistant Public Defender tion affirmed and will be carried out as are 23rd District Judicial provided by day January, law on 29th P.O. Box 160 unless otherwise ordered Charlotte, proper authorities. other TN 37036 FOR THE APPELLEE: ANDERSON, C.J., concurs.
HOLDER, J., Charles W. Burson separate Attorney Reporter General & concurring/dissenting opinion. J., BIRCH, separate concurring/dissenting (oral Taylor argument) Darían B.
opinion. Attorney Assistant General REID, Justice, Special participating. brief) (appellate Kimberly A. Chance Attorney
Assistant General Criminal Justice Division APPENDIX Parkway 450 James Robertson Nashville, TN 37243-0485 (Excerpts from the Court of Criminal *18 Decision) Appeals’ Dan M. Alsobrooks Attorney District General Tennessee, Appellee, State v. J. Kenneth Atkins Attorney Pro Assistant District General Tern Hall, Jr., Billy Eugene William a/k/a Hall, and Derrick Desmond Kirby James W. Quintero, Appellants. Attorney Assistant District General 23rd District Judicial No. C.C.A. 01C01-9311-CC-00409 P.O. Box 580( Humphreys County Charlotte, TN 37036 (Nos. 10526-10527, 10544-10547, 5,1997 FILED: March OPINION Below) 10556-10559 Allen The Honorable W. Wallace BOTH APPELLANTS’ FIRST-DEGREE MURDER AND CONVICTIONS Murder, Larceny, (First-Degree Grand AFFIRMED; DEATH SENTENCES Larceny, First-Degree Petit BOTH APPELLANTS’ FIRST-DEGREE Burglary) BURGLARY AND GRAND LARCENY 140 evidence, AFFIRMED; facts and upon BOTH circumstantial CONVICTIONS strong and “must be so the circumstances PETIT LARCENY
APPELLANTS’
every
cogent
other reasonable
as to exclude
MERGED
CONVICTIONS
defendant,
hypothesis
guilt of the
save the
M. BARKER
WILLIAM
beyond a reasonable doubt.” State
and that
Judge
Pack)
(3
478, 482, 470
225 Tenn.
v. Crawford
(1971).
610,
guilt
“A web of
must
612
S.W.2d
OPINION
the defendant from
be woven around
1
from which facts and
escape
he cannot
THE
SUFFICIENCY OF
EVIDENCE
draw no other
circumstances the
could
appellants
contend that the evidence
guilt of the
inference save the
reasonable
support any
multiple
did not
convic-
Id.
beyond a reasonable doubt.”
defendant
They argue
tried
tions.
that had
been
484,
470
at 613.
S.W.2d
individually, they
charge
on each
would have
charged
prin-
appellants
While the
acquitted
charges.
been
of all
The state
counts,
charged
cipals
on all
presented
that while the evidence
submits
Hensley,
abetting.
656
aiding and
State v.
circumstantial,
entirely
given
this case was
410,
(Tenn.Crim.App.1983). Un-
S.W.2d
413
commu-
the remote location of the victimized
Code,
consid-
pre-1989
one could be
der the
nity
and the manner which
advised,
if one
ered an aider and abettor
acted,
proved beyond a
doubt
reasonable
counseled,
procured,
engaged
another
crime.
find that
the commission of each
We
State, 211
Flippen v.
Tenn.
commit a crime.
support
ver-
the evidence is sufficient to
(15 MeCanless)
895,
507, 514,
899
365 S.W.2d
dicts.
(1963).
physical
particular
A
act or even
verdict, approved by
A
the trial
guilty
crime
in the commission of the
participation
judge,
testimony
accredits the
of the wit
only to
necessary.
need
is not
and resolves
con
nesses for
state
“constructively”
v.
present.
have
been
theory.
flicts in favor of the state’s
State v.
(Tenn.Crim.
McBee,
425, 428-29
644 S.W.2d
(Tenn.1978).
Hatchett,
627,
560 S.W.2d
630
608,
Lequire,
App.1982); State v.
634 S.W.2d
strong
appeal,
On
the state is entitled to
(Tenn.Crim.App.1981).
all
legitimate view of the evidence and to
est
circumstantial,
is
Even if the evidence
might be drawn
reasonable inferences which
the aider and abet-
there must be
Cabbage,
therefrom. State v.
571 S.W.2d
venture, acted
tor associated himself with the
(Tenn.1978).
sufficiency
When the
to be
knowledge that an offense was
with the
challenged, the
of the evidence is
relevant
committed,
crimi-
principal’s
and shared the
whether,
question
after
consideration
State,
nal intent. Hembree
light
most favorable to
the evidence
may
Intent
(Tenn.Crim.App.1976).
state,
a rational trier of fact could have
sur-
the circumstances
be inferred from
of the crime
found the essential elements
State,
Presley
rounding
crime.
beyond a
doubt. Jackson v. Vir
reasonable
Smith)
(8
310, 315-17,
Tenn.
61 L.Ed.2d
ginia, 443 U.S.
99 S.Ct.
(1930).
is not suffi-
presence
mere
While
Williams,
(1979);
aided and
cient to conclude that a defendant
*19
denied,
405,
(Tenn.1983),
465 U.S.
cert.
crime, presence, companionship,
in a
abetted
(1984);
1429,
jurors. lenged jurors each stated that could juror, determining In to exclude a whether poten- impose penalty, these never death pro the trial court must decide whether ren- jurors have been able to tial would not juror may spective be excluded for cause Therefore, der an unbiased decision. capital punish on because of his or her views jurors. correctly these trial court excused “prevent ment when those views would merit. This issue is without substantially impair performance of his juror in accordance his in duties as a with OATH TO LESS ADMINISTRATION OF Wainwright and his oath.” structions THAN TWELVE JURORS Witt, 412, 424, 105 844, 852, S.Ct. 83 U.S. appellants argue that the trial court (1985) Texas, (quoting Adams v. L.Ed.2d 841 juror by removing a abused its discretion 2521, 2526, 38, 45, 448 U.S. 100 S.Ct. when it was who refused to take the oath (1980)). may L.Ed.2d 581 The trial court juror by replacing that administered jurors capital permissively excuse cases alternate. The con- with the first capital punishment “because them views on swearing-in eleven rather tend that unable to follow the law as render[ed] them jurors 40-18- than twelve violated T.C.A. perform given to them the court and to removal of 106 and that the trial court’s jurors in accord their their duties as say nor juror not the oath because she did Bobo, 945, 949 oaths.” State v. arbitrary to serve on the wanted denied, (Tenn.), cert. 484 U.S. S.Ct. discharge duly juror. In addi- of a selected (1987). 204, L.Ed.2d 155 tion, appellant Quintero claims that the seat- trial court ing of the first alternate Bobo, specifically Supreme our Court him his remain- right denied to exercise just prospective juror’s held that because a disagree. ing peremptory challenges. We may had a capital punishment have “views necessarily religious does foundation 7, 1991, voir ex- November after dire On by the United the tests mandated transform amination, individuals and of twelve Witherspoon v. Illi Supreme States parties. alternates was selected two nois, 20 L.Ed.2d 88 S.Ct. 391 U.S. process, defense At the conclusion of this Witt, (1968), supra, Wainwright v. jurors requested twelve counsel purposes in, religious into tests for the to do so. but the trial court refused sworn selected, day, at 949. alternate was Tennessee Constitution.” 727 S.W.2d The next a third Jones, jurors alternates and three Similarly, in and the twelve ques- denied, court then (Tenn.), sworn in. The trial 111 S.Ct. were cert. U.S. *21 alternate, especial- with the first jurors opening not the tioned one the because she did juror part be- the excused acknowledge ly it adminis- since was the oath when was against appel- the juror her admitted bias that be cause of tered. stated she would Moreover, failed appellants have the sympathetic had lants. more to the witnesses who jury impartial, actual somebody to show that the else” “lost at the hand someone any potential making error harmless. appellants. than the The tri- rather towards ju- subsequently the al court concluded that VENUE ror did not want to serve. Quintero the trial Appellant contends that the court for When trial asked counsel changing venue second order the court’s Quintero suggestions, appellant counsel for time, County Humphreys from Cheatham requested jury reopened selection that be I, § County, was in of Article violation preemptory challenges he had since three of Tenn. the Tennessee Constitution and appellant left. Counsel for and the Hall Specifically, appellant P. 21. R.Crim. alternate state recommended first argues did not consent to Quintero that he placed jury. appellant on be Counsel for venue, change of and even if this Court Quintero again objected, ap- and counsel for acquiesced change, in the he determines joined Hall pellant objection. finding by no the trial court that there was juror replaced court trial removed Cheat- there existed undue excitement within her with first alternate. County justify of this ham removal Although we find this issue to be without Moreover, Quintero appellant submits case. merit, any we first complaint note as to County Humphreys is not the nearest the trial court’s actions this matter has judicial county in the district in which Hall, by appellant initially been waived who by prosecution pending, required as recommended taken course A of action. 21(c). P. Tenn. R.Crim. party responsible for an error cannot seek alleged All of the crimes occurred Stew- relief from the action recommended course of County presentments were art where 36(a). appeal. R.App. Tenn. See P. brought against appellants and co-defen- im- “[i]n T.C.A 40-18-106 states that P. Blanton. Pursuant to Tenn. R.Crim. dant felony, paneling any for the trial of affidavits, 21, motions, by supported were jurors not court shall swear of the until appellants, and the trial court filed jury.” the whole number are for a selected County. changed venue to Cheatham Subse- statute, jurors all twelve must be Under quently, the trial court severed co-defendant jurors time that the are sworn selected appellants. Blanton’s trial from that of the Here, jurors in. twelve selected Blanton After co-defendant was tried in, however, juror sworn one refused to take County, appellants filed mo- Cheatham
the oath. venue, however, change mo- tions for supported At a tions were affidavits. Tennessee, trial court dis has wide motions, hearing opposed on the the state examining prospective jurors cretion supporting motions because there were ruling qualifications. on their How 21(b). required by as Rule Al- affidavits ell, (Tenn.1993), cert. though Appellant Quintero withdrew his mo- denied, 510 U.S. S.Ct. time, appellant at that Hall did not. (1994). tion L.Ed.2d 687 It is within the also issue, There some discussion judge trial an alter discretion seat the fol- counsel made parties nate who been selected lowing concerning statement Cheatham regular juror must removed. when County: 24(e)(1); P. v. Mill Tenn. R.Crim. Honor, brooks, (Tenn.Crim.App. I If the Your concur that. 1991). case, here, try spend circumstances of this General wants to we can Under the get trying did its month here. we find that the trial court not abuse juror knows, everybody removing filling as else General well discretion *22 knows, Oct., day get we can’t a here. if the Court on the 7th of But That it, signed by Court in error. try that’s General wants to fine with us. appears in Minute Book Order as it discussion, After further the issue was re- page is void. served until hearing. the end of the Under 21(a) provides all criminal impression “[i]n he had Rule that that withdrawn his changed upon prosecutions may venue venue, ap- for change motion counsel for defendant, court’s upon the motion of the or pellant Quintero left the courtroom coun- the defen- own with the consent of motion appellant argued sel for his Hall motion for dant, that, to appears if to the due court change of back venue. Counsel called against undue excitement the defendant courtroom, again into the and the issue was county the offense was committed where Abruptly during hearing, discussed. cause, any probably fair could or other trial changed Humphreys trial court venue to jurisdictional in Ten- not be had.” Venue County. just The trial court stated “I’m tried right nessee. An accused has the to be error, it. I’m going to do If I’m in in error.” county has been which the crime Quintero Appellant objec- not make any did 1, § Tennes- Article 9 of the committed. See at that tions time. see Constitution. Subsequently, an order was entered record, that reviewing After we find Quintero allowing appellant trial court to appellant Quintero any waived constitutional change withdraw motion for of venue procedural complaint Initial- as to venue. finding that the motion was no effect. contempora- ly, appellant Quintero failed to day, appellant Quintero That same filed a neously object ruling. See to the trial court’s requesting prosecut- motion that the trial be 36(a). Moreover, ap- R.App. while Tenn. P. County, alleged ed Stewart where the withdrew, attempted pellant Quintero Appellant Quinte- offenses committed. change motion for of venue withdraw his objecting change ro also filed a motion County, any he did not make Cheatham County. to Humphreys of venue A motion objection he ruling the trial until court’s day, hearing was that and the court held trial subsequently approximately filed a motion change upheld its earlier decision venue appel- appears one later. It also that month Humphreys County. argu- lant waived constitutional completed, After trial was the court initial ment on this issue when he made his denying appellant Quinte- entered an order request changed venue be from Stewart part: ro’s motions. The order stated County. Upon pre- of all consideration matters (Tenn. Nichols, 877 argument sented of counsel for the 1994), appellant pretrial filed a motion for State, defendant and the the Court finds change granted the The trial court of venue. Motion is defendant’s not well motion moved the trial to another coun finds that taken. Court this defen- ty, appellant’s objection,. for the over granted change filed for dant and was jury. purpose selecting limited unbiased 14, 1991, January on or venue about selected, the trial was Once the County, venue was moved to Cheatham county. original transferred back Tennessee, and that the defendant filed an appeal, then raised this on issue request objecting additional venue characterizing changes it as “two of venue.” considering and that the all matters appellant’s Id. at In reviewing 727. presented moved the venue this case to claim, Supreme Court held: Tennessee, Humphreys County, August obviously re- Our Tennessee Constitution 30, 1991. The Court would further note concerns flects similar and values. find that for the has counsel defendant dispositive question here is whether attempted to re- withdraw defendant’s rights Article defendant waived his under quest change I, for a of venue which was vicinage both venue when as to August change denied the Court on he venue. We moved for change motion An in this of venue previously order was entered conclude that *23 pursued if I, Rule 21 he had raise a claim under of Article constitutes a waiver extraordinary appeal pur- interlocutory or an rights. Accordingly, unless the defendant such is R.App. P. 9 or suant to Tenn. justice prejudiced, the administration of junc- Quintero at this appellant to available harmed, the trial court abuses its dis- or Moreover, to the made statements ture. cretion, reversible error occurs when counsel, it Quintero’s by appellant trial court judge employs the unorthodox trial court have been trial could not clear that a fair was response in this case in to procedure used Smith, County. 906 See Cheatham change of ven- a defendant’s motion for any constitution- Finding that at 10. S.W.2d ue. waived, we claim has been procedural al or Id. at 728. decision to remove affirm the trial court’s Quintero holding, appellant Based on this County. case from Cheatham complaint constitutional waived Moreover, change rec- of venue. second OF PRESENTMENTS CONSOLIDATION appellant Quintero reflect that ord does not court that the trial appellants contend prejudiced, was the administration of pre-trial motion granting the state’s erred harmed, justice trial court or that the ease presentments to consolidate Here, appellants abused its discretion. both 8(b). Specifi- P. pursuant to Tenn. R.Crim. hearing change of admitted at the on the that the evidence cally, appellants assert County they venue from Cheatham finding common support a of a does not pick to would not be able unbiased furthermore, and, plan scheme or after co-defendant Blanton had tried been trial would not of all of the cases on evidence county. all upon the trial of have been admissible Quintero Finally, appellant does not have a others. pro- claim under Rule confers 13(a), P. a “court Tenn. R.Crim. Under rights upon cedural a defendant. In State v. more in- may consolidation of two or order
Smith, (Tenn.Crim.App.1995),4 S.W.2d dictments, for presentments, or informations changed that when venue this Court held appellants if and all could trial the offenses county, appellant to a different was enti- indictment, joined single pres- in a have been protections to those he had in tled similar entment, pursuant to Rule 8.” or information county original under Rule 21. Id. at 10. 8(b) provides: Tenn. P. R.Crim. The Court determined that on remand for may joined in the or more offenses be Two grant- resentencing, the trial court erred in indictment, presentment, or informa- same change ing a motion for of venue over the tion, separate in a with each offense stated objection Basing appellant. of the its deci- count, pursuant Rule 13 or consolidated on Rule stated: sion parts of a com- if the offenses constitute [Rjegardless of whether the defendant or if of the plan are mon scheme court, defendant’s con- character. the trial with the same or similar venue, sent, change for a moves argument of the facts and on Based on made is threshold determination be counsel, granted court the state’s the trial whether, fact, cause exists to conclude presentments to consolidate the motion probably cannot be had. that a fair trial Subsequently, motions to this case. several contemplates showing that such Rule appellants denied filed sever were 21(a) See, e.g., made of record. Rule by the trial court. (b). separate to consolidate indict The decision Id. procedural matter which is within ments is a Smith, appellant the trial court. McCook v. Unlike the discretion of waiting State, any rights (Tenn.Crim.App. under Rule waived 1977). pur Accordingly, Having while consolidated the offenses raise this issue now. 8(b), appropriate standard suant to Rule Quintero may have been able appellant Smith, R.App. dinary appeal pursuant to Tenn. P. 10. granted an extraor- mo- evaluating appellants’ opportunity, tablishing whether severance should be 14(b)(1). Further, tive, granted kill is Rule and intent to the Vesters. right uncharged have a crimes severance “unless of- evidence McMinn, Hands, part residences plan fenses are of a common scheme or Crawford helped appellants’ common evidence of one would be admissible to establish escape Kentucky upon the Tenn. R.Crim. from the authori- trial the others.” scheme to *24 14(b)(1). 553, Wooden, portions P. Both rule 658 S.W.2d of the must ties. See State v. (Tenn.Crim.App.1983). be satisfied to avoid severance: there must 558 plan a common scheme or and the be evi- Moreover, prong we find that the second dence of one at offense must admissible determination, making been met. In this has trial of the others. Rules of we have looked to the Tennessee 404(b). determining Evidence; grant specifically, In whether or not a to Rule See Hallock, severance, the trial court must look at “the v. at 290-92. The State 875 S.W.2d in the facts circumstances involved vari crimes which of evidence of other “admission charged.” that v. plan ous crimes are State Mor to a common scheme or is tends show ns, 820, (Tenn.Crim.App. 788 S.W.2d 822 identity, knowledge, proper guilty to show 1990). grant to intent, motive, The decision severance is a defense of mistake rebut court, accident, left to the sound trial discretion or or to establish some other rele 631, Furlough, State v. 797 S.W.2d 642 Id. 292. There vant issue.” at is doubt (Tenn.Crim.App.1990), ease, will be dis not that in of each offense this unfairly inextricably turbed unless the or defendant connected with the evidence State, unduly prejudiced. cases, See of the other offenses. In such Woodruff (11 Smith) 530, 539, 843, Tenn. 51 Supreme 164 S.W.2d held denial of a Court has Wiseman, (1932); 845 State v. 643 S.W.2d not error. motion to sever the offenses is (Tenn.Crim.App.1982). Shepherd, It is re See State v. 903- (Tenn.1995). sponsibility of the defendant to show that he This issue is without merit. prejudiced by the clearly trial court’s OF TELEPHONE INTRODUCTION State v. refusal sever offenses. See RECORDS (Tenn.Crim. Hodgkinson, 778 S.W.2d trial, T telephone At an AT & bill was App.1989). through into evidence Thomas introduced plan encompasses scheme or Common Harris. He testified that the bill reflected groups sequences of crimes committed phone calls made from his trailer goal order to achieve a common ultimate area on June 1988. The bill Leatherwood purpose as well as crimes which occur within long showed that three distance calls itself Hallock, single action. criminal Spring- phone to a number in were made (Tenn.Crim.App.1993). town, Texas. Mr. Harris testified that he did ease, present In the the various crimes and Later, Henderson, Jerry place the calls. part sequence of their occurrence were telephone the records custodian for GTE country greater plan to leave the and to Texas, Dallas, company in testified authorities; Kentucky capture avoid phone name of number had been listed thus, establishing prong the first under Rule Quintero the time of the calls. Bryan at 14(b). appel- All of the crimes for which the Quintero that the initial charged Appellant argues in the Leather- lants were occurred T tele- community County within recitation from Mr. Harris’ AT & wood of Stewart Key phone hearsay pieces bill was and constituted than a week. of evidence less right murder scene and in the Ves- violation of Sixth Amendment found argues He appellants to the witnesses. further ters’ stolen car linked the confront Cherry, indicia of from the Fos- the evidence did not bear its own burglaries and thefts ter, residences; reliability, was re- and therefore the state evidence of Vester Foster, quired burglaries presence the custodi- and thefts from the secure disagree. AT T. Cherry, residences aided es- an of records for & We and Vester (Tenn. made hearing, trial court Meeks, jury-out At a testimony concerning the following ruling comput Crim.App.1993), held that this Court prosecution: Pallay, for the a witness of Mr. hearsay: generated records are not er Gentlemen, going to rule I’m right. All hearsay plays in The role that rule testify about the is not to that this witness limiting fact finder’s consideration the reason robbery conviction and armed received from witnesses rehable evidence this, bit. go a little let me back being is subject to cross- are under oath and who Quintero since Mr. has known He the com application has no examination testify he youngsters. He will ease. In puter generated record of this evidence the reason was—I’m sure stead, admissibility computer of the up used to set him and his father tracing system record should be measured area, Mb’. Leatherwood trailers itself, reliability system, rela father, puts Mr. so that and his accuracy. proper functioning and tive to its *25 Quintero the Leatherwood familiar with See, Commonwealth, e.g., Penny v. 6 Va. area, probative on the that cuts down so (1988); 494, 314, App. 316-317 370 S.E.2d get you’re trying to to. else value what Holowko, 187, Ill. People v. 109 Ill.2d is, prove by this testi- you that can That (1985). 346, 877, 486 N.E.2d Dec. Quintero familial’ with mony that Mr. was case, per that In this the record reflects area, down so that cuts the Leatherwood knowledge op special sons with about was even probative value of what on that computer system gave eration of the evi they prison, on when were said later accuracy reliability dence about the two, prej- number is the number one. And justify the computer tracing so-as to certainly in that case then effect udicial computer printouts. admission value, probative so do outweigh the would hearsay implicated. against rule is not period. they prison, were not state that Meeks, persons special Id. at 376. with testimony, Pallay Shortly Mr. stat- into his knowledge operation of the com- about Quintero had been appellant ed that he and system system’s puter testified as to the done the “[u]p close friends until the time we Here, accuracy reliability. the state did court, robbery together.” trial armed present testimony an AT & T not jury that sponte, instructed the to “strike sua custodian, testimony statement, completely.” records but there was disregard that last Henderson, ap- employee juryout hearing from the then held where from Mr. A was mistrial, requested which pellant Quintero AT phone company. He testified that Texas the trial court denied. billing system highly reliable and & T’s is doing phone companies that all local business grant a mistrial lies Whether billing AT & T have the exact same judge. the trial State v. Ad discretion of system. Mr. Henderson testified extensive- (Tenn.1990). kins, A 786 S.W.2d ly, testimony that suffi- and we find was case declared a criminal mistrial should be reliability the tele- cient to confirm the necessity” a “manifest in the event of phone bill under Meeks. v. Mill requires such action. State brooks, (Tenn.Crim.App. 819 S.W.2d OF PRIOR CRIMES
TESTIMONY 1991). will The trial court’s determination appeal is unless Quintero argues that the trial not be overturned Appellant court abused its discre that the trial shown by failing grant a mistrial court erred Adkins, 644; 786 S.W.2d tion. State v. Zackery Pallay that he and testified after Mounce, 319, 322 see State v. robbery to- Quintero had “done the armed (Tenn.1993). to the simi- gether.” He contends that due robbery and of armed case, larities of the crime jury already present In the case, the mention of charges Quintero was an es- appellant aware Moreover, devastating. hold had robbery We Sheriff Hicks caped convict. armed appellant Quintero and appellant already properly denied testified trial court together time at Ed- Pallay had served Mr. Quintero’s request for a mistrial. if I I dyville. testimony out A. I can’t recall have or not. can’t While this came when sorry, you recall. I’m know. appellant Hall counsel for was cross-examin Hicks, objection ing enough, suppose. there was no Q. Sheriff That’s fair I One bit, appellant Quintero. thing clarify a little importantly, More let me any- you parole or gave trial ever violated for court a curative instruction which thing, go in and more had to back do presumed Fra have followed. (Tenn. time, State, paroled again? then zier v. No, Pallay day
Crim.App.1977). should While Mr. A. sir. The I was released except parole, not have clean since have testified that he and I been person’s previously one I over at committed an armed time was mari- robbery together, house he was busted for we do find that not statement, charged anything by itself, juana. not required the trial I was court Jackson, charge in grant on that Tennessee. a mistrial. returned, Pallay Mr. testified When the previously been convict- on direct that he had IMPEACHMENT OF WITNESS robbery. ed of armed the trial appellants contend that court Ronnie proceedings, Later in Sheriff allowing impeach erred them to jury-out hearing at a Toungette testified witness, testimony Pallay, Mr. state’s Pallay Mr. he when the courtroom he after learned that had committed *26 Toungette testified that testified. Sheriff perjury during jury-out hearing. Specifi- Pallay’s testimony, he Mr. when he heard cally, they that the trial court erred contend Mr. previously arrested that had realized he allowing present testimony them to not at his Pallay, he records so checked some copies and certified warrants issued sought to introduce The office. against The appellants the witness. further warrants, in- copies of three certified arrest argue prosecutorial it misconduct During argument perjury. cluding one for neglect bring prosecutor it to for the matter, prosecutor stated: this trial court when he was attention I of this circumstance was aware According- misrepresentation. aware of the gone if had into have —and Counsel would ly, appellants request trial. new it, al- the Court had we would have —and testimony questioned jury-out The was as him, given oppor- lowed we would have follows: me tunity to The witness told explain. Q. Pallay, you any Mr. do have convic- had on misde- some run-in that he about robbery? tions other than armed Humphreys’ charges meanor here robbery, A. than an armed bad Other But, County wasn’t Court. when —he law, it, that would be about check wasn’t no re- questioned about and there I that’s all can recall. just quirement me to that. But it’s for do Q. improper, felonies or misdemean- it’s collateral. witness Would that be given opportunity was never never ors? —he about it. asked out A. It was all settled of court. appellants to not The trial court did allow Q. did those occur? When present testimony of the warrants or the old, eighteen years A. when I was Back jury. appel- Toungette to Sheriff years nineteen old. eighteen and given opportunity subpoena lants were No, you going THE I’m not to let COURT: Pallay, he was Mr. but never recalled. Anything now. That wasn’t in. do that Pallay that “I have Mr. testified When robbery conviction? since the armed day he was released been clean” since No, sir, my A. not to recall. falsely. clearly he testified parole, right. All THE COURT: Moreover, during the prosecutor stated Pallay had matter that Mr. Q. you you arrests since discussion Have “run-ins,” prior indicat- him about some told were released? Spe- taken T.B.I. ing Pallay parte in fact statement was that Mr. did recall the ex during the inves- Agent cial Mike Breedlove subsequent arrest warrants. objection of' tigation of the case. Over 608(b) R. states: Tenn. Evid. Quintero, appellant for Hall counsel Specific of conduct of instances a witness statement, Pallay’s Mr. was allowed to read attacking or purpose supporting for the Breedlove, to by Special Agent as recorded credibility, the witness’s other than convic- jury: provided may tions crime as Rule eight I Quintero since was I have known They not proved be extrinsic evidence. I had him years old. The last contact may, however, probative if of truthfulness correspond with year ago. I would following or untruthfulness and under the called the Sheriff’s through him I letters. conditions, inquired into on be cross-exami- escape day after the Department the concerning nation of the witness the wit- phone that answered told woman ness’s character for or un- truthfulness dumb; Quintero wasn’t concerning the truthfulness or character himself; he would backtrack for truthfulness or of anoth- untruthfulness lake; stay along probably he would er witness as to which the character wit- Jessieville, Arkansas; going be could being ness cross-examined has testified. cousins, got aunts he’s uncles and there. been our house. He’s over to 608(b), Rule extrinsic Under of Mr. me, looking I know that be for but Pallay’s he will prior arrests admissi- would hasn’t me. I worked Mr. he contacted appropriate ble in court. avenue was to his building a roof on trail- Garrett’s house Pallay, subpoena request issue a for Mr. heavy equipment carpenter I am a er. 608(b)(1), jury-out hearing pursuant to Rule roof until operator. I worked on his Sat- and attempt to cross-examine him about a.m., I urday. guess I started around six prior perjury. appel- Because arrest p.m. It quit seven-thirty eight took lants avail themselves of failed to this reme- *27 I days. night four and At would us a half court, dy, by any the trial offered error over at Jack house. be Bowers’ 36(a). R.App. was waived. Tenn. P. I I’ve known since was six or the Vesters’ Finally, prosecutor’s failure to reveal years taking up for seven I’m not old. being untruthful, that the witness was state’s killer. I Mrs. talked to Vester ten- regardless questioning of whether the was a.m., thirty Monday morning. She called proper, troubling. prosecutor A is has both they going the house. said to She legal duty a and ethical to correct the false morning. that town testimony prosecution of a witness. State jury-out hearing, In trial court ruled (Tenn.Crim. Spurlock, statement, portion Pallay’s of “I’m Nevertheless, App.1993). killer,” taking up not would not for no be any an opportunity to correct error ruling, redacted. the trial court said: so by failing waived the to do issue so. Tenn. that, part up taking ‘I’m not up there 36(a). R.App. P. killer, got to for no I think we have look at At the time the whole circumstance. this RIGHT TO CONFRONT WITNESSES made, neighbors people, statement is two Appellant Quintero argues right that to his [sic], Pelay Mr. Zach had been killed. witnesses, by guaranteed confront Sixth ease, in that at least whether evidence States Amendment to United Constitu- not, everybody looking it is true or for 1, § by tion Article 9 of the Tennessee Blanton, Quintero. TBI was go- Hall and Constitution, when was violated the trial ing Pelay questioning to Mr. him. He [sic] reading Pallay’s court of Mr. allowed day in here about told about —the other his jury. unsworn statement defendant, fear he had one or more part appellant proof, defendants. As Hall’s the trial Gentlemen, appellant goes court Hall and the state to to the state of allowed all this unsworn, anybody. Pallay’s identify mind. It Another stipulation enter don’t into Attorney, if neighbor that Mike Breed- down there could have said the the District called, agent special agent an thing, it love was same whether done or not. — Investigation, Bureau of with Tennessee It’s not offered for truth of matter. testify as to of a parts called he would saying they It’s are not not killers. I’m to going now to stated statement that’s going to redact the last statement— into stipulation This is not entered you. further, reviewing After the issue trial Quintero. Mr. court stated: cannot statement in You consider this nothing is in this There statement about against Quintero, against for way Mr. or Pelay Quintero Mr. [sic] Mr. hadn’t him, Mr. you even consider it. can’t already to been testified and the record Quintero anything there’s there —if prejudice will There reflect that. is no him, you If is consider it. there can’t going go I am to statement. ahead him, against you can’t anything in there Bagwell and let Mr. introduce state- it. as far as Mr. consider It don’t exist ment out a—between he and right. Quintero is concerned. All going stipulate are that if Mr. Stout [sic] 618(b), R. “[e]xtrinsic Tenn. Evid. Under his was called statement would be—he a prior inconsistent statement evidence Pelay is would that this what Mr. testify unless the witness is not admissible witness [sic] told him. deny explain opportunity is afforded an statement, again I have reviewed the party opposite and the is afforded the same carefully, it reviewed and reviewed the opportunity interrogate the witness [sic], testimony Pelay is of Mr. there noth- thereon, justice otherwise the interests Jessieville, ing. talking about Arkan- He’s require.” sas. that from the He mentioned witness him calling stand. Talked about Sher- [Paragraph Deleted]* iffs Department, he mentioned Here, Mr. does not indicate that record working the witness stand. Talked about Pallay to re- was unavailable as witness house, Bagwell Mr. said Special spond statement earlier he reason he wants it in because he thinks Martin, Agent According to Breedlove. get can him where there’s some inconsis- procedural error to allow tency there. prior Pallay’s inconsis- Hall to introduce Mr Anything that has do with Mr. impeach tent statement in order to his credi- says is not —he known him he’s bility. *28 years, that from the eight for he testified However, portion Pallay’s Mr. state- of deny did has witness stand. He he Special Agent Breedlove wherein ment says had him. he he’s contact with Here killer,” said, for Pallay taking up “I’m not no corresponded him. I don’t think with Pallay’s with testi- not inconsistent Mr. was a prejudicial such nature. I can that’s mony at trial. a direct contradiction While going I’m instruct the otherwise. necessary to be inconsis- not for a statement Mr. Bagwell admit the statement and Mr. tent, inconsistency it and is sufficient if and I so Alsobrooks submitted will instruct tendency to discredit has a reasonable jury. al., testimony, Neil P. et Ten- witness’ Cohen jury, was to the Before the statement read (3d 613.2, Law Evidence at 407 nessee of following gave jury in- the trial court ed.1995), here, statement cannot be said struction: tendency to dis- have a reasonable Gentlemen, Pallay’s a stipulation Pallay’s testimony. has Ladies and Mr. While credit taking up at- into between Mr. Hall’s statement that he
been entered Roberts, may explained Pallay’s of killer have state torneys, Bagwell Mi’. and Ms. * Nashville, (Tenn.Crim.App., WL at paragraph Appeals Criminal 1996 275010 One the Court of 24, 1996), May which later affirmed as mod- because it discussed decision has been deleted Martin, S.W.2d appellate this Court in State v. 964 court decision in State ified intermediate Martin, 01C01-9411-CR-00397, (Tenn.1998). Henry No. trial, the crime scene statement, video of At a color made the mind at the time he ini- Department was taken the Sheriffs explain why Pallay gave incon- does not Mr. tape, jury. tially On video shown to accordingly was irrel- sistent statements be seen as victims’ bodies could Pallay’s impeach attempting Mr. evant Also, in the crime scene. were found credibility. testimony various law conjunction Although for the trial court to it was error case, investigating this officials enforcement Pallay’s portion fail state- to redact of the exterior photographs numerous said, taking up for he “I’m not ment wherein house, as well as interior of Vesters’ killer,” under the circumstances of this house, drawings of the physical evidence case, evidentiary error was we find that this A second into evidence. were introduced strength of the harmless. Given the relative presented scene was also of the crime video guilt of the State’s evidence jury, portion video but objected-to Quintero, not find that the we do house. of the Vesters’ showing the exterior Pallay’s effected the portion of Mr. statement Tapes A. Color Video prejudice to the judgment or resulted 36(b) judicial R.App. P. process. See Tenn. tape, was taken color The first video 52(a). Supreme and Tenn. R.Crim. P. As our County Sher- officers from the Stewart when Carter, scene, said in State v. 714 S.W.2d on the Department first arrived iffs (Tenn.1986): at 248 and the interior of shows the exterior home, including the victims’ bodies Vesters’ prej- The line harmless error and between they were found. proportion udicial error is direct tapes of a crime admissibility of video proof degree margin of the which the of the discretion scene is within sound beyond the standard to convict exceeds admissibility court, ruling and its on the trial reasonable doubt. with will not be overturned of such evidence Sutiles, See also State showing of discretion. a clear of abuse out (Tenn.1989). (Tenn. Bigbee, Tran, 1994); v. Van judge the fact that the trial advised Given (Tenn.1993), denied, cert. 511 U.S. portion Pallay that no state- (1994). 1577, 128 L.Ed.2d 220 S.Ct. against appellant ment be considered could proba- finding tape video Quintero, given fact tive, the trial court stated: circumstantial, guilt, although was over- line, this film. The bottom I’ve reviewed whelming, we conclude that the error was good It’s a picture of a crime scene. it’s beyond a reasonable doubt. harmless much than a picture. I think it’s better photo you have photo because a still still' OF COLOR VIDEOTAPES ADMISSION angles interpretation about all kinds of AT AND PHOTOGRAPHS GUILT- This is not. So this is everything else. PHASE INNOCENCE *29 very probative. they appellants argue that were de- scene, Now, every especially if it crime by of the fair trial the introduction someone, nied a of a life of cer- involves the loss photographs the crime- of color videos tainly going gruesome to have some is particu- In victims’ bodies. anything scene and of the anybody If cares effect to it lar, complain display life, the appellants going grue- have a the human it’s to about splatterings and blood to it. of bodies some effect done, case of cir- especially prejudicial case, I officer has But in this the Further, appel- think, job avoiding making the cumstantial evidence. an excellent them, photo- tapes the video two picture gruesome. lants submit that It shows the It does needlessly cumulative when dwell on them. graphs were bodies. Didn’t leg. the on Mrs. Vester’s physical the evidence and show some blood compared to screen, However, in the it also shows holes investigators. testimony the crime scene of probative may be “if its missing. It hole in evidence excluded one screen shows a substantially outweighed the dan- value is angle It shows the these another screen. prejudice, of is- ger of unfair confusion from, had to come the shots. Assum- have sues, jury, or consider- misleading prove is ing they the shots what made time, delay, of ations of undue waste holes in the screens. presentation of cumulative evi- needless gruesome. I don’t think it’s No more dence.” Tenn. R. Evid. 403. any be- gruesome than death of human specify do or dis- While the not objec- your to ing. going So I’m overrule they are photographs cuss individual be tion and allow the film to admitted. challenging, cite to the record where Bigbee, challenged portion “the of As were introduced into ev- photographs various tape post- is it unpleasant because shows photographs idence. Most mortis,” lividity rigor and some but mortem house, the different exterior of the bedroom not its trial court did abuse discretion screens, windows, and the dam- the window allowing tape played the video to be for the telephone aged in the box outside wires jury. 885 807. It should also be S.W.2d photographs, spe- Only a house. few photographs noted that no of the victims’ four, cifically splatterings, and involved blood guilt/innocence bodies were introduced at the the victims’ photographs none of the were of phase. bodies.5 trial, tape, Later in the a second video Mr. photograph The first shows blood on T.B.I., by the to lengthy taken was shown After a pillow. Vester’s bed and However, sides, the trial court jury. video showed discussion from both premedita- photograph show admitted the area sur- exterior of the house and angle of the shot. The tion and to show the rounding the cumu- house. While somewhat spray of blood photograph second shows video, lative of the first it was short and “I The trial court stated bathroom. provided a window more concise view the it picture gruesome think this is don’t the out- screens evidence found around probative so I’ll overrule does have value Moreover, the appellants of the house. side objection that.” objection contemporaneous made photograph Mrs. Vester’s The third shows portion of the See introduction of this video. The trial bed with a small amount blood. 36(a). R.App. Tenn. P. picture “I think that is court stated don’t overly gruesome. And it’s been revealed Photographs B. Court, been here to the here it’s stated admissibility of the video As with the they’re Mrs. going show that admissibility is a tapes, photographs “the mortally wounded several times Vester was court in to be trial matter determined and I think that by different instruments Cagle the exercise of its sound discretion.” completely out of gets kind of—unless it (Tenn.Crim. State, bounds, Unless, probative. makes all it it App.1973). showing of abuse Absent clear bounds, I’m say, gets I out of completely discretion, not ruling trial court’s will keep right going to here —this Banks, overturned. gruesome going to overrule the ob- and I’m (Tenn.1978). 947, 949 jection enter # 120.” R. evi- Under Tenn. Evid. relevant photograph shows the closet The fourth “having any tenden- as that dence is defined where there is a sub- next the bathroom cy that is make the existence of fact admitting of blood. stantial amount *30 consequence the of the of determination fact photograph, “[t]he the trial court stated location, it probable probable than [Mrs. more less that it it shows where action shows got pictures in the Vester] Relevant was house. We’ve without the evidence.” would be ing/air leaning against conditioning in the tele- can also seen unit 5. One of the victim's bodies However, photograph could not be considered background of the Vesters’ vision. It the room, gruesome any way. heat- living was to show the taken
153 This, ap- photograph noticeably was darker. here now that show she was wounded Quintero argues, tend to draw places probative pellant in the would different house. It’s eye anyone looking for a “dark gruesome pic- that the and it’s not either. This argues that gruesome.” skinned” individual. He further ture is not trial court went photo array suggestive that the the was so grue- on to that “there real state were some Shirley in-court iden- Morrow’s previ- admission pictures some that have excluded been process right him to due tification denied the ously. Not in this trial in the other trial. but line- agree photographic of law. We That I excluded. These I think it was didn’t Quintero. suggestive appellant up was gruesome grue- I then and don’t think it’s not agree that should We also Ms. Christof probative some I think it now. does have concerning her testify allowed to have been probative outweighs value. the its So value appellant Quintero from the identification prejudicial prejudicial effect. Or effect does however, reviewing the line-up; photo after outweigh probative its value.” do not find that Ms. Morrow’s record we that none of were photographs We find the sug- unduly tainted the identification was inflammatory, especially considering the up. gestive photo-line though this case. facts of Even the Photographs photographic contained appellants felony-murder, the convicted array have to accused. do not mirror the felo charged the were with both Instead, simply requires the law Thus, ny-murder premeditated murder. police “suggestive identification refrain photographs were state’s relevant 188, Biggers, Neil v. procedures.” 409 U.S. attempt prove murders were com (1972). 375, Thus, 93 S.Ct. L.Ed.2d 401 perpetration felony mitted of a un- photographic identification is admissible premeditation were done with and delibera less, upon totality circum- based of the tion; i.e., the manner of circumstances and stances, ... “the confrontation conducted the location proximity death and of the unnecessarily suggestive so and condu- was addition, shootings. In of this sev the facts irreparable cive to mistaken identification complex, photo en-week trial were process of accused] due [the denied graphs necessary and the videos Denno, 293, law.” Stovall v. 388 U.S. 301- help keep inform the and to each 1967, 1199, L.Ed.2d 87 S.Ct. aspect of the case The trial court order. (1967). Biggers, set forth allowing did not abuse its discretion analysis determining wheth- a five-factor photographs state to introduce these at the by suggestion er an identification tainted guilt phase. Stephenson, See State may nonetheless be admitted into evidence: (Tenn.1994); 5.W.2d v. Van State opportunity 1. of the witness to view Tran, 465, 477. criminal at crime. the time of the degree 2. the witness’s of attention at the PHOTO LINE-UP6 time of crime. Quintero photo Appellant argues that the accuracy prior 3. the witness’s de- array Memphis shown to the witnesses scription of the criminal. created a substantial likelihood of misidentifi- certainty 4. the level of demonstrated suggestiveness array. cation due at the witness the confrontation. Specifically, appellant argues that length of the crime 5. time between case, photo- facts of upon based and the confrontation. array impermissibly suggestive graphic 382; complected Biggers, he was the dark 409 U.S. 93 S.Ct. at because (Tenn. array, Philpott, and this fact was individual of his emphasized background Crim.App.1994). because 27; 10(b). merely Quinte- Appellant copied appellant Ct.Crim.App. Regardless, Hall Tenn. R. argument on this does not chal- the record ro’s issue and review of does not reveal array Accordingly sugges- lenge photo photographic line-up impermissibly as to himself. R.App. has been waived. See Tenn. P. as to Hall. this issue tive *31 array (Quintero) only Mexican photographic to because he was shown identifi- line-up. pick not Christof, individual in the She could Shirley cation witnesses Darlene pictures at time of her out the three Morrow, Denise included and Curtis Jones testimony, identify nor could the men as she eight pictures escapees Eddy- of the from following being in the courtroom. The collo- ville, Kentucky. Blanton Co-defendant was quy occurred cross-examination: picture the first in the first row of four you you Quintero’s photo- Q. picked Do if out photographs, appellant remember anybody? graph directly was number five underneath pretty picked I think —I’m I photograph, ap- co-defendant Blanton’s A. sure out six, looking guy. pellant Mexican photograph Hall’s was number you appellant Quintero’s Q. picked to And reason that him photograph. next out, assuming I Hispanic in would be safe Appellant Quintero only is the asking you question, the reason line-up picture and his is a shade darker you picked him he out was because attempt than the others. There was no to looking? was Mexican photographs men with similar choose A. Yes. physical characteristics. only Q. And was that the Mexican look- jury-out hearing A was held on admis- ing photograph you, was shown Christof, sibility testimony from Darlene only that there was one Mexican look- Morrow, Shirley Curtis At the Jones. ing person array, in the wasn’t there? hearing, conclusion of the the trial court held A. Yes. testimony with the was admissible hearing, At the end of the the trial court exception Mr. Jones was not instructed array the photographic determined that testify appellant that he had identified suggestive not and that Ms. Christof could photo line-up. testify. hearing, At the Christof testified that Ms. at Subsequently, Ms. testified tri- Christof working as dancer Blue Movies she was at al had number five she identified scruffy-look- on June Three West Agent (Quintero) for as one Stout ing only men came into her booth. Because three men that came into her booth. She person permitted in booth at a one appellant Quintero identify unable to time, third man two of the men left. The courtroom, stating that did not see she minutes, stayed a few then left. third Hispanies. any man returned to the booth a few minutes hearing Ms. Morrow testified at that in silver He wanted Ms. Christof dollars. at she worked as cashier June dance, enough money, he did not have but near the bus station. Blue Movies West On again he left. so morning Tuesday, three June men escapees Ms. had read about the Christof into bookstore and traded silver came three newspaper and wanted the men purchase dollars and half dollars order to leave. walked to front of the She girl” Ms. tokens watch “live shows. going phone like she was to make a call store purchased some silver dollars Morrow also people working asked the if for herself. Kentucky escapees about the from the heard later, twenty Fifteen or minutes three immediately prison. three left. men register. Ms. Mor- men returned to cash testified that the three men Ms. Christof a conversation with row carried on away feet when made this ten she Quintero. ring her He tried to sell a class statement. pawn told him to take it to She $50. testified that she could Ms. Christof shop, he identifi- but he said didn’t have many pictures she had standing how right
remember cation. The three men were Stout, Agent picked register, out for Richard who the cash and she was able around however, photo line-up, get good she at them. Ms. Morrow testi- showed her the look Christof) time, “[Ms. number five fied that about this picking out remembered *32 Memphis day, said, you all officers from did That same came out of back and she station department came to the bus police up prisoners those that broke out hear about up. He photo-line Mr. Jones the and showed said, just you And she all look in Tennessee. photographs co-defendant selected they And then like them. left.” Blanton, Quintero, appellant appellant and later, Agent days interviewed Two Stout police never Hall. Mr. Jones testified that the photo- Ms. Morrow showed her the same the sus- to him which ones were indicated array. ap- graphic picked Ms. out Morrow days they Two pects or what had done. Hall, pellant Quintero, appellant co-de- later, Agent Mr. T.B.I. Stout interviewed appellant fendant Blanton. She testified that photograph- him showed the same Jones and Quintero heavier than the was and shorter the same array. Again, Mr. Jones selected ic appel- other two men. She also testified that able photographs. Mr. Jones was three Quintero thought had a lant beard. She but identify appellant Hall in the courtroom clean other two were shaven. Quintero. identify appellant unable to was cross-examination, following col- During trial, that she At Ms. Morrow testified loquy occurred: (Blan- photograph out one picked numbers (Hall) ton), photo let me (Quintero), Q. lineup, on the and six from Now five you, just one more hand this back line-up. only was the She witness who two, question particular on that identify able to both in the court- Spanish lineup, many people how pointed appellant room. She out that you descent do see on there? Quintero glasses not have did when he came Spanish A. looks like to me. and that had One the store he looked like he weight. Oddly enough, lost Morrow Q. Ms. one is that? And which (Blanton) being identified number one as number A. That’s five.
mixed descent. then, you Q. And for number five couldn’t identify positively him other than the Finally, Curtis Jones at the hear- testified Spanish? fact that he is ing guard he had been a at the security that identify way A. That’s the I could Memphis Greyhound As bus station in 1988. way he him with his—the size and the job, part people he came observed looked, neck, only way, that’s the they station to either into the bus ensure that just looking straight but him waiting had a bus ticket or for someone were face, get him. I didn’t a chance to see to arrive. On June Mr. saw three Jones Well, you’re Q. assuming then because into All white men come the bus station. one, Spanish he must that was a hair, long the men had one was dark skinned you the one saw? Spanish, and looked and the other two men pretty A. I’m sure that’s him. white and had Mr. Jones were mustaches. Q. you him since? And haven’t seen that two of testified the men sat down No, I haven’t. A. began watching Hispanic- television while the looking telephone. man used the One argument testimony Based on the television, watching he identified men whom counsel, trial allowed all three court Hall, appellant talking to a black man as however, testify, Mr. Jones witnesses waiting on someone arrive. When identifying testify instructed not about tickets, buy ap- Mr. Jones men did he line-up since appellant if proached the two seated men and asked Quinte- actually able to was not see man, trial, they had tickets. whom Mr. Jones At when ro’s face at the bus station. Blanton, told him photographs pick identified as co-defendant which he was able asked friend they out, inadvertently leave soon as their that he would Mr. Jones testified phone, one, five, using the did. picked finished out number number immediately trial in- testified the three men number six. The court Mr. Jones jury to approximately disregard five to ten Mr. Jones’ in the bus station structed concerning (Quintero) five statement number minutes. *33 line-up not taint the witnesses’ previously photo had that did because the court ruled the appellant Hall. identify Mr. number five identification of Jones could not (Quintero) line-up. from the concerning the identi- The same is not true Quintero. appellant of Both Mr. fication occasions Our Court has held several Jones, testify although allowed he was not pre-trial that a identification was admissible Quintero, Ms. appellant that he identified notwithstanding photograph fact the the that the was testified that one of men Christof peculiar of the accused contained characteris- they picked five Hispanic and that number remaining photo- tics in the not contained (Quintero) Hispanic he because was See, State, graphs. e.g., Young v. line-up. was able While Ms. Christof (accused (Tenn.Crim.App.1978) was minutes, appellant Quintero a few to view only person depicted grow- with hairs “short he only description of him was that her chin”); State, ing his from Cross skin. Mexican because of his darker looked (ac- (Tenn.Crim.App.1976) S.W.2d Moreover, that rec- Ms. testified she Christof only person depicted having an cused with ognized newspaper men the three State, hairstyle); Shye v. unusual Further, morning. that had read earlier she (Tenn.Crim.App.l973)(accused testimony, Ms. from a review of the Chris- lighter than others skin and was heavier ap- certainty her of as to identification tofs depicted remaining photographs in the dis- Quintero pellant at the time of the confronta- played). Hispanic appeared to be based on his tion Initially, we that set note under test jury-out hearing, At Ms. Chris- descent. Biggers, array forth in Neil v. was not identify appellant Quintero tof was unable impermissibly to taint Mr. suggestive as fact, courtroom, she did see of Jones’ and Ms. Morrow’s identifications Biggers, Hispanics the courtroom. Under appellant Hall. able to view Mr. Jones was of we that identification find Ms. Christofs appellant Hall to ten minutes. More- for five Quintero photo line-up was appellant over, job to monitor who came and unduly suggestiveness tainted of appellant at the Because went bus station. However, line-up. photo given identifica- did not have Hall and co-defendant Blanton Quintero by Morrow and the tion of Mrs. tickets, Mr. talked the two men Jones allowing guilt, evidence of the error other there, giving him an about their business testimony was identification Ms. Christofs appellant view opportunity even better beyond a doubt. harmless reasonable description gave an accurate Hall. Mr. Jones testimony Finally, we Morrow’s review Ms. Hall, appellant was shown the he concerning appellant her identification day photo line-up as the men had the same Quintero. good opportu- Ms. Morrow had Accordingly, Mr. been to the bus station. Quintero. dis- nity appellant to view As properly testimony was Jones’ identification earlier, testified that the three cussed she Big- under criteria set forth admitted standing around her at the cash men were gers. appel- Ms. testified that register. Morrow testimony as to the The same true Quintero her six dollars and lant sold silver Morrow, the three Ms. who conversed with ring. he tried to sell her a class She they right cash men around the while stood he tried to convince her also testified that register. Ms. that she Morrow testified stay p.m. their ride let them until when appellant that did most thought one court, Morrow iden- would be there. Ms. talking, get and she was able noting he appellant Quintero, tified good men. When Ms. Morrow look he weight lost like he had looked line-up next photo within the wearing glasses shown saw been when she had not identifying Agent days, few she had trouble bookstore. Stout him at adult Moreover, identifying description appellant gave Hall. when that Ms. Morrow testified courtroom, Ms. Morrow her the next appellant Hall in the of men when he interviewed photo her the day. Agent same. Ac- then showed his face looked the Stout noted that immediately picked out any suggestiveness line-up, and she cordingly, we find Biggers, find that Ms. three men. Under we photo line- from the think,
Morrow’s identification have tied them they could You well through up and her in-court identification Mr. Vester up, but shot unduly get tainted were not a chance to he ever had window before *34 line-up. suggestive photo bed, him there in his slaughtered otherwise out of
bed.
sustained,
jury instructed
AT
[Objection
ARGUMENTS
CLOSING
disregard]
GUILT/INNOCENCE
PHASE
Although counsel for
appellants
prosecu
that the
The
contend
language
“slaughtered”
not refer to the
did
during
improper remarks
tion made several
ap-
for
during
closing argument, counsel
his
arguments
guilt/innoeence
closing
at
the
the
commented on
pellant
repeatedly
Hall
phase
the trial. The standard of review
terminolo-
prosecutor’s
the
offensiveness of
determining
counsel was allowed too
whether
Also-
Subsequently, during General
gy.
during closing argument
much latitude
argument, he made the fol-
closing
brooks’
Sutton,
abuse of discretion.
lowing comments:
(Tenn.1978).
Closing argu
S.W.2d
objected my
he
gentlemen,
Ladies
temperate,
predicated
ment must be
must be
to the deaths
he referred
co-counsel when
trial of a
on evidence introduced
the
right back
slaughter and comes
there as
case,
pertinent
the
and must be
issues
and—
being
prosecutor may
tried.
Id. The
state an
[Objection
Jury
instructed
sustained.
necessarily
ultimate conclusion which would
already
has
disregard because the issue
testimony
prosecution
if the
follow
ruled on]
been
by
jury.
witnesses was believed
‡
‡
‡ $
(Tenn.1992).'
Brown,
objections
certain
Again, there have been
Moreover,
parties
given the
both
must be
language
those
to describe
made to
argue
opportunity to
the facts
adjec-
put your
can
own
incidents. You
any
record but
reasonable inferences there
happened
night.
tives to what
Cone,
from. State v.
objection.]
[No
(Tenn.),
denied,
1210, 104
cert.
467 U.S.
S.Ct.
gave a curative
(1984).
The trial court
instruction
Having
159 high of determina thing moral less than level certainty phraseology content to the constitutionally required in criminal Thus, tion trial court. used expressed criticism the Court cases. While that there was a likelihood argue reasonable certainty” use of the “moral of the continued convic understood it to allow actually hold that phrase, the did Court proof tion on insufficient violation based Instead, constitutionally invalid. Louisiana, Cage set forth in standard jury charge the full to deter looked to Court 39, 41, 329-30, 111 112 498 U.S. S.Ct. phrase placed if such mine (1990) Nebraska, L.Ed.2d 339 Victor v. that it that a would understand context 1, -, 1239, 1247-48, U.S. S.Ct. certainty af respect to human meant (1994). L.Ed.2d 583 at -, In at 1247-48. fairs. Id. S.Ct. case, following language this particular, Supreme concerned Court was 2.03, gave T.P.I. —Crim. the trial court uncertainty” “ac “grave with the terms jury: instruction Louisiana, Cage doubt.” tual substantial engen- doubt Reasonable is that doubt 329-30, 39, 41, S.Ct. U.S. investigation all the dered L.Ed.2d inability and an investi- the case after such case, particular con- In this terms gation easily to let the mind as to the rest Supreme cern to United States *36 certainty guilt. of does Reasonable doubt jury charge. in In not included were capricious, imagi- possible, not mean the cases, upheld this Court similar several has nary certainty guilt Absolute is doubt. of instructions as consistent with constitutional by any not demanded law to convict of State, Pettyjohn 885 principles. See v. certainty charge but criminal morale [sic] 364, (Tenn.Crim.App.1994); 365-66 S.W.2d required, certainty required and this is is Hallock, 285, More- State v. S.W.2d 294. 875 every proposition requisite to as to of over, “the Supreme our Court has held that the offense. constitute phrase certainty’ by ‘moral itself is use of the prove must to invalidate an instruction on beyond The State a reason- insufficient v. meaning of reasonable doubt.” State able doubt all the elements of the crimes Nichols, charged; that the if in fact commit- crimes committed in ted were the defendants Thus, charge trial given by full Tennessee; County, and Stewart court, although containing phrase “moral finding committed before the and were certainty,” appellants’ did violate the presentments returning of the of this case. Tennessee rights under United States or Constitutions. charge, Later in the trial court in- jury:
structed the AND ARREST EXTRADITION justified, of guilty Before a verdict FROM MEXICO together taken circumstances must be of Quintero argues imposition Appellant tendency leading nature and conclusive penalty process of the death violates his due satisfactory pro- to a conclusion and whole Tennes- rights under the United and States certainty in effect a [sic] duce morale unlawfully because he see Constitutions the defendants and no one else committed process in without a warrant or other seized the offense. Paso, Juarez, Mexico, and El transported to Nebraska, In v. the United States Victor Texas, by acting in concert Mexican officials phrase ruled “moral Supreme Court agents Consequently, in F.B.I. Texas. certainty” may have lost mean its historical sen- appellant asserts that his death juries, ing that modern unaware of the illegal and fruit of an action tence is the meaning, might Al- agents government. understand “moral of the United historical States abstract, corpus filed in certainty,” though petitions to mean some his habeas 1491, Strouth, (1982). 1994); (Tenn. 71 102 S.Ct. L.Ed.2d 692 805 (Tenn.1981), denied, U.S. 471 cert. 455 160 denied, uphold of this Kentucky he We the denial relief
Texas
four
which we
sup-
case because the
seizures
findings
of
claims that
these courts
fact,
but
presented,
have been
reflect
port
his claim that his seizure Mexico
A
occurrence will
two transactions.
third
transport
States
United
violated
probability
all
consideration
necessitate
rights
judicial
appoint-
process
and the
fact,
not,
seeing the
are
of whether we
ment of counsel under Mexican Constitu-
pro-
organized, coordinated
of an
results
obligation
tion
under Mexico’s
under the
kidnapping which
gram of international
Rights.
on Human
American Convention
region-
least
policy
has become a
this
Moreover, appellant Quintero argues that the
agency and
That
al branch of the F.B.I.
presence
acquired so
means which his
acting
agency
any other law enforcement
that he could be sentenced to death “shocks
well-
activity
would be
in concert
such
process.
of due
conscience” in violation
rely upon this Court’s reso-
not to
advised
merit.
find this issue to be without
We
Quintero-
Day-Day
lutions
process
In
to determine whether due
order
applies to
This caveat
Blanton cases.
requires
must
that an extradited defendant
occurring after the date
such seizure
returned,
two-prong
ap-
must
test
be
Otherwise, Appellant’s four
opinion.
(1)
plied:
procedure
chal-
the extradition
are overruled.
points
error
(2)
trial,
lenged in advance of
did an
(Tex.
State,
Day
536
S.W.2d
evidentiary hearing
con-
establish
1988).
State,
Quintero v.
App.
Paso
See
—El
ille-
governmental
duct
authorities was so
1988),
(Tex.App
Paso
162 Mrs. that the torture and the —that Vester OF PHOTOGRAPHS
ADMISSION
blood, somebody’s
run
in her own
around
AT SENTENCING PHASE
I
her feet.
think
obvious on
blood.
It’s
photo-
contend that
certainly
probative
picture
has
that
graphs
body, which
of Mrs. Vester’s
were
prejudicial.
it’s not that
It’s
value and
sentencing phase,
at the
even if
introduced
crime,
horrible
but this is horrible
scene
relevant,
because
should have been excluded
objection
your
as
going
I’m
to overrule
so
substantially outweighed by
their value was
# 290
admit that.
danger
prejudice
of unfair
or an undue
photographs of the vic
The introduction of
tendency
suggest
to the
reach
sentencing phase in
body
order
tim’s
at
a decision based on emotion. We find that
heinous,
atro
prove
that murder
properly
trial
the state to
court
allowed
cious,
repeatedly upheld.
or cruel has been
photographs
introduce these
to show that
McNish,
490,
494-95
See State
heinous, atrocious, or
especially
murder was
denied,
(Tenn.),
873, 108
484 U.S.
S.Ct.
cert.
cruel.
Smith,
210,
(1987);
98 L.Ed.2d
jury-out
court
hearing,
At a
the trial
deter-
denied,
(Tenn.1993),
cert.
photographs
of which
mined that
three
960, 115 S.Ct.
Gentlemen,
going
I’m
to admit Exhibit
atrocious,
heinous,
Mrs.
der of
Vester was
#288,
and 288 will show
cruel.10
you can
everything
expect
see
concerned
Exhibit
far as the State is
ATROCIOUS,
HEINOUS,
CRUEL
AND
that, the
#287 and 285.
In addition to
AGGRAVATING CIRCUMSTANCE
one,
more of an
the Exhibit #288 shows
Pointing
in-
language
bed,
struggle on the
evidence of a
court,
given by
appel-
struction
the trial
floor,
wall,
And also
the bathroom.
argue
aggravating circum-
lants
go-
struggling, so I’m
286 shows extreme
39-2-203(i)(5)
stance set forth
T.C.A.
ing to
those.
admit
(that
(1982),
especially hei-
the murder
*39
photograph
Mrs. Vester’s
The third
shows
atrocious,
nous,
in that it involved
or cruel
admitting
this
feet with blood
them.
mind)
constitution-
depravity
or
of
is
torture
trial
photograph, the
court held:
that
vague.11
appellants contend
ally
The
undefined
aggravating
#
the feet of Mrs. Ves-
Exhibit
290 shows
circumstance
defining
opinion
“depravity
that
of
and is not cured
ter. The Court is of
or a wicked or
corruption
as
mind”
moral
go and is admissible
show
picture does
produce
necessary to
death. Be
body
beyond that
Although
photograph of
Vester's
one
Mr.
place
was also
to show that
murder
took
was admitted
of Mrs. Vester
cause
murder
cruel,
heinous, atrocious,
jury did not
or
1988,
depravity mind" stan
of
“torture
appellants to death for the murder
sentence the
39-2-203(i)(5)(1982) was
§
T.C.A.
dard found in
Mr. Vester.
Cazes, 875 S.W.2d
properly applied. See State v.
908,
Smith,
253, 267;
v.
893 S.W.2d
920
State
statute,
13—204(i)(5),
present
T.C.A.
11. 39—
829,
denied,
(Tenn.1994),
116 S.Ct.
cert.
516 U.S.
1989,
1,
that the mur-
states
effective November
der
99,
(1995).
163 shot, he could thus, Vester was act, making aggravating the arm Mrs. perverse when a that this was possibility rule out the circumstance unconstitutional. Moreover, presence of wound. defensive repeatedly held Supreme Our Court has bedroom, bed, blood Mrs. Vester’s un aggravating circumstance is not that this struggle was clearly indicates bathroom constitutionally vague or overbroad. See involved. Williams, 517, 690 526-30 State v. S.W.2d 908, Smith, (Tenn.1985). Black, in State v. 893 S.W.2d See also State v. 815 As Barber, torture 166, 181; supports finding of either v. 753 S.W.2d evidence S.W.2d State Moreover, 659, (Tenn.), denied, 900, Id. at 920. depravity cert. 488 U.S. of mind. (1988). 248, 102 easily distinguished from the L.Ed.2d 236 S.Ct. this case is (Tenn. Odom, v. 928 S.W.2d facts State aggra- appellants argue also that this 1996),12 Supreme held vating appropriate circumstance not an “rape (penile penetration) does not ordi basis for a death sentence this case be- physical or ‘serious narily constitute ‘torture’ finding support cause the evidence does not meaning of the statute.” abuse’ within “tor- that the murder of Mrs. Vester involved also found “[i]n Id. at 26. The Court depravity appellants of mind.” The ture or vein, disclaimer similar and with the same argue that the murder did not involve torture reject the conclu above-appearing, we must wounds, because there were no defensive evidenced sion that the three stab wounds possible exception shotgun with the or serious constituted ‘torture’ this ease forearm, right to the victim’s wound beyond necessary pro physical abuse because there no torture wounds. duce death.” Id. Moreover, appellants argue there is mind, proof depravity citing State case, present Based on the facts Tran, 479-80. The Van S.W.2d above, proof of torture and de set out appellants physi- also assert that there is no overwhelming. pravity of mind is Cf. placing cal evidence them at the scene of the Smith, 561, 579-80; State v. showing murder or that either of them were (victim McNish, beaten actually the ones who shot or stabbed at least several times and remained alive and victim. We find that the evidence over- ordeal); throughout her partially conscious whelmingly supports application ag- of this (Tenn.1985), Zagorski, 701 gravating factor. denied, 478 U.S. 106 S.Ct. rt. ce (1986)(infliction gra Here, L.Ed.2d 722 showed that Mrs. Vester mutilation of initially tuitous violence and needless shot from her bedroom window. already helpless from fatal was then shot two more times. One of victims who were She wounds). merit. shotgun was from a This issue is without wounds blast nearly strug- severed her forearm. As she FELONY-MURDER AGGRAVATING herself, gled stepping in her own save CIRCUMSTANCE times, blood, resulting in she was stabbed 13 error to contend that was the two fatal wounds. The medical testimo- felony-murder as an could have allow the state to use ny indicated that Mrs. Vester sentencing receiving aggravating circumstance at the minutes after up lived to fifteen convicted of hearing after had been The medical examiner testi- these wounds. wounds, first-degree perpetration no torture murder fied that there were *40 Middlebrooks, torturing burglary. purpose of See inflicted for the wounds (Tenn.1992). agree, victim, wounds, We with the S.W.2d the or defensive Howell, however, under State v. exception the to Mrs. potential wound 238, 259-62, error was we find that this Because the medical ex- forearm. Vester’s position of harmless. not determine the aminer could heinous, produce death in order to be found the current statute to
12. Odom was decided under atrocious, requires that the murder involve torture which or cruel. necessary beyond physical or serious abuse larceny. grand larceny, petit The state felony-murder aggravating circum- and re- argues jury § because the could have is forth in T.C.A. 39-2- stance set 203(i)(7)(1982): applying lied on of these other felonies one circumstance, felony-murder aggravating the was committed while the
The murder violation. We find there is no Middlebrooks committing, engaged in or defendant was holding requires something in Hines of, accomplice in or was an the commission more. commit, or attempting fleeing to commit, committing attempting or after to opening During its statement the sen- murder, arson, rape, rob- degree first felony- tencing the phase, the state read bery, air- burglary, larceny, kidnapping, jury aggravating circumstance to the murder placing piracy, throwing, or unlawful craft circumstances, our we’ll “[i]n and then stated discharging of a device or destructive felony talking burglary. That’s about bomb; murder, aggravated the circumstance.” Moreover, during closing argument, the state Middlebrooks, Supreme the Tennessee charge “I will jury Judge believe the told the precluded from held that the state is Court you, murder was committed while the felony-murder aggravating cir using as an committing or was engaged defendant was underlying is cumstance when the conviction attempting accomplice to or was an commit However, felony-murder. Id. at 346. of several crimes. And commission Hines, (Tenn.1995), —— by your verdict that that has been found denied, 133, 136 U.S. -, cert. S.Ct. murder these committed while defendants (1996), Supreme held: L.Ed.2d 82 degree burgla- perpetrating the crime of first case, Where, felony as in the not instant argued ry.” Later the state felony underlying the murder conviction is “[tjhere’s question you no found it felony aggra- support murder used verdict, your that these murders were first circumstance, vating duplica- is there defendant, these while the defen- committed Furthermore, under these facts the tion. case were dants and their cohort this applied as re- aggravating circumstance robbing burglarizing, Vesters discretion to those stricts sentencer’s question taking car. No one would their multi- perpetration kill while in who that, by your there’s no doubt about felonies, a class of murderers demon- ple jury returned original verdict.” When the blameworthy strably smaller and more verdict, specify felony its it did not eligi- general than the class of murderers applying this relying felonies it was penalty ... these ble for death Under circumstance, thus, we are left circumstances, aggravating felony than where a other jury’s speculate as the basis of prove offense that used to the substantive aggravating cir- decision. used to establish the is cumstance, prohi- there is no constitutional after case released this Middlebrooks was against aggravating use of bition tried, for new the motions but before 2—203(i)(7) support circumstance in 39— hearing on the trial heard. At were imposition penalty for of the death trial, the trial court ruled: for new motions felony murder. felony I’m if—that going to rule that “the 583. The Court also stated that Id. at error in this case—I murder was harmless felony underlying the conviction in this case it, I don’t considered think even clear, is use of the two different and got something to look at to think we’ve (cid:127) aggrava- additional felonies establish is, in saying show ... I’m didn’t What jury.” by the Id. ting circumstance found here, I’m got this case we’ve it’s different. case, appellants going grant trial. I’ve present new
In the thought thought dur- about about it of Mrs. the murder Vester convicted first-degree burglary. the Middlebrooks case two or read perpetration ing times, Vesters, I just three feel like this case is in relation to the Also *41 burglary, first-degree different. convicted were ultimately tentially the sentence way they in influence Because of the found Mr. imposed. opposed to Vester’s case as Ms. Vester’s
case, every aggravating circumstance that include, without These factors Id. at 260-61. been used in both cases ex- limitation, could have following: different, escaped, felony cept they (1) remaining strength The number —it’s murder, everything used Mr. Vester’s circumstances. aggravating valid ease was used Ms. Vester’s case. And (2) argument at sentenc- prosecutor’s penalty they ruled that it was not a death ing. case, it case Mr. Vester’s ruled was (3) to establish The evidence admitted hers. You could come down aggravator. invalid and cru- final conclusion that the atrocious (4) nature, strength of quality, and part charge they el of the was what consid- mitigating evidence. going I’m that and ered and rule like Id. at 261.
that’s it.
Howell,
jury
aggravating
In
found two
us,
(1)
the record
cannot
On
before
Court
that
the defendant
circumstances:
felony
jury
determine
or felonies the
one or more
previously
convicted of
been
applying
felony-murder ag-
involving
on in
or threat of vio-
relied
felonies
the use
(2)
lence,
that
the minder had been
gravating circumstance. The trial court did
engaged
jury
aggrava-
the defendant was
not limit its
instruction on this
committed while
§
felony.
39-2-
committing
T.C.A.
ting circumstance to the felonies involved in
203(i)(2)
(7) (1982). Howell, charged
jury’s
charge,
this
As with the
case.
quick
felony murder of a
first-degree
verdict included all the felonies listed
shop employee,
previously
had been
convict-
statute. This Court cannot assume that
murder,
murder, attempted
first-degree
ed of
felony
than first-de-
relied on
other
armed robberies.
two
gree burglary, especially
light
pros-
of the
Thus,
argument
jury.
ecution’s
use of
review,
In the case under
aggravating
circumstance
invalid un-
statutory
possible
instructed to consider five
However,
der
Middlebrooks and Hines.
(1)
aggravating
ap-
circumstances:
earlier,
application
stated
we find that
of this
previously convicted of one
pellants had been
circumstance was harmless error under State
involving
more felonies
the use or threat
or
Howell,
v.
259-62.
(2)
person,
that the murder
of violence to the
atrocious,
heinous,
or cruel in
especially
mind,
depravity
or
that it involved torture
HARMLESS ERROR ANALYSIS
(3)
committed for the
that the murder was
appellants argue
under
State
with,
avoiding, interfering
pre-
or
purpose of
Howell,
238, the invalidation of
prosecution
or
venting a lawful arrest
aggravating
one or more
circumstances re-
(4)
another,
the murder
appellants or
quires that this matter be remanded for re-
appellants
were
was committed while
sentencing. Although we find two of the
committing
accomplices
engaged in
or were
applied aggravating
are invalid in this
factors
of,
attempting
or
in the commission
were
case,
determined that their errone-
we have
commit,
committing or
fleeing
or
after
were
application was harmless error.
ous
commit, any first-degree mur-
attempting to
Howell,
Supreme
In
our
der, arson,
larceny,
rape, robbery, burglary,
held that:
kidnapping,
piracy,
aircraft
or unlawful
precision
guarantee
discharging
throwing, placing,
order
or
of a de-
(5)
bomb,
sentencing considerations
individualized
structive device or
provide
principled explana-
demand and
was committed
murder
case,
custody
in a
conclusion in each
it is
in lawful
tion
our
while
conducting
their
important,
place
harmless er-
of lawful confinement
when
custody
place of
review,
escape from lawful
or from a
completely
ror
examine the rec-
2—203(i)(2),
po-
lawful confinement. T.C.A.
presence
for the
of factors which
ord
39—
*42
(5),
(7),
(8) (1982).
(6),
proof,
is
as in
returning
and
In
its
siveness increases where there
case,
verdict,
prior
of
than
violent
aggravating
the
found all five
this
more
one
Nichols,
v.
felony
circumstances.
conviction. See State
722, 738.
S.W.2d
Initially,
support
finding
several factors
earlier,
First,
Furthermore,
the
of harmless error under Howell.
as discussed
evidence,
proof
Mrs.
any
additional
nor
evidence that
that
the murder of
Vester
heinous, atrocious,
already
it
properly
jury,
or cruel in that
involved
was not
before
strong.
support
ag-
depravity
or
of mind was
was introduced in
of the invalid
torture
gravators.
Supreme
upheld
has
sen-
sentencing hearing,
At
the Our
Court
death
only
proof
prior
aggrava-
valid
state
introduced
of the
con
tence where this was
proof
remaining.
v.
ting
and
circumstance
See Barber
victions
the murders were
Second,
185,
heinous, atrocious,
State,
Finally, proof
889 S.W.2d
190.
cruel.
while
prosecutors
during
five
aggra
did talk about all
that the murders were committed
custody to
vating
opening
escape from lawful
during
appellants’
circumstances
and
supported by
proof.
also
closing argument,
their main focus was on Mexico is
heinous, atrocious,
aggravator.
or cruel
although
of
Accordingly,
find that two
we
State,
185,
Compare Barber v.
applied
aggravating
five
circumstances
(Tenn.1994),
denied,
cert.
189-90
U.S.
invalid,
it is clear that
are
1184,
1177,
L.Ed.2d 1129
115 S.Ct.
was harmless under Howell. There-
error
(1995).
prosecution’s
emphasis
The
other
fore,
of
are
appellants’ sentences
death
both
status,
appellants’
espe
escapee
was on the
affirmed.
contrast,
cially during
phase.
guilt
proof
THE
mitigating
was minimal.
DEATH
OF
CONSTITUTIONALITY
PENALTY STATUTES
To
application
determine
of the
whether
raising any
appellants argue,
The
without
felony-murder and avoidance of arrest or
'
§§
specific
39-
challenges, that under T.C.A.
aggravating
prosecution
circumstances
(1982),
meaningful
is no
error,
2-203 and -205
there
necessary
is
to review the
harmless
eligible
Spe-
narrowing of death
defendants.
weight
remaining
aggravating
of the
three
cifically,
appellants
Tennes-
assert
(previous
circumstances
convictions
felo-
penalty statutes have resulted
violence,
see’s death
involving
nies
the use or threat
arbitrary
capricious
heinous, atrocious,
and
infliction
cruel,
the murder was
Sixth,
Fifth,
penalty
death
in violation of
during
murder
es-
and the
was committed
Eighth, and Fourteenth Amendments
cape
custody).
from lawful
I,
and Article
United States Constitution
First,
appel-
state
presented
II,
8, 9, 16,
§§
and
2 of the
Article
previously
lant
had been
convicted
Tennessee Constitution.
Kentucky
escape
de-
twice in
first
.in
rejected by our
robbery.
argument has
gree
first-degree
This
been
and once of
occasions. See
presented proof
Supreme
Hall
Court on numerous
state also
335;
Middlebrooks,
sepa-
previously
of two
S.W.2d
been
convicted
State v.
Howell,
degree charges,
258-59.
rate
the second
assault
State
endangerment
repeatedly that
degree,
Supreme
in the first
has
wanton
held
abetting
stat-
aiding
threatening
under
Tennessee
the death sentence
imposed capriciously
life
of the President
Vice-President
utory scheme is not
Howell,
arbitrarily.
Shepherd,
States. As stated
S.W.2d
United
Smith,
remaining
907;
“more crucial than the sum of the
qualitative
aggravating circumstances is the
merit.
This issue is without
circumstance,
nature of each
its substance
AT
CLOSING ARGUMENTS
persuasiveness,
quantum
as well
PHASE
PENALTY
proof supporting
it.”
diately, prosecution following Thus, theory made relevant to some “unless defense, by proof, or the State[’]s remarks: raised interjects jury’s into consid an element gentlemen, Ladies and the facts this Id. In provided for the law.” erations not case, Judge under the law that Wallace will Bates, theory mitigating the defendant’s you, you have give under the facts mentally disturbed to that the defendant defendants, requires heard that these both culpability, degree that it lessened his such a individually you consider their of them — confined for the rest of that he would be they individually requires that cases —it life, be amenable natural and that he would row, pose put death where won’t and rehabilitation. Su to treatment community again. type this of threat argument preme held that state’s the evidence in what the law and That’s deterrence was direct concerning specific requires. case theory response to the defendant’s Id. improper under the circumstances. you case, trial you jury, I believe have as found present And as the In the court, to such community against opened Hall the door right protect your if proof sen- argument presenting people. these way other requires. ease There is no imprisonment, could become in this tenced life he And, “you jury, I you it.” citizen, can look at leaving impression productive right protect your you have the believe stay going that he was ap- community against people.” these *44 Although Quintero waived prison. objection was pellants objected, the sus- proof implied that he closing argument, his tained, gave a curative the trial court given if life sentence. could be rehabilitated objection, prosecu- the instruction. Without Irick, v. Regardless, pointed out in as State went on to state: tion 121, reviewing propriety the it, impose if it can’t be And we don’t capital sentencing proceeding, argument in a by has done our Consti- imposed. It to be reviewing court must determine whether the just done it in this case. like we have tution prosecutor’s sen- the comments affected the proce- following the by to done It has be tencing 181. “If the decision. Id. at procedure. that dure. have followed We say no effect on cannot the comments had the law or we can And we can either follow sentencing, jury’s the then the decision does law, you asking I’m not to ignore the reliability required not meet the standard of the facts in this case ignore the law and (citing by Eighth the Id. Amendment.” appropriate the facts and do what is under 320, Mississippi, 472 105 Caldwell v. U.S. under law. the (1985)). 2646, S.Ct. 86 L.Ed.2d possibly be last comment could While the proof presented, it is clear that Based the the dictates of Cald- violating as construed jury’s not the these few comments did affect well, necessarily gave to nor meant it was not sentencing decision. respon- impression that the the prose- the next assert that Regardless, deciding verdict. for the sible jury’s responsi- cutor diminished the sense gave following instruction trial court bility determining the sentence violation sentencing hearing: at the end of the 320, 105 Mississippi, 472 U.S. of Caldwell determine, within your duty It is now to S.Ct. 86 L.Ed.2d law, penalty by prescribed the limits Caldwell, Supreme In Court stated punishment imposed as for shall be which constitutionally impermissible “it to that In for each offense.... each defendant on a a death sentence determination rest determination, you arriving are au- at this by been led to made a sentencer who has any weigh miti- and consider thorized to for determin responsibility believe of the statu- any gating circumstances of the defendant’s ing appropriateness may tory aggravating circumstances 328-29, 105 Id. at death rests elsewhere.” through- been raised the evidence have reviewing alleged trial, an viola including at 2639. S.Ct. of this out the entire course Caldwell, “first sentencing the Court must finding phase tion under or the guilt prosecutor’s Jury, com are the sole whether You the phase determine both. facts, it they of the law as judges were such that would ments facts in these cases. jury’s respon applies role sense minimize determining appropriateness sibility for West, error, any, in if Cazes and Under and, so, if a sentence whether of death as rendered prosecution’s argument was judge sufficiently impres corrected trial not endorse trial court did harmless. The Cazes, prosecutor.” left sion correctly it in- argument,' and the state’s West, 253, 263; S.W.2d jury before deliberation. structed the denied, (Tenn.1989), cert. Next, that appellants submit 111 L.Ed.2d 110 S.Ct. U.S. closing prosecution in its improper (1990). argument to state: made comments prosecution couple, they didn’t Murder of an innocent requires closing argument prison such “it anything to do with the have row, they They anything won’t they put Eddyville. on death where didn’t have They just were community enforcement. type of threat do law pose semi-helpless elderly couple what the law and evidence again. That’s prosecution closing arguments, During They there on almost. had retired over following comments: made the Kentucky right to live Lake. Had heard go you, we haven’t the lake and I little house overlooked In fact submit I think [mitigating circumstances]. fishing grandson their come and have down [Objection overruled] # [*] 5jC [*] visit with them. the definition like to moderate heard alleviate or anything. to become milder. mitigation goes What in force or has been shown intensity, something I haven’t many chil- I under the law of our How mitigation believe that in this ease? [B]ut Vester, land, been raised Mrs. in this world have that Mr. and dren *45 drink, clothes too right maybe wore go living. They parents on had the that right to mitigate Does that to school? Thanksgiving big and for them to have been alive this to Mr. and Mrs. Vester? They rights. happened children. had what had their Quinte- asked the Defendant they are You know we They rights. though Even uncle; well, brought up in a you were earth, ro’s these not alive on the face of this what he turned out to be good home. One designed make rights our law was —and the others good, not so and described as they rights. get have So don’t lost sure excuse, an ladies good. That’s not were rights on what the defendants’ this case If type of murder. gentlemen, for this are— I was born my died the week before father [Objection overruled] around, a father does I didn’t have sj: i¡s ;jc slaughter mitigate go if I out and somebody what, in their bed? you people But I will tell these two ‡ ‡ there somewhere that are buried over ^ They County right, too.
Stewart
have
if
mitigation,
you heard
You know what
right
protection
to the
of the law.
have a
mitigation
First of
there.
there was
any good....
do them
all,
yet
It’s too late to
hear
really know—I
I don’t
have
like it would
anything that sounded to me
797,
Bigbee,
In State v.
885 S.W.2d
against
happened
what
mitigate
Supreme Court held that
it was reversible
Vesters.
prosecutor
reminded the
error where
[Objection]
jury
no one there to ask
that there had been
Yes,
gentle-
THE
ladies
COURT:
mercy
encouraged the
for
for the victims and
that,
gentlemen,
men —I sustain
ladies
jury
give the defendant the same consider-
opin-
attorney
give
personal
his
cannot
given
ation that he had
his victims.
Id.
you, disregard it.
ions to
finding
prosecutor’s argument to
812. In
(Tenn.
Payne, 791
10
In
v.
S.W.2d
State
argu-
improper, the
stated that the
Court
2597,
808,
1990),
115
aff'd,
111 S.Ct.
501 U.S.
jury
retalia-
“encouraged the
to make a
ment
(1991),
Supreme Court ad
720
our
L.Ed.2d
decision,
tory sentencing
rather than a deci-
dressed this issue:
response to
a reasoned moral
sion based on
of Professional
It
of the Code
is violation
Id.
the evidence.”
7-106(0(4)
lawyers
DR
for
Responsibility,
remarks cannot be said
prosecutor’s
personal
express their
engaged in trial to
Bigbee,
nor
level of error found
rise to the
any issue involved
opinion about
jury’s sentencing
decision.
did
affect
they represent. This
justice
cause
908,
also,
Henley, 774
S.W.2d
See
con
repeatedly condemned such
has
Court
1031,
denied,
(Tenn.1989),
497 U.S.
cert.
Johnson, 743
e.g.
v.
duct. See
State
(1990).
3291,
gated comply requirements. all of its Therefore, Hall appellant submits DOUBLE JEOPARDY CLAIM BASED request state was not entitled withdraw its ON FOR CONVICTIONS FELONY- Compact on Detainers under Interstate MURDER AND UNDERLYING FEL- proceed under Uniform Criminal ONIES 40-9-101, Act, seq. Extradition et T.C.A. appellants argue appellant Because Hall was not tried within multiple their days, by the required Interstate Com- felony-murder, convictions for as well as for III, Detainers, pact argues Art. he felonies, underlying violated the double charges have been We should dismissed. jeopardy provisions Fifth of both the Amend support position. find no Hall's ment to the United States Constitution and sought When an accused in another I, § 10 of Article the Tennessee Constitution. Tennessee, state for committed crimes State, Briggs cite *47 may proceedings pursuant state initiate (Tenn.1978), Strouth, S.W.2d 157 and State v. Compact on or un- the Interstate Detainers (Tenn.1981), denied, 467 620 S.W.2d cert. 455 If der the Uniform Criminal Extradition Act. 983, 1491, 102 71 U.S. S.Ct. L.Ed.2d 692 under a defendant is returned Tennessee (1982). Detainers, Compact the on the Interstate try days state must defendant the within 180 Blackburn, v. In State 694 934 S.W.2d in of his return the state which the crimes (Tenn.1985), the Supreme Court held that 40-31-101, § Art. were committed. T.C.A. imposition single in the a trial of dual convic tempo- receiving III. The state receives felony-murder tions for both and the under rary prisoner custody the for the sole lying felony does not violate the constitution any purpose charges. of prosecuting untried prohibitions against al jeopardy. double Id. 40-31-101, § T.C.A. Art. V. appellate at 936-37. Our courts have contin Compact The on and Interstate Detainers felony- to hold that convictions for ued dual the Uniform Act do not Criminal Extradition felony underlying murder and the does not proceedings un- indicate that the initiation See, provisions. e.g., jeopardy violate double automatically precludes proceedings der one Barber, 671; 659, State v. State v. adopted under the The two Acts other. Zirkle, (Tenn.Crim.App. 890 S.W.2d important in facilitate “[t]o Tennessee the Johnson, 1995); v. transferring out duties of individuals into and This (Tenn.Crim.App.1989). issue is 884-85 charges, trial on and state for criminal among bring uniformity procedures merit. without by proper any request and all based 14. A detainer is "a filed a criminal the status of detainers indictments, justice agency com- with the institution in which a on untried information or 40-31-101, incarcerated, asking prisoner plaints.” pur- § prisoner Art. I. The is T.C.A. pose agency, agency need to the uncer- be held for the or that the be stems from the alleviate charges prisoner’s by when release immi- tainties created untried and detainers advised is Michigan, programs treat- Fex v. 507 U.S. S.Ct. which interfere with of inmate nent.” Hild, 1085, 1087, (1993). pur- ment and G. The L.Ed.2d 406 rehabilitation. Edward Agreement Penalty Agreement pose on Death the Interstate on of the Interstate Detainers expeditious orderly Proposal Change, MAR- "encourage Detainers Act: 29 J. Act is to A (1996). charges disposition SHALL L. of such and determination of REV.
HOLDER, Justice, concurring and
dissenting.
Young
several states.” State ex rel.
majority’s
in
I concur
conclusion
Rose,
(Tenn.Crim.App.
the defendants’ convictions and sentences of
1984). The main difference between the two
separately
affirmed.
I write
death should be
procedures
Acts is that
under
Inter
majority’s analy-
disagree
I
with
because
Compact
merely
state
in
on Detainers result
aggravating
sis of
circumstance Tenn.Code
temporary
receiving
transfer to the
state.
2—203(i)(8)
§
in
in
Ann.
this case and
Id.
39—
Odom,
(Tenn.1996). I
inapplicable in
the murder for
Odom because
the murder
furthered the
be on whether
in Ten-
Odom was sentenced to death
escape.
murder was committed
Whether
nessee was unconnected
and did not
escape
an arrest
is
to further
or to avoid
escape.
logic
further his
This
inaccurate.
Ann.
specifically addressed
Tenn.Code
Odom,
majority
that:
13—204(i)(6).
(i)(8),
noted
howev-
The focus
39—
er,
status when the
is on
defendant’s
the defendant said that
initial intention
I believe that cir-
murder was committed.
her
was to accost Johnson and “snatch”
(i)(8)
pro-
provide
cumstance
was codified
purse
having
parking
after
seen
her
society
escaped
from
convicts who
tection to
garage
her car.
beside
likely
prospect
less
to be deterred
are
easily
Id. at 22. The
could
made a
have
committing
further confinement from
addi-
Odom,
logical
sound
after
inference that
posed
danger
crimes. The
Odom
tional
escaping
prison,
money and
needed
society
desperate escaped
convict need-
purse
killed
stealing
the victim while
her
(i)(8)
precise danger that
money is the
ing
money
continue
his es-
obtain
or further
*49
Obviously,
designed to deter.
the threat
cape.2 Accordingly,
have
jury could
further
did not deter
possible
of
confinement
found
es-
that Odom’s actions furthered his
Odom, already
imprison-
sentenced to life
majority
cape just
that Hall
as
concludes
murder,
victim,
robbing the
ment for
from
Quintero’s
actions furthered their es-
multiple
brutally raping
stabbing
her
her
issue,
cape. Because this Court raised the
times.3
however,
sponte and
sua
decided without
(i)(8) may
argument by
Aggravating
of
be
development
either
facts or
circumstance
(1)
prongs:
three
murder
party,
merely supplanted
either
this Court
broken into
while
argue
application
aggravating
of
circum-
3. The dissent in Odom indicates Odom’s com-
39-2-203(i)(8).
§
disregard
stance
Ann.
of
plete
Tenn.Code
for
law and welfare
others.
pleaded
noted that victim
with
The dissent
attack
apparent
initial
The
motivation for
Odom,
attack,
plea
during
stop
and in her
to
78-year-old victim
defendant
on the
was that the
The
to the defendant as "son.”
defen-
referred
purse.
by the
her
noted
wanted to steal
As
raped
give you
‘Til
a son” and
dant then stated
Odom,
78-
the defendant accosted the
dissent in
killing
apparent
retaliation before
her.
her
year-old
forced
car dur-
victim and
into her
her
ing
robbery attempt.
(2)
confinement;
only
of
lawful
murder while in ment” to be limited
to
actual act
(3)
custody;
during escape
leaving
prison facility grounds,
legis-
lawful
or murder
verb, i.e.,
escape
custody
ap
from lawful
or
a
confinement. As
lature should have used
case,
plied
prong
escaping
to
of this
from law-
the facts
first
“while the defendant was
Alternatively,
apply
killing
custody.”
legislature
would
to
ful
occurred
pursuit,”
to
prison
while
defendants were on the
could have limited the factor
“hot
done,
facility’s premises.
apply
by explicitly
The second would
as a handful
states have
only
limiting
application
if the
to
defendants
continued
be
the circumstance’s
“effect, perfect or
custody
lawful
when
murdered
to
committed to
the vic
murders
State,
827,
attempt
escape
during
perfect”
tims. See
v.
an
from
Burns
an
custody
(Tenn.Crim.App.1979) (holding
general-
or
inmate
lawful
confinement. See
190.2(5) (“The
custody
ly
§
murder
constructive
of correctional center
Code
CahPenal
although
receiving
avoiding or
unguarded
training
purpose
while
was committed for the
arrest,
college campus;
on
a
or
or
preventing
perfecting
unauthorized leave con
lawful
escape
perfect,
escape
stituted an
lawful
custody).
attempting
from lawful
an
from
200.033(5) (“The
prongs
applicable
custody.”);
Neither of these
is
this
Nev.Rev.Stat.
prevent a
case.
to avoid or
murder was committed
escape
or
from
lawful arrest
to effect
prong encompasses
a
third
murder
76-5-202(l)(e)
custody.”); Utah
Ann.
Code
“during escape
that occurs
from lawful custo
(“homicide
pur-
...
committed
Workman,
dy or
confinement.” See State
pose
effecting
escape”).
...
(Tenn.1984)
(i)(8)
44,
(holding
applicable
phrase “during escape” implies that
fleeing
killed
when
defendant
applies to a
com-
officer
escorted defen
the circumstance
murder
who had arrested and
restaurant).
Wendy’s
escape
on
status
dant from a
If
mitted
a defendant while
imprisonment. A defen-
language
encompass
construed
from a sentence of
departed
occurring
premises
pris
unlawfully
murder
has
from con-
dant who
on,
custody
temporarily
or
re-
duplicate
will
the first
finement
construction
liberty
“escape
until
prong thereby rendering
prong
gained
the third
su
is on
status”
Court, however,
custody.
perfluous.
generally
This
con
returned to lawful
must
See
Davis,
part
People
strue a statute so that
be
43 N.Y.2d
400 N.Y.S.2d
will
(“es-
(N.Y.1977)
735, 741,
inoperative, superfluous,
insignificant.
In (i)(8).
interpretation of I would hold that
(i)(8) applicable prisoner is when commits departure
murder unauthorized
from lawful confinement.
BIRCH, Justice, concurring and
dissenting. LINDSEY, Plaintiff-Appellee, Carol Ann
I concur conclusion reached respect majority except in this case issue, proportionality. the issue of On Henry LINDSEY, majority punishment holds William Defendant-Appellant. disproportionate under
death the rec- dissent, I respectfully in this ease. I ord Tennessee, Appeals of Court of for the same outlined do so reasons Section, at Nashville. Western Blanton, (Tenn. 1998) (Birch, J., dissenting). Aug. Blanton, no direct evidence was ad Appeal Application for Permission to that Blanton either victim or duced shot by Supreme Denied analysis Mrs. The same stabbed Vester. 8, 1998. June evidence that applies here —there is direct either victim or Hall or shot Thus, considering Mrs. Vester.1
stabbed of “the involvement or defendant[s’]
factor murder[s],” of direct
role in the the absence that either actual
evidence defendant punish compels my conclusion
killer *51 Quintero, Blanton, charges against all from the same incident. Hall arose 1. The