*1 of first de- Defendants are often convicted during killing. The defendant was enee prose- in especially a trial which the felony gree convicted of murder murder after reason, cution, aggravated robbery. The State did not seek not seek the did whatever penalty. pool by the death the ma- penally. death The defined However, jority such cases. would exclude the third State v. Torrance John- penalty in is not cases the death son, Shelby County [NO Criminal Court proportionality sought equally are relevant NUMBER ON RULE 12 RE- CASE sought. penalty death is as cases in which the PORT](Sentence 11, 1997), the imposed Jan. degree all murder convictions Without first in the 44-year-old victim was shot chest and be, my pool, it would included ATM. throat while she was at an propor- opinion, quite to conduct the difficult only aggravating found as the circumstance tionality required by Tenn.Code review as prior convictions. Thus, 39-13-206(e)(l)(Supp.l996). Ann. However, report Rule indicates pool that the of similar my because of view mitigating signifi- that the circumstance of no majority is too cases described prior history cant criminal raised narrow, part respectfully I dissent from that no evidence evidence. There was majority opinion. drugs defendant was the influence of under or alcohol at the offense. There the time of agree majority I evidence with the that the no was no There is data con- co-defendant. support jury’s finding is sufficient to cerning Apparently, the defendant. the re- Further, premeditation agree I and torture. port up was mixed another one because support is sufficient to evidence per- the defendant data refers to different jury’s aggravating circum- finding that report son. It is unclear from the Rule 12 outweigh mitigating circum- stances pre- whether the defendant was convicted of However, Reid, I stances. like Justice would felony meditated murder. The State disproportionate find the sentence death sought the penalty, death but im- this case. posed possibili- a sentence of life without the ty parole.
I would find that ease this does not show that the sentence of is death disproportionate penalty imposed cases, considering in similar the nature of the crime and the I defendant. would therefore remand the ease to the trial court for the
imposition imprisonment of a sentence of life Tennessee, Appellee, STATE of imprisonment parole. or life without BIRCH, Justice, concurring and Leroy HALL, Jr., Appellant. dissenting. Tennessee, Supreme Court concur, in principle, I with Justice Reid’s at Knoxville. however, would, pool I increase dissent. of similar cases include all which a cases 15, 1997. Dec. judge’s report required Supreme majority 12.1
Court Rule chose to ex- pool review proportionality clude from all cases which the did not seek the penalty capi- death all cases in which no sentencing hearing my held. tal view, discourages more exclusion
meaningful proportionality analysis. murder, report regardless interpret require the State
1. I all whether Rule 12 to penalty. in which first seeks the death cases convicted of
682 *3 Nashville, (Appeal Only), Brock Mehler (Trial William R. Appeal), Heck Karla G. (Trial Only), Gothard Chattanooga, Ap- for pellant. Walkup, Attorney
John Knox General and Reporter, Moore, Michael E. Solicitor Gener- al, Amy Attorney Tarkington, L. Assistant General, Nashville, Cox, III, H. William Dis- General, Evans, Attorney trict Thomas J. General, Attorney Assistant District Chatta- nooga, Appellee.
OPINION
DROWOTA, Judge. capital defendant,
In this LeRoy Hall, Jr., premeditated convicted first degree aggravated murder and arson.1 In hearing, the sentencing found two (1) aggravating circumstances: “[t]he mur- heinous, especially der was atrocious or cruel in that it physical involved torture serious beyond necessary abuse to produce death;” (2) murder was “[t]he committed engaged while the commit- ting commit, attempting or was. arson.” (7) 39-13-204(i)(5) Tenn.Code Ann. (1991). Finding aggravating the two outweighed circumstances mitigating circum- doubt, beyond stances a reasonable sentenced the defendant to death electro- cution. appeal
On direct Court of Criminal Appeals, challenged the defendant both his sentence, raising conviction and thirteen eiTor, claims of some with numerous sub- parts. fully considering After the defen- claims, dant’s Appeals of Criminal Court judgment. affirmed the trial court’s There- after, pursuant to Tenn.Code Ann. 39-13- 206(a)(1) (1996 Supp.),2 the case was docket- ined this Court.
The defendant raised numerous issues in Court, carefully this examining but after Although appeal, an Appeals. raised as issue in this court to the Court of Criminal twenty-five judge imposed year the trial sen- affirmance and the of the conviction sentence of arson, aggravated tence on the conviction for automatically death shall be reviewed penalty. consecutive to the death Upon Supreme Tennessee Court. the affirmance Appeals, the Court of Criminal the clerk shall penally imposed 2. “Whenever the death for Supreme docket the case in the Court and the degree judgment first when the murder and has proceed case shall in accordance with the Ten- court, become final in the trial Appellate nessee Rules of Procedure.” appeal right shall have the of direct from the trial law, to see the victim’s including barking thor- looked outside record and the entire Pulsar, car, burning. Ap- Nissan ough opinion of Criminal a two-door Court running peals uncle saw the defendant and the briefs of defendant and victim’s gun- Court, 27, 1997, car and fired a State, away burning en- from the August, Order, department was limiting argu- into the air. The fire review oral shot tered investigate fire and setting extinguish four the cause for ment to issues called September, called the term of this Court the arson. When the defendant thereafter, 12.3 uncle Knoxville. See Tenn. S.Ct. R. Mathis house victim’s threatened Hall the event did leave record, reviewing After we have deter- responded: victim The defendant alone. alleged require of the errors mined none her, nobody [sic] “If I have can’t.” can’t Moreover, supports reversal. evidence 16, 1991, as to jury’s findings shortly April night On circumstances, mitigating sentence sit- Wylene Price was midnight, Viola before arbitrary or disproportionate is not death her when she ting in her car outside home cases, imposed in similar consid- sentence “a ball of fire” the middle saw ering the of the crime and the car, nature defen- get of her As she started to out street. Accordingly, judgment car, dant. being similar later identified black Appeals upholding Court of Criminal the de- defendant’s, sped away from the scene. murder fendant’s conviction first passed, Price ran into her After car *5 and sentence of death electrocution is son, Billy Ray house and called 911. Her affirmed. Wilson, inside and when he heard his was assistance, emergency he ran mother call for
FACTUAL BACKGROUND happening. When outside see what was burning saw ear and heard someone presented guilt phase The evidence at the help, screaming it Wilson ran to inside for of the trial mid- demonstrated that around Though of car. the door 16, 1991, the driver’s side night April on threw open, anyone through he could not see victim, was gasoline Crozier, on the Traci his ex- pas- ran around to the the flames. Wilson girlfriend, as lying she was in the front seat senger the car where he saw the side of of her car. victim The received third through attempting get out victim percent ninety burns to more than of her pulled from window. the victim Wilson body and died several hours later in the car, clothes, burning removed her shoes and questioned by police, hospital. When extinguish on her helped her the flames initially denied involvement in the body, and to a safe distance assisted her however, Eventually, offense. Hall admitted burning in the of an from car event responsibility, that he but claimed did explosion. victim; Mil intend to to burn he intended
her car. calling Price returned the scene after emergency Though the vic-
The victim met defendant December for assistance. They began badly of that her hair living together 1984. in Janu- tim had been so burned 1986, ary hanging skin from her continuously togeth- was melted and was resided until, arms, prior er her she alert. The three weeks murder. remained coherent and 26,1991, appear- expressed about her On March victim left and moved victim concern permanent grandmother, house her likelihood of scar- into the Gloria ance Mathis, uncle, gave Price ring After from the burns. She her and her Chris Mathis. separation, telephone fre- number. Price the defendant would name When night, identity late for the quently, and often at call asked victim responded, perpetrator, home in In the the victim “Lee Mathis search of the victim. 6, 1991, that Hall early morning April hours of the Hall.” The victim also told Price car. dog previously had set fire her Mathis household was awakened twice assigned. provides errors Supreme and briefs and consider all Tennessee Court Rule pertinent part setting designating those follows: Court enter an order is- "Prior to argument.” argument, addressed at oral oral the Court shall review the record sues wishes victim Wilson pain, told that the defendant “threw alleviate her and the victim did not me, gas gas repeated,“it on bomb.” sleep periods She long was for or lose con- time gas, gas just bomb. He set on fire.” me sciousness until before her death. The victim, Merriman, according to Dr. sustained Atchley, Earl Commander the Chatta- an unsurvivable bum from which there was nooga Department, Fire received the 911 call recovery. never chance April on 12:06 a.m. 1991. When he Forester, arrived at scene victim’s investigator car was Ed Ar- with the “folly involved” fire and the victim son was Division the Chattanooga Police De- badly Though burned. Atchley partment, Commander examined the victim’s car after recognize her, did not the victim April April remem- both the 6 and 16 fires. His person bered him as the investigat- who had investigation April 6 fire revealed that burning April ed the on her car 1991.4 an poured accelerant had been around the Atchley The victim told edges Commander exterior of the car which melted the person responsible same was for bumpers. yellow plastic both inci- fenders jug A Atchley dents. Commander positive gaso- recovered found the scene tested for plastic melted container next the driver’s line. Forester obtained an arrest warrant car, tupperware lid, based, side of the victim’s part, melted, badly which was not as near the ear. statements of the victim’s uncle. Erlanger Hospital The victim was taken to Forester testified the vehicle burned Sonya April where Dr. she treated Merri- same automobile involved man, plastic surgeon specialist. bum April the fire on 1991. The most condition, Describing the damage victim’s Dr. Merri- resulting extensive from the fire on stated, man percent, April “She had a 95 what we was to driver’s side the car. body burn, call a per- discolored; total surface area The metal was roof sagged; burned, body cent springs of her and all but and the seat were weakened. The percent about glass two three that was passenger third on the fire side was *6 stained; however, bums.” The victim’s teeth were carbon glass found on the charred, and the hair markings. was burned off her driver’s side had no such The body. upon consistency Based the and uni- lack of staining fire or carbon indicated that formity of the bums glass over the victim’s entire on been the driver’s side had bro- feet, body, except the soles of her Dr. ken A Merri- out before fire was melt- started. opined body plastic man open the victim’s ed had been container was found near the gasoline, splattered than doused with rather driver’s door of the victim’s The vehicle. splashed. socks, shoes, Although clothing Dr. Merriman had victim’s and remains nearly eases, burn positive treated one hundred she were and recovered later tested had seen a presence gasoline. keys never worse or more uniform the Car were pattern burning thirty on an away individual. found some feet from victim’s car.
The victim was with treated intravenous body designed Donnelly, fluids incisions in investigator and her to Mike with arson Nonetheless, expansion. allow tissue the vic- the State of Tennessee Fire Marshall’s Of- fice, tim’s tongue condition deteriorated. Her also car. examined the victim’s He mouth, protruded swelled until it from her separate found evidence o:fthree fires to the and her eyelids upon damage, became inverted from the car. Don- Based the extent of swelling. Despite gravity nelly opined April and extent of fire had been however, injuries, her Dr. testified started on the driver’s side of the vehicle. Merriman the car that the victim remained conscious. She was Based his examination of and victim, pain. According photographs constant to Dr. Mer- his review of of the Don- riman, nelly gasoline poured the medication administered to the been testified had strong directly victim enough would have been to onto the victim. 6, 1991, fires, counts, April
4. to the fire and addition but the trial severed these April victim’s car was burned on they were later dismissed. was indicted defendant for arson related to these paper from a Testifying during guilt lighter. Hall removed towels for the defense gas pumps, placed them dispenser near phase were Forester and Morris jug, put contain- opening in the tea Jeffery Scott Forester and Green Green. car, in his returned to the area near er and in the drinking had with the defendant been grandmother’s house. the victim’s evening April 16, trio early 1991. The about two and one-half eases consumed neigh- preparing Hall to leave the As to beer and were intoxicated. Forester went borhood, encountered the victim she he p.m. bed around 10:30 and did see Hall, According up car. he in her to drove seeing thereafter. Green recalled defendant the victim’s car on left his car and entered p.m. the defendant between 10:30 11:00 to Hall her to the driver’s side talk. asked he was intoxi- Because knew the defendant back in him and told her he move drive, Green tried to cated unable her. asked the was drunk and needed He persuade spend night defendant pregnant if and told her that victim she was however, Eventually, Forester’s home. she could not have another abortion. Final- left, neither nor Forest- Green questioned why had ly, Hall he been blamed him again er until after the murder. saw argu- An burnings for the earlier of her car. The victim the defen- ment ensued. called The defendant also testified his own S.O.B.,” told him to turn “crazy dant a According testimony, to his behalf. he himself into the authorities. January began living together victim eighteen got when he was and she was At that Hall out of her car and point, years though sixteen old. Even the victim told the victim to do likewise because he was 1991, they going out to burn it. When the victim tried to moved March continued door, car, Hall separation. one lock the reached inside the see another after the grabbed keys, them towards his upset by separa- said he was threw car, result, get tion, and ordered victim out of her drinking as a grabbed car. Hall ran his car then smoking day crack cocaine. On jug ignited paper murder, gasoline. He Hall directly and Green went jug towels and threw the into the driver’s began drinking Forester’s house and beer. car. The side victim’s defendant knew point, At one Hall left ham- and obtained a lying crying the victim was in the front seat pawn shop. mer at a attempting After into the gas when threw bomb car. success, times, call the victim several without Hall returned to Forester’s home about 6:30 defendant, According to the after he threw p.m. p.m. drinking. or 7:00 and continued jug, gasoline running the victim came *7 car, him, burning out of the toward approximately Hall consumed one case fire. caught him on The defendant extin- beer, home, then left Forester’s taking with just guished flame on himself and then the him purchas- five more After cans beer. victim, according looked the who the beer, ing another six cans of Hall drove defendant, passenger’s ran to the side the he mobile home had shared with the car, ground. on and rolled Unsure of destroyed possessions victim and her some of on believing what to do and that the fire angry because he was with her for not com- extinguished, almost the defen- victim was ing home. Hall left the trailer after a short away Although from the dant drove scene. two-quart jug time and took with him a tea he claimed to have returned two or three which he to use to burn the victim’s intended victim, later, minutes he did not see the ear, car. Searching for victim and her again shadowy figure he fled when a black by place, grand- Hall her her drove work him. ran toward bars, house, mother’s and several but he did cross-examination, by her. Hall find was threatened On defendant de- victim, pouring gasoline victim’s uncle a man he did onto the claim- and second whom nied splattered her when he ing know when he drove victim’s on threw Thereafter, grandmother’s jug house. Hall the car. He also break- into denied window, station, jug ing glass a on the insist- stopped at service filled the tea driver’s purchased open. proclaimed gasoline, cigarette ing with that the door was He only he loved victim eighty-seven, and intended to was that his age mental burn her car. The defendant admitted that years, was thirteen eleven months. The de- initially ques- denied offense when skills, fendant’s basic as measured a Wide by police. tioned He also claimed to the test, Range Achievement a grade showed police that he never meant to hurt the victim general to 9 level 6 education in the areas of gas protection and had the bomb for from reading, spelling, A neurop- and arithmetic. uncle, the victim’s but he it at the threw sychological examination did not reveal laughed victim after she him. significant neurological evidence of trauma to Hall’s brain. A personality sixteen-factor above, proof Based summarized introverted, test revealed that Hall is emo- guilty found the defendant of first unstable, tionally influenced, easily and has degree premeditated murder aggravated According low self-esteem. Meyer, to Dr. arson.5 reflects test that the defendant has little The trial proceeded sentencing abiding self-control and is not rule or moral- phase on the degree conviction for first mur- Though psycho- istic. is not a defendant witness, der. presented only The State one path sociopath, Meyer opined Dr. investigated Detective Ed Forester who had problems controlling Hall has rage and an- and obtained warrants for Hall’s arrest for ger. burning victim’s car 1April According Forester, 1991.6 at the time A Rorschach “Ink Blot” test showed that murder, of the victim’s great defendant difficulty Hall has deal reacting suspect April aware that he was appropriately to stressful situations. Dr. and 6 incidents. Forester also testified that Meyer described Hall and the victim’s rela- given following victim had war,” statement tionship tug as an “emotional April in which fire she that Hall said that it great said would have created a deal previously had threatened to kill and to her person of tension and in a frustration with and, car, occasion, “total” prior her on one psychological makeup. actually had to force tried her off the road.7 some Though of the test results indicated “faking bad” or ma- sentencing defense at lingering, Meyer explained Dr. that such re- Meyer, included the of Dr. Roger patient sults not necessarily do mean that a psychologist, clinical who the de- evaluated faking, patient but can also that a reflect fendant after his arrest for this Dr. murder. simply overemphasizing the stress and emo- Meyer Hall interviewed for three hours and problems tional experiencing. he or she is reviewed the results tests administered to Meyer’s Hall one of Dr associates. Meyer diagnosed Dr. the defendant as suf- Meyer Dr. testified that a status fering personality mental from borderline disorder. Meyer examination revealed that the persons defendant was Dr. testified that with this not insane or A psychotic. Slosson Intelli- disorder have severe characteristically emo- gence IQ test indicated the defendant’s problems problems thinking tional charges: premeditated 5.The went to trial on three first murder. did *8 (1) unlawful, degree first an report murder intention- charge felony a not verdict on the al, (2) premeditated killing, and deliberate first murder. killing a murder reckless committed murder), during perpetration (felony of arson 4, supra. 6. See Footnote (3) aggravated guilty and arson. He entered pleas jury felony to before the arson and murder. during 7. This evidence was admitted the sentenc- accept guilty After the trial court refused to ing phase part prosecution’s attempt to pleas, persisted admitting guilt the defendant in establish the circumstance in Tenn. jury, contesting only to those crimes before the 39-13-204(i)(6), provides Code Ann. charge killing premeditated that pur- proof, ”[t]he that murder for the deliberated. At conclusion was committed of the with, pose avoiding, interfering preventing court instructed the that it could return or guilty felony pre- either prosecution verdict for murder arrest lawful defendant or murder, Acting however, meditated but not for in both. rejected jury, another.” The this fac- instructions, accordance with the found tor. guilty aggravated the defendant assault and thereafter, to Tennes- Hall returned Meyer shortly concluded judgment. Dr. see. post-trau- suffered from disorder, matic but admitted that stress Griffin, step-sis- Christie the defendant’s the circumstances of have resulted from ter, he very that Hall was sad when testified death. the victim’s odds, always but and the victim were prob- their they through work believed could cross-examination, Meyer Dr. testified On Griffin, Hall and the According lems. mentally that the defendant is not retarded. times together several victim had out He that his conclusions about also conceded prior in separation weeks following their based, the defendant’s mental condition were murder. stated on cross-ex- Griffin part, upon typographical error least amination that she observed the defendant IQ indicating that the defendant’s was seven- his hiding his shirt when he returned to (87). (78), ty-eight eighty-seven than rather night home on the of the victim’s mother’s Despite in- his reliance this erroneous fact, police told murder. Griffin had formation, Dr. his Meyer did revise con- the shirt had been hidden. where clusions about the defendant. He restated Hall, brother, David said The defendant’s diagnosis his the defendant exhibited argued the defendant and the victim signs per- often associated with borderline week, once a and the victim would address post-traumatic sonality disorder and stress vulgar in abusive and lan- disorder and said that defendant was brother, to his the defen- guage. According under emotional when he extreme distress abusing during dant crack cocaine committed the murder this case. murder, period time had been for admitted, however, Meyer Dr. he did prior support To sometime to the murder. with discuss facts murder habit, drug money Hall would borrow defendant, only but considered the events pawn property. killing which occurred before and after the mother, Griffin, tes- The defendant’s Sarah making diagnosis. Meyer his Dr. also did family tified that her had moved several diagnosis receiving not reconsider after his young. times when Hall was When Hall’s investigator’s report which chronicled Alabama, only family moved he was four- since Dr. defendant’s behavior childhood. old, years teen in the but remained Chat- Meyer admitted that behavior described area, residing family tanooga another report support diagnosis in the would years family for his own returned. three until personality antisocial disorder. The behavior mother, According to Hall’s the victim and burning his included the defendant’s own began having problems years her two son boy- setting bed fire to mother’s his separat- couple before the murder. 1973, setting friend’s car seat in fire to a ed on several occasions. She and reconciled 1975, driving wooded area under influ- that in the defen- recalled December intoxicant, sneaking fighting, up ence of an Oklahoma, planned dant where he moved knife, his boyfriend mother’s with a employment help drug find truancy. problem, early January but returned During 1991 reconcile with the victim. Meyer’s testimony, addition Dr. murder, separation tes- preceding Griffin presented proof defense also about rela- very Hall upset tified that would tionship between Hall and the victim and Al- cry often and drink alcohol excess. drugs about the defendant’s abuse of victim and the though the defendant were example, alcohol. For testified that Green they separated, together had been out sever- “rocky” the victim and the defendant had al times in the before the murder. weeks relationship and that the defendant abused *9 Griffin, Hall a According to was “basket alcohol, marijuana, and crack cocaine. The case” unable to see the victim. when was cousin Hall came to defendant’s testified that Finally, live him in in December of defense introduced medical Oklahoma seeking recovery and insurance forms to establish that employment 1990 from records abuse, in undergone abortions drug telephoned, but victim the victim two 688
1985
one
prosecu-
abortion in 1990. The
testimony
being
offered to
intent.
negate
tion,
rebuttal, presented
testimony
of a
The State
asserts that the substance of
of the victim
friend
who
that Hall
related
was Dr. Meyer’s testimony was not relevant to
of one of
aware
the abortions in 1985 and had
capacity
show that
defendant lacked the
encouraged
proce-
the victim undergo
requisite
pre-
to form the
intent to commit
dure.
degree
first
meditated
murder.
proof,
Based
determined
resolving
In
this issue we
revisit a
must
proven
that the State had
the existence of
principle recently
endorsed
this Court
beyond
two
a
circumstances
Abrams,
(Tenn.1996).
State v.
widely accepted in other countries before EXPERT TESTIMONY gained jurisdictions. acceptance American application, capaci Id. In modem diminished Court, In this the defendant first contends ty justification is not excuse considered that he is entitled to a new because crime, prove but attempt for rather an trial, during guilt phase of the the trial defendant, incapable requisite that the expert proof court refused to admit the re- charged, intent crime is innocent garding mental state at time the likely guilty but most a lesser crime offense committed. The as- Cameron, included offense. United States v. Roger Meyer serts that the of Dr. (11th 1051, 1067 Cir.1990). Thus, 907 F.2d intent, negate was relevant an essential claiming con capacity diminished premeditated degree element first mur- templates der,8 responsibility, only full but the offense for which the defendant was Padilla, actually crime committed. State v. convicted. Exclusion of the relevant evi- (N.M.1959). error, words, prejudicial dence constitutes P.2d 312 other de- argues, capacity” actually him to a “diminished a defen fendant entitles new responds presentation expert, psychiatric trial. that the trial court dant’s evi properly Meyer’s testimony culpa excluded Dr. at negating requisite dence aimed understood, guilt phase prof- “Properly because the defendant’s ble mental it is state. fer failed to inform ... rule merely the trial court not a at all but defense committed, degree time 8. At the this offense was Tenn. and first murder is now as "the defined 39-13-202(a)(l) (1991) provided Ann. premeditated Code killing another.” (1991 intentional "intentional, premeditated and deliber- 39-13-202(a)(l) Ann. & Tenn.Code killing ate of another” first constitutes Supp.1996). murder. The definition was amended *10 or to Pohlot, the evidence understand er of fact to 827 F.2d United States evidenee.” issue, quali- (3rd Cir.1987). fact in witness determine a 889, 897 skill, knowledge, expe- expert by fled as an of “dimin- description proper It was that in may testify rience, training, or education adopted by the capacity” that was ished opinion or otherwise. the an form of Phipps. In- Appeals in of Criminal Court deed, recognizing that diminished ca- while rule, expert evidentiary Under this defense under pacity is not an enumerated to form incapacity the defendant’s regarding of the criminal code. See the 1989 revision “substantially must the mental state required (1991 §§ Ann. 39-11-501—621 Tenn.Code of to understand trier fact assist the of Criminal Repl. Supp.1996), & Court a fact in issue.” or to determine evidence Appeals Phipps that a defen- concluded (Tenn. Shuck, 953 See State v. requisite capacity to form the mental dant’s 1997). upon which Though the facts or data commit an offense is an issue state to be testimony is based need not expert prosecutions general because criminal evidence, made they must be admissible provides “[n]o law in Tennessee criminal hearing expert at or before known to the convicted of an offense unless person be reasonably type relied be of a must required mental is culpable ... state [t]he particular field. Rule by experts in the doubt,” beyond a Tenn. proven reasonable law, fact, In under Tennessee Tenn. R. Evid. 39-ll-201(a)(2) (1991 Repl.). Ann. Code testimony in the court shall disallow “[t]he conclusion, agree with that addi- We if under opinion form of an or inference negation an tion observe that the of element of lack trustwor lying facts or data indicate recognized is as a de- of a criminal offense R. Tenn. Evid. Of thiness.” Rule Ann. fense Tennessee. Tenn.Code 39- course, evidentiary ques most other as with ll-203(e)(2) (1991 (“A Repl Supp.1996) & tions, expert opinion tes admissibility of (1) defense, negat- of ground other than one timony largely a matter which rests within is ”) ing (empha- an ... element offense State of the trial court. sound discretion added). sis (Tenn.1993). Ballard, 557, 562 law, is Under Tennessee evidence Therefore, admissibility, gain ex if it “make deemed relevant tends to inca pert testimony regarding a defendant’s consequence existence fact is of required mental state pacity to form to the determination the action more relevancy satisfy general standards must probable probable or less than would be specifi evidentiary rules which as well as the R. Evid. 401 without evidence.” Tenn. Assuming expert testimony. cally govern Moreover, generally is ad relevant evidence satisfied, psychiatric that those standards are Tennessee, probative its missible unless capaci lacks the evidence that substantially prej its outweighed value is defect, or ty, of mental disease because R. 402 and udicial effect. Tenn. Evid. requisite culpable form mental state general requires criminal Since law charged is admissible un the offense commit proven beyond state mental law. As the intermediate der Tennessee doubt, certainly it is a reasonable “fact recognized consequence” of a criminal outcome deprive a crim- find otherwise would [t]o Therefore, prosecution. evidence right inal to defend prove disprove required men tends against essential elements one generally admissible tal state relevant effect, then, such a every case. criminal under Tennessee law. deprive finding would general relevance addition challenge aspect prose- means rules, testimony in expert gov Tennessee and remove burden cution’s case R. Evid. which erned Rule Tenn. that element contravention provides: statutory law. While constitutional and pre- sanity it technical, presumes does scientific, specialized law If other process requires mens rea. Due knowledge substantially assist the tri- sume will *11 government prove every mind, that the given element his personality state of make- beyond of an offense up, posing reasonable doubt. presented that have facts been here in court about the incident and it how Phipps, 883 S.W.2d 149. To avoid confu- occurred, expert opinion what his would be sion, however, caution we that such evidence about he react how would under those proffered should not be as of “diminish- circumstances. capacity.” Instead, ed such evidence should presented to the trial as relevant to I [THE COURT]: don’t understand—of negate culpable existence mental course, important state is it mind if required state establish to the criminal of- goes goes negating to it to defense. If for being fense which the defendant is tried.9 key elements in the case— As did the Court of Appeals Criminal Intent, [DEFENSE Your COUNSEL]: case, emphasize psychiat this we Honor. testimony ric must demonstrate that the de just general [THE But state of COURT]: inability requisite fendant’s to form the cul mind, are, feelings what his what his atti- pable mental product state was the of a general, tude victim in I was toward the defect, just particular mental disease or particular don’t see how that state mind emotional state or mental It is condition. contributes I toward a defense. assume at showing of a of capacity lack to form the time, up this based on what I’ve heard requisite culpable mental intent that is cen intoxication, point, this his is defense tral evaluating admissibility expert requisite not form could intent to psychiatric testimony on the issue. State v. premeditate and deliberate and commit an Shelton, (Tenn.Crim. intentional murder. Is correct? (Tenn.1993). perm. app. App.1992), denied Applying principles the above stated Well, [DEFENSE COUNSEL]: it’s not facts this we conclude the trial intoxication, only but with reference to it’s court did not in excluding testimony err also with reference to emotional distress Meyer. Dr. produced stress the rela- tionship parties. between the
After the State rested its case-in-chief trial, guilt phase in the defense counsel added.) (Émphasis requested the trial court to on rule whether discussions, After further the trial court Meyer’s testimony or not Dr. could be admit ruled as follows: inquired ted. The trial court about the na testimony purpose ture and the for Anything going towards state mind that being it which The following offered. or would create a an excuse defense discussion ensued. killing, just this will the Court allow. But Talking general [DEFENSE COUNSEL]: about state of mind of the defendant type deceased, of individual that—what his test- about attitudes toward the I ing revealed about don’t think it’s relevant at this time. I case, and take him the going then situation don’t think it’s admissible. I’m not proof— going drugs where—I mean there’s to be about allow already proof put people just there’s on about whatever between the two consumption, alcohol generally and what that con- show what the defendant was sumption—what consumption thinking, goes effect that unless it specifically toward And, type you would have him with his defense. as I understand what said, personality, in addition exploring not. does 4.02(1) (Official holding closely 9. Our resembles American Model Penal Code Draft A.L.I. 1962). Law Institute’s Penal Code explains: Model which does not The Comment to that Section capacity,” mention term "diminished but pre- of mind as ”[i]f states such deliberation provides that "[e]vidence nevertheless legal significance, psy- meditation are accorded defendant suffered from a mental disease or de- chiatric should be admissible when rel- evidence shall be fect admissible whenever it relevant to prove disprove evant to their existence prove that the did or not have did ¡my same other relevant evidence.” extent of mind state an element of the offense.” Instead, Meyer general Also, Dr. testified of Tennessee law the State personality type and capacity in recognize ly about the defendant’s diminished does *12 I as only relevancy see And the he from tests gleaned this state. which character traits testimony be would far as the doctor’s At single three interview. a hour results and insanity in this as defense going toward testimony Meyer Dr. state point no in his did capacity. as to diminished case and not to capacity the the lacked that Now, of intoxi- as far as defense killing be premeditate deliberate cation, testimony if is from there credible Though of mental disease or defect. cause to give opinion he as doctor and can an phase Meyer that penalty testified at Dr. of of of the state intoxication the extent have border the defendant to he believed Hall of commission of the Mr. time peo that personality disorder and such line offense, relevant, that would be but then episodes during ple rage of could have brief general to- just general stress or attitude illness,” he “temporary of mental did states life be a in this would not defense ward experienc not state that the defendant Any testimony going toward the case. episode committed the ing such when he an intoxication, I allow.... will defense of fact, trial. which he was on murder for added.) (Emphasis Meyer Dr. such a statement it made Following ruling, this the defense suspect he since acknowl would have present Meyer’s attempt not to Dr. testi did facts of edged that he discussed the never proof, as of did the de mony an offer nor evi with the defendant.12 While the murder make fense further statement about defendant, of particular that a because dence testimony.10 It is purpose nature and of the defect, capacity lacks the a mental disease or ruling from this that the trial court clear did requisite form intent is admissible to Meyer testifying, not bar Dr. but actu from Tennessee, testimony expert opinion about testimony ally stated that would allow personality typical reactions of certain probative negate either to or to estab intent capacity types is relevant to the not fact, the trial court rec lish intoxication. Bal Compare particular defendant trial. ognized, appellate of without the benefit lard, testimony (expert S.W.2d at 561 855 decisions, expert testimony rele court sexually typical behavior of a describing negating is in Ten vant to intent admissible substantially not assist a abused child does though capacity even is nessee diminished specific inquiry of an whether Moreover, trial court not defense.11 place). charged actually crime has taken correctly legal applied principle to Moreover, personality type is not proof of testimony description in this case. From capacity to form relevant to a defendant’s expert testimony of offered the de Tipton Judge intent. As correct the mental fense, testimony as as a well review the ly in the decision of Court stated Meyer penalty phase, it clear Dr. is Appeals in this ease: Criminal testimony Meyer’s that Dr. not relevant myriad Society comprised individu- is capaci lacked show tempera- personalities and ty als with diverse requisite to form the intent because severally jointly are bound or ments who mental disease defect intoxication. upon why the substance of defense can review the issue based 10.It is not clear from record hearing. testimony sentencing offer of Meyer’s chose not make testimonial at the counsel Dr. sought during proof. to do so Whenever counsel trial, appropriately granted trial court this this did not have the 11. The trial court in case request. repeatedly We stressed the have Abrams, Shelton, Phipps, when this benefit of only proof. importance does it of an offer of Not ruling was made. review, meaningful appellate ensure effective necessary provides the pertinent admissibility, note Though we ruling evidentiary is made. information before greatly Meyer’s weakened that Dr. Indeed, generally, offer is not if an par- were that his conclusions his admission made, appellate is waived and issue deemed incomplete tially in- Coker, inaccurate and based precluded. 746 S.W.2d State review fact, refusal, formation, Goad, despite 1987); (Tenn. and his (Tenn. 1986). However, we revise his conclusions. by society’s duplicate common codes conduct and elements the under responsibility. The fact one lying death-eligible Contrary mere offense. to the apt, by personality type, more assertion, to become Middlebrooks did not response particular emotional in to a stim- principle embrace the broad count double provide ulus does not a means ing, been adopted has the Florida person to be absolved from the same re- courts,13 precludes and which use sponsibility which the law holds another same evidence establish than more one might apt respond pas- who less aggravating circumstance. See State v. sionately did, stimulus. If it same (Tenn.1997) (hold Bush, *13 each person then would be the unto law ing prevent that of to use murder arrest upon him or solely based her herself his or aggravating was appropriate circumstance particular personality makeup. duplicate statutory because it did not the expert Though testimony is offense); admissible underlying elements of the State v. that show because of a mental (Tenn. disease or Stephenson, 530, 878 S.W.2d 556-57 defect, a capacity 1994) defendant the lacked (holding that of use the murder for form the state required mental to constitute renumeration aggravating circumstance was tried, the offense for which he or is being she appropriate not duplicate because did the the in this case that did meet statutory underlying elements of the of standard. appropriately The trial court ex- fense). event, In we that observe the the cluded evidence. jury’s finding of the circum aggravating two (1) stances, especially murder was hei “[t]be AGGRAVATING CIRCUMSTANCES nous, in atrocious cruel that it involved challenges validity The defendant next the physical beyond torture or serious abuse that aggravating by of the circumstances found (2) death;” necessary produce “[t]he First, jury. argues the he that unconstitu- murder was the committed while defendant counting tional double exists this case engaged committing attempt separate aggravating because the circum- commit, arson,” ing Tenn.Code Ann. 39- proven by underlying stances were the same 13—204(i)(5) (7) (1991), were not based facts, the of burning the victim’s Sec- car. upon jury’s the same The finding evidence. ondly, he jury’s asserts that finding (i)(5) upon circumstance was based perpetration the murder occurred in of torturous means which the defendant felony pre- is inconsistent with its verdict of victim, to kill suffering chose and the she murder, degree meditated first urges and he prior to jury’s endured her death. find that there was anot sufficient nexus between (i)(7) of ing upon circumstance was based felony and the homicide. the defendant’s commission the murder during perpetration separate felony, Middlebrooks, In State v. 840 (Drowota car arson. the destruction the victim’s 317, (Tenn.1992) 346 O’Brien, JJ., dissenting), majority of this As to this defendant’s Court concluded that when contention finding felony first-degree solely aggravating “convicted of on the murder murder felony murder, aggravating basis circumstance is inconsistent with verdict its murder, premeditated circumstance set out in Tenn.Code Ann. we disagree. As 39-2-203(i)(7) (1982) 39-13-204(0(7) §§ previously explained, a ma Middlebrooks (1991) jority does not narrow class of that application death- this Court held eligible sufficiently felony aggravating murderers under murder circumstance Eighth if inappropriate only Amendment the United States defendant is con Constitution, I, § and Article 16 of the Ten solely felony victed on the basis of murder. duplicates nessee Implicit recognition Constitution because it in that is the statement properly may ap elements decision circumstance offense.” plied premedi if Middlebrooks was based the narrow a defendant is convicted of fact, principle degree recog- first an circumstance tated murder. we State, (Fla. 1976). e.g. v. So.2d See Provence in his Hurley, ultimately culminated decision 70 car State 876 S.W.2d nized felony is suffi- (Tenn.1993), premeditated Accordingly, her. the evidence kill jury’s finding that simply support means murder are alternative cient com- degree in this case was of first murder murder premeditated offense engaged mur- While a defendant who be committed. mitted while may only be convicted of one committing ders one victim arson. murder, degree of first the circum- offense that there is The defendant’s claim particular may support a of a case stances the arson and insufficient nexus between degree first
jury finding that the offense is without merit. the murder premedita- was committed both with murder (Tenn.1991), Terry, the de perpetrating during the course of tion fendant, pastor, embezzled substan a church Ann. felony. Tenn.Code 40-18- another money congregation from his tial sums of (1990 Indeed, Repl.).14 that was taking period began of time. He over Hurley situation where we affirmed money In June of in March of premeditated first conviction of handyman, placed body killed the church and his death sentence based murder building, church and torched the *14 inside the felony aggravating upon the murder circum- building. sentencing hearing, the At the stance. felony aggravating the murder jury found ease, the In this defendant admitted underlying the circumstance on the basis of car, at he to burn the victim’s while intended larceny. judge granted the defen The trial intentionally, denying same that he the time trial, finding for new dant’s motion deliberation, premeditation with and killed prove murder failed to the State had jury the victim. The convicted the defendant en committed the defendant was was while aggravated premeditated arson and both perpetration larceny. This gaged in the murder, disbelieving obviously first judge the trial that there agreed with Court intend kill his assertions that he did not to the mur nexus between was insufficient the murder the victim. The fact that victim’s In we stat larceny. holding, and the so der accomplished by pouring gasoline onto was felony ag the murder application ed that body gasoline her at the same time as depends the gravating circumstance accomplish underly- applied to the car to the temporal, spatial and motivational relation felony applicability ing does vitiate the capital murder and the ships between fact, appli- aggravating circumstance. felony. Id. at 423. collateral felony aggravating cation of the murder cir- to circum- Applying those factors particularly appropriate in this cumstance is ease, defen- it is clear that the stances of relentlessly searched case. Here, merit. argument dant’s is without intending for to burn it. the victim’s car felony occurred capital murder and collateral object of his search with When found place. in time and the same same inside, victim defendant achieved his killing for the victim defendant’s motivation purpose, car. original arson the victim’s burning car like- in this her were case warning his When victim would heed same, her to anger over decision wise the car, to to be leave the the defendant refused relationship. their discontinue original purpose then deterred from that the evidence is sufficient proceeded, premeditation and delibera- We conclude with aggrava- tion, gaso- support jury’s findings to by pouring to the victim to murder body igniting ting We also conclude directly onto circumstances. line her were constitu- aggravating circumstances The defendant’s relentless deter- accelerant. tionally applied in this case. the arson of the victim’s mination to commit modes, in, intents, (1) which, (1) byor one of the or 14. "Where the intent with the mode done, convict, which, by are charged, an act is essential it shall the means either the means offense, and of- the commission of the such although of the intents uncertain as which intents, may mode, with different existed, fense be committed by charged or which of or which means, modes, jury byor different if the different charged, such act committed.” the means with one satisfied that the act committed NONSTATUTORY by MITIGATING cumstances jury. when considered Id.
CIRCUMSTANCES
interpreted
32. Finally,
we
“no
dis-
portion
preclude
tinction”
of the statute to
Assembly
the General
amended
judge
revealing
trial
from
capital sentencing
provide,
statute to
request
that a
for
nonstatutory
instruction on
respect
to nonstatutory mitigating cir-
made,
mitigating
cumstances,
has been
circumstances
as follows:
identity
revealing
party
from
mak-
arguments
closing
After
sentencing
ing
request.
Id.
recently,
More
hearing,
judge
the trial
shall include in the
(Tenn.1997),
Hodges,
circumstance law they deserve. The prove, beyond weight how much upon the state to a doubt, you can identify or limit mitigating circum- what reasonable does not Hall, Jr’s., Leroy concerning stance not exist. does consider character, physi- history, and background jury unanim- requirement is no There and circum- or nature cal condition any particular mitigating circum- ity as to mitigating. the crime that are stances of stance, you agree on the same or that for formula impose not The law does mitigating circumstance. weight mitigating determining much how to be Special Request No. Decision If. you is the Each of circumstance deserves. by Made Individual Jurors: circum- mitigating of whether judge sole Hall, Leroy prosecution Both the so, weight much if how exist and stances Jr., opinion to the individual are entitled they deserve. juror. you must consider the each Each purpose reaching for the evidence body about You as a deliberate you you if do must verdict can so. Each circumstances, you mitigating but are yourself, for but should do decide case required a unanimous verdict as to reach discussing only so after the evidence you weight. When their existence or jurors. Do not instructions with the other any aggravating circum- vote whether any particular way in a question decide proven a reason- beyond have stances jurors, majority simply because a or outweigh mitigating, each able doubt them, any favors such decision. one any yourself for whether you must decide by in this ease Do not decide issues and, so, if exist mitigating circumstances chance, drawing such of lots or as weight they much deserve. how any other chance determination. Mitigation- 58: Special Request No. Special Request Presumption 12: No. Definition: Regarding Aggravating Circumstances: phase
The defendant enters put Mitigating circumstances are factors presumption trial are with the there sen- appropriate forth to show aggravating no circumstances that would Mitigating cir- imprisonment. tence is life pre- warrant a sentence of death. This justification ex- or are cumstances sumption may only if be overcome offense, that, are factors for the but cuse beyond prosecution you convinces a rea- mercy, may or miti- fairness and extenuate sonable doubt that one or more of the culpability as far of moral gate the specified aggravating circumstances exists Mitigating punishment is concerned. as or and that circumstance law; are not limited circumstances mitigating outweigh any circumstances fac- number, long they may be unlimited as tors. intro- they the evidence are based Special Mitigation- Request No. 57: prosecution or the by either the duced Definition, Weight, Unanimity: sentencing. defense at punishment you on the When deliberate Special Request Mitigation- No. 59: Hall, Jr., Leroy imprisonment life Definition: electrocution, you must consider death justi- is not a mitigating A circumstance supported by any mitigating circumstance *18 A miti- for the offense. fication or excuse any presented party either at evidence is a fact about the gating circumstance sentencing guilt-innocence either the or Hall, Jr., offense, Leroy which or about both, mitigating A phase, or of the trial. fairness, compassion, mercy or sympathy, Hall, any aspect Leroy circumstance is of re- extenuating or be considered Jr’s., character, history, background or culpability, or ducing of moral physical the nature and cir- condition or than justifies a of less sentence which cumstances of the crime which fairness death, justify or ex- although it does not mercy, or calls for a sentence less than any offense. you If there are cuse the death. find Clearly, statutory Moreover, instructions on miti- during closing argu- cumstances. gating given jury circumstances sentencing phase, this ment directly relate, encompass case generally court allowed defense counsel broad latitude n to specific subject matter that is contained argue nonstatutory mitigating circum- special requests. within the defendant’s fact, For jury. to stances counsel made example, (j)(7),17 youth circumstance arguments regarding virtually detailed ev- the defendant at the time the crime di- ery point mitigation on which he rectly special requests twenty-one relates to sought to given have instructions twenty-two. (j)(2),18 Circumstance Therefore, jury.20 considering the instruc- (j)(8),19 circumstance to relate all of the re- given actually jury mitigating tions on quested Finally, general instructions. circumstances, conjunction with the broad given by broadly instructions the trial court appropriately latitude afforded defen- jury ability informed the of its unlimited present dant to ar- introduce evidence and types consider all defining of factors miti- gument nonstatutory mitigating about cir- gating circumstance as cumstances, we conclude that the trial Hall, Jr.’s, aspect Leroy character, charge court’s refusal to on non-
background history, physical statutory or condition mitigating circumstances does not or the nature and prejudicial circumstances of the constitute re- requiring error 52(a). mercy, crime which in or fairness calls for versal. See P. Tenn. R.Crim. a sentence less than death.... The law identify
does not or limit COMPARATIVE PROPORTIONALITY you what can Hall, concerning Leroy consider char- REVIEW Jr.’s acter, background history, physical The defendant next claims that his sen condition or the nature and circumstances disproportionate penalty tence is im mitigating. the crime [as] posed cases, considering in similar both Though statutory mitigating neither the nature the crime and the defendant. The charged, general asserting factors nor the instruction his sentence is mitigating specific comparatively circumstances were as disproportionate because special requests, “[c]urrently as defendant’s the in- there is no one under a death generally encompassed structions sub- sentence Tennessee who him- or herself jects special requests contained within girlfriend spouse.” murdered a or The State fairly conveyed ability responds only person its Hall is not the range proof mitigating consider a wide Tennessee under death sentence for the addition, killing spouse circumstances. the trial court of a or girlfriend. agree. We Johnson, (Tenn. permitted the defendant to introduce See sub- (Tenn. 1987); Miller, of nonstatutory mitigating stantial cir- State v. victim; youth age tionship "The 17. or advanced of the defendant with the Hall a mental defect; at the time of the crime.” intoxicated; disease Hall Hall unusually age; immature for his Hall lacked "The murder was committed while the defen- development; is a normal emotional Hall follow- dant was under the influence of extreme mental leader; Hall, early age, er and not a an exhib- or emotional disturbance.” signs ited of mental or emotional disturbance untreated; that went At the time of murder capacity appreciate 19. "The of the defendant to development sig- Hall’s mental or emotional nificantly wrongfulness of the defendant’s conduct or to chronolog- persons that of below of his require- conform the defendant’s conduct to the age; ical Hall is insecure man with low intel- substantially impaired ments of the law was as a self-worth; ligence; low result of mental Hall has self-esteem and disease defect or intoxication personality inadequacy which was insufficient establish defense to Hall’s basic created substantially self-confidence; but crime affected the stress erosion of his Hall judgment.” alcohol, history drug has a narcotic and/or addiction; expressed abuse and Hall sorrow for argued following 20. Defense counsel factors plead willing guilty; the murder and was mitigation. should be considered as Hall ex- wrongfulness capacity appreciate Hall’s *19 remorse; pressed young Hall was when the of- impaired. his conduct was committed; fense was Hall had a or mental emotional disturbance because of the failed rela-
699
1984)
objective
(Tenn.1989);
rigid,
is not a
portionality
State
review
and
As we had
decision
following
Bland,
comparative pro-
fatal. For the three weeks
reaffirmed
*20
prior
murder,
separation
to
and
her
the vic-
prior
defendant’s arrest for the
arson of the
consistently pursued
tim
defen-
respect
victim’s car. With
to his mental
telephoned
dant. He
state,
her residence at all
person
the evidence shows that he is a
day
hours of
night.
and
He threatened
prone
rage
who has little self control.
her, stating
point,
“[i]f
one
I can’t have Though
precise psychological
diagnosis
her, nobody can’t.”
His mother de-
[sic]
may vary,
clearly displayed
him a
scribed
as
case”
“basket
when he was
symptoms of
personality
both borderline
dis-
Attempting
unable to see her.
gain
con- order
personality
and antisocial
disorder.
her,
trol over
the defendant decided to de- He was not insane at the time this crime was
stroy
transportation.
her means of
While in
Though
young
committed.
Hall was
at the
process
accomplishing
objective,
killing, only
time of
twenty-four years
destroying
Hall decided that
her life would
old,
not,
means,
'.byany
youngest
he is
effectively
efficiently accomplish
more
and
Moreover,
person
contrary
on death row.21
purpose
preventing
his
her
seeking
from
assertion,
person
to his
only
he is not the
apart
life
from him. He demonstrated un-
penalty
Tennessee to
receive
death
for the
cruelty by choosing
common
to murder his
killing
spouse
girlfriend.
or a
Consider-
ex-girlfriend by igniting
gasoline
her
soaked
ing the nature of this
crime and
charac-
body.
Hall
his own admission never of-
defendant,
ter
places
this
this murder
Hall
pain
fered assistance to the
The
victim.
into the class of defendants for whom the
suffering which the victim endured in the
penalty
death
an appropriate punishment.
preceding
hours
unimaginable.
her death is
review,
Based
our
we conclude that the
alive,
coherent,
conscious,
She was
and alert
following
penalty
cases
which the death
her tongue
swelled to the extent that it
imposed
many
has been
have
similarities
protruded from her mouth
her eyelids
with this case.
experienced
became
only
inverted. She
Johnson,
(Tenn.
701
to all
counts as
wife,
on the murder
dant
death
prevent his
who had
dant’s desire to
killing
respect to the
of
him,
With
three victims.
from
previously threatened
leave
wife,
aggra-
jury
estranged
found two
his
compro-
a
learning
found in
that he had been
(1) that
the murder
vating circumstances:
few weeks
mising position with a woman a
heinous,
atrocious or cruel
especially
relationship
As
before the murder.
did the
mind,
depravity
it involved torture
case,
the relar-
and Hall
this
of the victim
39-2-203(i)(5) (1982),
and
Ann.
Tenn.Code
his wife had a
tionship
Johnson and
between
(2)
“mass murder”
committed
defendant
Though
de-
history
Johnson
of difficulties.
of three or
the murder
defined as
which is
attempted
place
and
the murder
nied
Tennessee
persons
the state of
more
within
upon
prisoner
a
who
killing
for the
blame
(48) months,
forty-eight
period of
within a
release,
jury
disbelieved
was on work
in a
in a similar fashion
perpetrated
and
him to
elec-
Johnson and sentenced
death
Ann.
plan, Tenn.Code
scheme or
common
trocution.
(1982).
39-2-203(0(12)
Like the defendant
(Tenn.
Miller,
In
v.
674 S.W.2d
case,
estranged
his
harassed
in this
Smith
(Tenn.1989),
1984)
In
prior to the murder.
in the weeks
wife
sen
twenty-four-year-old defendant was
fact,
killing,
had
time of the
warrants
murdering
twenty-
to death for
tenced
ag-
charging
with
the defendant
been issued
three-year-old
dating.
he had
victim
been
Smith killed
gravated assault of the victim.
damage
had been bom with brain
The victim
her in
left arm and
by shooting
his wife
mildly
The defendant
and was
retarded.
gunshot
to her neck had
The
the neck.
repeatedly
by beating
victim
killed the
cord,
paralysis
spinal
producing
her
severed
Some of the wounds were
stabbing her.
Though
minutes.
within two to six
and death
after
inflicted
death and some
death.
before
during
able to hear
she would have been
deep
Some of the stab wounds extended so
time,
victim
portion of this
Smith’s
some
into the bone
forensics
Therefore,
unable to move.
would have been
that a hammer had been used to
indicated
to hear the sounds
she
have been able
as if it were a nail. The
drive the knife
After her
being murdered.
her children
case,
raped.
in this
victim had also been
As
death,
her neck and
slashed
the defendant
drugs and alco
issue of intoxication from
an awl.
her with a knife and
stabbed
and whether its
was sufficient
hol
proof
offered
mitigation,
the defendant
issue
negate premeditation was
contested
prisoner, and
good
show that he
rejected
proof
jury
The
Miller’s
in the trial.
addition,
co-workers testified
several of his
guilty
premeditated
him
mur
and found
good employee. His mother
was a
penalty
imposed
the death
der.
severely
daughter
that he had
said
finding
especially
that the murder “was
depended upon the
teenage son who
retarded
atrocious,
heinous,
in that it involved
or cruel
emotionally. As in this
defendant
depravity of mind.” Tenn.Code
torture or
presented expert psychological
defendant
39-2-203(0(5)
(1982)(repealed).
Ann.
personality
he had
disorders.
appeal by
was reversed on direct
sentence
(Tenn.
O’Guinn,
As repeatedly emphasized, circumstances, we have two statutory no aggravating and the identical, are jury’s cases but the above eases have finding circum- many cases, similarities Hall. In outweighed mitigating all five stances circumstances particularly the victims beyond suffered cruel and Ann. reasonable doubt. Tenn.Code (1991 39-13-206(c)(l)(A)—(C) Repl. & 1996 Supp.). have the defendant’s We considered (At only) assignments of error determined that R. Heck William respect require is- none reversal. With Building 212 James herein, specifically we sues not addressed Chattanooga, TN affirm the decision of the Court Criminal (At appeal) trial and Joseph Tip-M. Judge authored Appeals, Mehler Brock ton, Gary Wade joined by Judge R. Capital Case Resource Center portions John H. Judge Peay. Relevant Avenue South 704 18th published are as an opinion of that hereafter Nashville, TN appendix. The defendant’s sentence of death (On only) appeal *23 by affirmed. sentence electrocution appellee: For the provided by out on the shall be carried as law W. Burson Charles 1998, April, of day unless otherwise 22nd Attorney of General Tennessee proper by this other au- ordered Court or and thorities. Perry
Joel W. Attorney General of Tennessee Assistant ANDERSON, C.J., and and BIRCH Parkway 450 Robertson James HOLDER, JJ., concur. Nashville, TN 37243-0493 J., REID, separate opinion. concurring William H. Cox Attorney General District APPENDIX Evans Thomas J. (Excerpts from Criminal the Court of Attorney District General Assistant Decision) Appeals’ Street, 600 Market Suite 310 THE AP- IN COURT OF CRIMINAL 37402 Chattanooga, TN OF PEALS TENNESSEE FILED: Dec 30 1996 OPINION AT KNOXVILLE SESSION, AFFIRMED DECEMBER 1993 Tipton Judge Joseph M. Tennessee, Appellee,
State OPINION v. GUILT PHASE ISSUES Hall, Jr., Leroy Appellant. I.
No. 03C01-9303-CR-00066 sufficiency challenges The defendant County Hamilton convicting to first evidence relative de- Bevil, Stephen Judge Hon. M. no argues that there was gree murder and (First arson) degree premeditation murder aggravated acted with evidence He and deliberation. asserts that appellant: For the emotionally a an shows crime committed Karla G. Gothard a mentally midst of disturbed man Cherry 701 Street personal relationship. The state tumultuous Suite 300 there was evidence responds that sufficient Chattanooga, premeditation TN 37402 deliberation.1 pleas, persisted charges: guilty in such three The defendant went trial on unlawful, (1) charges degree pleas jury, contesting only the first murder intention- before the (2) al, killing premeditated premeditated killing, and deliberate. first and deliberate killing proof, the trial court murder a committed At the conclusion reckless murder), guilty perpetration (felony jury that it return during could of arson instructed However, (3) felony premedi- aggravated either murder or for arson. he entered verdict for murder, felony both. pleas deliberated but not for guilty to arson and tated and before the instruction, reported "accept” murder. After trial court refused to Under this 704 sufficiency When the of the evidence is be visited the killer when if
challenged,
apprehended.
the standard for review is wheth-
present
“Deliberation” is
if
er,
considering
i.e.,
after
light
thinking,
evidence in
“premeditation,”
state,
most
prosecution, any
being
favorable to the
ration-
done
such a cool mental
circumstances,
al trier of
under
fact could have found
such
the essential
such
beyond
period
permit
elements of the crime
time
reasonable
“careful
weighing”
Virginia,
proposed
doubt.
Jackson
decision.
443 U.S.
318-20,
2781, 2789,
S.Ct.
L.Ed.2d
Brown, 836
(quoting
540-41
C.
(1979);
Duncan,
State v.
698 S.W.2d
67 Torcía,
(14th
Wharton’s Criminal Law 140
(Tenn.1985). A conviction
approved
that is
ed.1979) (emphasis in original)); see also
by the trial court
accredits the
(Tenn.Crim.
Gentry,
State v.
881 S.W.2d
which favors the state and resolves all con- App.1993).
flicts in
theory.
favor
the state’s
Accordingly, premeditation requires evi-
Williams,
(Tenn.1983).
“previously
design
dence of a
or in-
formed
offenses,
kill,”
At
requires
the time of the
tent to
T.C.A.
39-
“some
deliberation
13-202(a)(l) (1991) provided
period
reflection, during
the “inten-
which the
ismind
tional, premeditated
from
killing
pas-
and deliberate
free
influence
excitement
*24
West,
Moreover,
another”
first degree
premed-
sion.”
murder.2 A
going proposed killing, that, light ahead with We conclude most favor- killing prosecution, manner in which the will be ac- able evidence was complished, consequences and the sufficient for a rational trier of fact to con- guilty aggravated inquiry, Although found 2. our we arson not relevant to note degree premeditated that the definition of first murder con- and deliberate murder. No tained in T.C.A. 39-13-202 was amended in finding regarding felony reported. murder was (Supp.1996). See T.C.A. 39-13-202 indicative his actions were contentions that beyond elude a reasonable doubt intent to bum the passion and an anger, premeditated of a guilty defendant was unavailing. The heard car are victim’s There was first murder. deliberated testimony regard the defendant’s and the victim evidence that the defendant that his actions rationally conclude could relationship and were troubled kill with intent were consistent defendant, separation. The ac- midst of Moreover, although the defen- deliberation. witness, threats to one had made cording drinking on that he had dant testified victim, including telling Chris toward the his ac- question, recounted he night have that no one could Mathis the effect clarity and detail. with tions and whereabouts admitted if he could not. her that, night angry he killing, of the aspects on the certain The defendant attacks had lied to purportedly because he felt that the victim demon- the state’s premeditation and de- him. elements of strate the other inferences and offers liberation testimony included The defendant’s instance, For he could have been drawn. procurement of to commit the materials used regarding the ex- argues that the evidence jug fill with offense. He located tea injuries by itself did not tent of the victim’s gasoline in to bum the victim’s car and order Broum, See, premeditation. e.g., establish he out to find the victim. He related how set at 546. He contends that station, gas jug he went to a filled the “pouring” opinion relative to the cigarette lighter gasoline, purchased a speculative victim was gasoline put paper opening jug. in the towels inadmissible, and, event, probative Also, testimony clearly re- He contends elements of the offense. searching counted his actions for the vic- broke the driver’s the inference *25 place of em- tim. He went to the victim’s setting car before window of the victim’s side ployment grandmother’s to house. her testimony with that the it ablaze conflicted of numer- through parking He drove lots that, open door was driver’s nightclubs in his effort to ous bars and find anger, event, indicate such evidence would testimony His included the victim. ar- defendant further not deliberation. The establishment, names of each the roads he prior to his relative gues that evidence Notwithstanding traveled and actions. against the must be viewed threats victim testimony only in- the defendant’s that he that he and the to the evidence contrast car, to victim’s a rational tended bum the with one have contact victim continued to planning activity from trier of fact could infer separation. Finally, he another after their such evidence. procured the argues that he that evidence victim, finally locating the he told When to the bomb was materials with which make ear, going to burn her her he was but premeditation, but rather probative prevented leaving her from or lock- scene passion. state could have been done ing taking car herself inside the ear her West, See, at 148. e.g., to keys. According the defendant’s own tes- Essentially, contentions re- the defendant’s argument timony, and he returned an ensued evidence, some- quire reweighing jug. gasoline car The to his to retrieve the is, That it is of thing this court not do. further admitted that he alternative inferences consequence that no lying prone the front aware the victim was on upon might depending what view exist gasoline jug he lit the and threw it seat when made, our is limit- because review evidence is the scene into the car. The defendant fled jury’s guilty verdict to ed whether not the police that he committed denied later when rationally supported by the evidence the offense. light favorable to the in the most viewed review, suffi- such a we conclude that this evidence was Under We conclude state. killing and the trier of fact to find the the circumstances of the cient for a rational rationally from can drawn premeditation inferences that and deliberation elements jury sufficient to by the are the evidence beyond a reasonable doubt. sustain the first murder jury conviction. The trial court instructed the that Ms. 13(e); testimony T.R.A.P. Jackson Mathis’ Virginia, April relative 6th U.S. being fire was contingent upon admitted it S.Ct.
being made relevant at a time. later Her son, Mathis, Chris permitted was later II. April relate facts regarding the 6th incident. The defendant contends that the trial court fact, Mathis, eyewitness, was Chris an in allowing previous erred evidence about the who April connected the defendant to the 6th fires set to April the victim’s car on defense, fire. The who had earlier noted April argues 1991. He evi- said “ongoing objection,” contemporane- did not dence was not relevant to a material trial object ously testimony. to Chris Mathis’ improperly issue and it prove used Wylene Before of Viola April 17, that he committed the offenses on Price, prosecution advised the court that 1991. The state insists that the trial court’s Price and Atchley Commander Earl rulings respect with evidence the earlier Chattanooga Department Fire would relate fires were correct. statements made the victim the scene Testimony regarding fires to the victim’s to the effect that the defendant burned April car on 1st and April 6th 1991 was previous her car on two pros- occasions. The through elicited several witnesses. argued Gloria ecutor that the evidence was relevant Mathis, mind, grandmother, victim’s the victim’s state of testified insofar as she prior that the knew the defendant’s defendant had acts and there- burned the victim’s fore would not have associated him car twice vol- question. before the offenses untarily. again The defense noted that such objected The defendant based a lack of prior evidence acts would lead the proof that the defendant committed either conclude that the defendant had committed fire. requested The defendant that Ms. the acts for which being he was tried. Mathis’ statement be stricken from the rec- trial court ruled that the victim’s statements ord and curative instruction be issued were admissible as “excited utterances.” See grant or that a mistrial. The 803(2). Tenn. R. Evid. The court further prosecution contended that the evidence of ruled that it instruct the would the earlier fires was intended to show the statements were admitted to show the vic- *26 victim’s state of to “pattern mind and show a tim’s existing of state mind but not “as to of conduct through the defendant” the whether prior there were fact two fires or similarity of the offenses. prior whether there weren’t two fires.” The trial court ruled that it would allow testify Price was allowed to that the victim testimony only prior burnings about that re- told her that the to defendant had tried set lated to defendant. the The state assured Likewise, Atchley fire “to her twice before.” present the court it that witness who would a testified that the victim said that the defen- would testify that the defendant had set the dant had committed the offense and that he April 6th fire. The trial court overruled the guy was the “same that set the automobile on objection defendant’s relative to evidence court, fire on the 6th.” The trial on each prior of stipulation fires “on the if that [the occasion, jury instructed the that the state- disproven, defendant’s involvement is] [it utterances,” ments were “excited and not would] sustain the motion for a mistrial.” prove the offered to defendant committed the The trial court sustained the defendant’s ob- prior fires. jection to Ms. Mathis’ in- statement and Donnelly Ed Forester and Mike testified jury disregard structed the the witness’ prior relative the fires in course the of statement that the car had been burned investigations. their about their “twice before.” testimony, prosecution Before Forester’s the questioned
Ms. Mathis was then about the that informed the trial court the witness April implicate 6th fire but did not the defen- findings regard would relate his to his with person April April dant as the fire. investigations. who had caused the 1st and 6th The to the disregard the reference the the was relevant argued state that evidence fire, the declined but the defendant April re- 1st with the victim’s state of mind show instruction. gard relationship the to her defendant the theory rebut that and to the defendant’s notes, correctly evidence As the defendant willingly on
victim was with defendant committed some other that accused has objected night of The defense her death. independent act of that for crime or bad grounds that Forester’s statement on the inadmissible, charged generally which he is of suspected victim the defendant act a crime or though even it her nothing 1st had to do with April fire R. that on trial. Tenn. character as same no had been Howell, state of mind and that there 404(b); 868 S.W.2d State v. Evid. State, to the connecting defendant (Tenn.1993); evidence Bunch v. However, April (Tenn.1980). sustained if 1st fire. trial court objection defendant’s relative evidence has committed evidence that defendant fire, April stating that was too on separate apart 1st it from one crime suspicion actually the victim’s mere to some matter remote trial relevant probative case on trial and if its April fire was issue 1st danger its outweighed is not enough The value to allow its introduction. effect, may be prejudicial the evidence admit- trial court ruled that could also Forester Howell, 404(b); R. Evid. ted. Tenn. testify April 6th there had fire because such 254. Issues evi- S.W.2d at proof of the involvement. identity, mo- may be relevant include dence The court further noted that evidence tive, plan, intent or the common scheme or “it April 6th fire had been because admitted or mistake defenses. rebuttal of accident probative to was relevant and the issue (Tenn. Parton, 299, 301 694 S.W.2d State premeditation and intent of 1985), supreme court stated that admissi- 17th, April he ... set the on when fire bility contingent ... himself since there he finding convincing evidence clear actually set the fire.” crime, prior wrong or act committed Forester then that he had met testified See, Holman, e.g., by the defendant. 1, 1991, on April victim and that he (Tenn.1981). 411, 412-13 April investigated fire to the victim’s car facts previous As recital indi- our April He related the details cates, provide pattern the record does point testimony, At 6th fire. one in this testimony, objections rulings of clear cut previous fires.” refers “both The defen- previous fires. Sometimes regarding presence objected dant later out specifying objected the ba- without objection. no for the but stated basis objections, he claimed sis of the one time trial court stated hear the did not objection, times there continuing while other *27 previous reference more than one fire The trial specific objection no was made. objection.. ruled on the defendant’s never were, similarly, spe- often not rulings court’s Donnelly investigation of testified that the respect, note that at no time cific. In this we of “three the victim’s car revealed evidence 404(b) parties refer Rule did either He that separate and distinct fires.” added jury-out hearing provided by request a as he had set to the car on learned fires 404(b) specific rulings upon Rule at which 6th, day April April 1st and in addition to the proffer questioned each of evidence could being of the offenses tried. The defense See, e.g., Bigbee, 885 S.W.2d made. State v. objected for a to his and moved (Tenn.1994). indicates, As rule the on basis of the cumulative refer- mistrial the obligated to conduct the trial court was the fires. ences that had been made to earlier In hearing request. such absent event, motion trial court denied the mistrial there is no The result that the ultimate analysis it the because did not think that and determi- record of a However, poten- any prejudice. regarding suffered nation issue relevance had prejudice. tial trial court offered a curative instruction therefore, was, prejudice unfair admissi- ble. Nevertheless, contends, as the state record indicates that the evidence of the III. previous fires is relevant to the defendant’s argues The defendant that the trial court motive and intent his regarding conduct for by admitting photograph erred taken of the being respect, which he is now tried. this autopsy. argues victim an He at that
we note that
the trial court
stated
one
appearance in
photograph
victim’s
had
point
April
6th
that
fire was relevant to
procedures
been altered medical
and that
premeditation.
agree.
intent and
We
witness,
prosecution’s expert
as well as
Smith,
(Tenn.1993),
868 S.W.2d
witnesses,
lay
were able to describe the vic-
objected
to the introduction of
photo-
tim’s condition without
the use of
previous
evidence that
committed
assaults
graphs.
photo-
The state contends that the
against
wife,
estranged
of
one
the murder
graph was
relevant
show
nature
victims. The defendant claimed that the evi-
injuries
victim’s
and that the trial court did
404(b).
supreme
dence violated Rule
The
regard.
not abuse its discretion in this
court stated:
prosecution
The record
indicates
In response to the Defendant’s assertions
sought
photo-
to introduce a series of four
episodes
the evidence
the two
graphs, contending
they accurately
de-
irrelevant and inadmissible under Tenn. R.
picted
consistency
burns received
404(b),
cases,
Evid.
the State cites
line of
Dr.
the victim.
Merriman testified that
see,
Tumbill,
e.g., State v.
640 S.W.2d
photographs
would best
illustrate her
(Tenn.Crim.App.1982);
46-7
and State
testimony, although she
conceded
she
(Tenn.
Glebock,
905-906
condition,
could describe the victim’s
includ-
Crim.App.1981), which hold that violent
charred,
ing her
hardened and discolored
indicating
relationship
acts
between skin,
Dr.
without them.
Merriman also ad-
victim a violent crime and
de
photographs,
mitted
taken at the
prior
commission
fendant
autopsy, did not reflect the victim’s condition
are relevant
to show
offense
hospital.
at the time of her admittance to the
victim, malice, intent,
hostility toward the
regard,
acknowledged
In this
she
that inci-
purpose
and a settled
to harm the victim.
sions had been made in the victim’s skin and
Also,
victims,
present
in the
de
provided
produced
that fluids
to the victim
spite
them
the Defendant’s threats
kill
if
body,
lips
swelling
eyes,
tongue.
her
so,
they
charges against
filed
did
Nonetheless,
the trial court ruled
one
prior
Defendant based
these
assaults.
depicted
photographs,
the vic-
episodes
of these
evidence
violent
side,
lay
tim’s back as she
on her
was admis-
prove
admitted not to
the Defendant acted
sible, stating
representative
that was
all
part
accord with his
but
character
and was
the jury
burns
relevant
assist
establishing his motive for the
understanding
seriousness
killings.
probative
value of
evi
of the bums. The trial court ruled that the
outweighed by
danger
dence
photographs,
graphically
other
which more
prejudice.
unfair
head, torso,
depicted the victim’s
face and
extremities, were inadmissible because their
added) (citations
(emphasis
Smith
probative
outweighed by
value
the dan-
omitted).
present
We believe the facts
*28
ger
prejudice.
of unfair
case are similar to those in Smith. The
prior
to-
leading
regarding
defendant committed
acts of arson
the admissibili-
The
case
brought.
ty
is
charges
photographs
the victim and
were
of murder victims State
ward
Banks,
(Tenn.1978), in
charges.
was aware of the
As
v.
709
of how the offense
evidence.
relevant
an assessment
prejudicial
unfair
effect of such
Banks,
by
We note
rule,
committed
the defendant.
in
is that was
general
as stated
prosecution’s theory, as re-
part of the
that
are
in
“photographs
corpse
admissible
Donnelly,
by
Dr. Merriman
Mike
lated
they
prosecutions
relevant to
murder
if
are
injuries
that
victim’s
were consistent
trial,
was
notwithstanding
the issues on
their
material,
dousing
of flammable
gruesome
horrifying
character.”
Id. at
just
splattering.
In this
splashing
not
Jenko,
478,
People
Ill.
(citing
v.
410
950-951
was
to the
regard,
the evidence
relevant
(1951)).
hand,
veyed graphic extensive nature of contends that the The defendant of her victim’s burns and extent specula- allowing “misleading erred injuries, weighing against further the admis- opinion testimony gasoline about how tive” photograph. sion of the Id. On the other essence, used in the Mike was homicide. hand, photo- the trial court found Donnelly, Fire arson a Tennessee Marshall graph relevant to “the seriousness and investigator, gave opinion gaso- of the burns.” The trial court “poured rather than thrown” line had been photograph ruled that the showed nature contends onto the victim. The defendant injury consistency Donnelly’s burns does meet This, turn, four-part for admission of scientific ex- received the victim. test McCall, subsequent passing of a vehicle. Con- The defendant relies State v. versely, present photograph (Tenn.Crim.App.1985), which the in the altered, admitted, although was limited had been shot the chest and later run victim depicted injuries victim received dragged held that nature and over and car. This court Thus, we photographs result conduct. it was error to admit victim as a because, dispositive exception gunshot *29 to be of this the do not consider McCall with the of wound, all of the to the victim was caused issue. harm Williams, pert provided respect, testimony in State v. In ruling this the trial court’s was (Tenn.1983). appropriate. within its and S.W.2d discretion was Ballard, Williams, supreme See State 855 S.W.2d recognized our court (Tenn.1993). following expert requirements testimony: (1) (2) expert, the witness must an be specific Donnelly’s upon The more attacks subject of testimony matter the witness’ testimony that the defendant now un- raises (3) proper, subject must be matter must der pursued Williams cannot be because generally accepted explanatory conform to a they previously Obviously, not were raised. (4) theory, probative value of the if any question been had raised testimony outweigh prejudi- witness’ must its reliability court about the of the scientific fact, cial effect. Id. at 412. In principles involving fire accelerants and Donnelly’s testimony now claims that met paths explanation burning, may of full have none these factors. forthcoming Donnelly been from or other experts. proper objection, Without will we objections Unfortunately, the defendant’s not fault the trial court or the state for not plainly Donnelly at trial were not so stated. presenting greater opin- foundation for the training testified in detail substantial Otherwise," Donnelly gave. ions that we note experience explosion relative to fire and in- expert testimony regarding the nature vestigations. objection, Without the trial paths fires accelerants that take is accepted expert him court as an witness in See, e.g., Cambridge Mu- uncommon. Otis investigation. Donnelly the field of arson Company, tual Fire Insurance 850 S.W.2d testified he that fire that believed had (Tenn.1992). respect, 443-444 In this car, been started on the driver’s side of the given expertise, Donnelly’s the record of front rear both seat areas. He indicated reviewed, items he nature of the greatest these areas had suffered the reached, conclusions he we are unable to hold damage great- amount of and were where the improperly specula- his est amount of combustibles had been con- tive or otherwise inadmissible. Donnelly gasoline sumed. said applied to the driver’s side of car Y. an accelerant. He also testified that based that the trial defendant claims court viewing on his examination of the ear and his gave jury on the incorrect instructions to the bums, photographs of the victim’s premedita- first elements murder gasoline poured believed that the had been noted, tion deliberation. As our su- we directly onto the victim. He said his preme court has held that an instruction upon damage belief based the fact that premeditation may jury be formed car, being was limited to interior “in an instant” should be abandoned. car, confined to the driver’s side of both Brown, at 546. The court con- Likewise, upon front and rear. he relied improperly cluded that such an instruction fact that both the front back premeditation blurs the distinction between burned, body victim’s indication that properly deliberation and does allow just splashed accelerant was not onto her consider whether defendant’s while she was in the car. actions were done with reflection and a cool West, purpose. Id. See also During testimony, the course objection primarily related doctor, Donnelly fact that was not terms properly present case the trial attempting interpret acceler- his how an separate elements instructed body. applied intent, ant was to the victim’s premeditation, and deliberation. Donnelly However, charged trial court concluded that was enti- that: instructions give opinion exper- tled to his based his kill Premeditation means that the intent to tise, autopsy photographs, review prior have to the act must been formed investigative reports, the lab and and his kill itself. intent to conceived Such deliberately an instant. It personal inspection materials and car. formed in
7H
03C01-9410-CR-00370,
Sills,
1995
necessary
purpose
my
Mil
No.
not
that the
271726,
(Tenn.Crim.App.
Hamilton Co.
any WL
preexist in
mind
accused
(Tenn.
denied,
Sept. 11,
10, 1995),
May
app.
that
period of time. It is sufficient
definite
Person,
1995);
v.
Nathan
No.
Joe
State
act,
preceded the
however short
it
Co.,
02C01-9205-CC-00106, Madison
1993
interval,
long
as
as
it was
result
29, 1993);
(Tenn.Crim.App. Sept.
381218
WL
judgment.
reflection and
Bacon, Jr.,
No.
Hamil-
v.
State Willie
language
instruction
The
contained
Co.,
(Tenn.Crim.App.
WL 183534
ton
1992
in
court
Brown held should be abandoned.
Also,
4,1992),
in
Aug.
app. denied.
as stated
object
to the instruc-
The defendant did
supreme court
not hold
Lofton, the
did
trial
nor
raise
tion at
in March
1992
did he
premeditation
on
Brawn that the instruction
in Ms
erroneous instruction as an issue
right. Lofton, 898
violated a constitutional
motion for a
trial. Brown was
initial
new
only
it
It
stated that
S.W.2d at 249-250.
1992
in-
decided
June
and the defendant
prudent
abandon the instruction
would be
for a
the issue
his amended motion
cluded
potential for confusion.
Id.
because of the
August
denying
1992. In
new
filed
that the trial court did
err
We conclude
a
ground during
relief on tMs
the motion for
elements of
in its instructions relative
that
hearing,
new trial
trial court noted
first
premeditated
deliberated
retroactively
applied
was not to be
Brown
murder.
event,
that, in any
there was sufficient
premeditation
evidence of
and deliberation
PHASE
SENTENCING
this ease to
render
error harmless.
I.
appeal argues
state
these identical
grounds and
that
argues
claims
the issue is without
The defendant
that the trial court
a
agree.
requiring
merit. We
erred
the defense to disclose
report
prepared
Ms court-
State,
In Meadows v.
764
Mitchell,
appointed
investigator, Colin
(Tenn.1993),
supreme
our
court reaffirmed
through
Meyer. The
of Dr.
its position regarding retroactivity
it
when
report
argues that the
was attor-
“newly
stated
announced state constitu
privileged. He
ney
product
work
and was
given
applica
tional rules will be
retroactive
argues
prejudiced by
that he was
the disclo-
tion to cases which are
trial or
still
prosecution
per-
then
sure because the
process
appellate
at the
such
are
time
rules
Meyer regarding
Dr.
mitted
cross-examine
announced,
compelling
unless
reason
some
numerous acts committed
doing.”
step in
exists for not so
The first
child,
argue
a
then
acts to the
as
these
determining
given
whether
case will be
jury during
summation.
state concedes
application
retroactive
it an
is whether
report
work
was undiseoverable
nounces a
rule.
ease
new constitutional
“[A]
16(b)(2),
product
Tenn. R.Crim.
under Rule
announces a
new constitutional rule when
P.,4
argues
because the
but
or
ground
imposes
breaks new
new obli
Meyer
report
Dr.
to review the
be-
allowed
gation on the
States
the Federal Govern
report
testifying,
fore
discoverable as
Lane,
288, 301,
Teague
ment.”
v.
489 U.S.
They
argue
basis of Ms evaluation.
(1989).
1060, 1070, 103
L.Ed.2d
S.Ct.
specific
prop-
instances of conduct were
TMs court has held on numerous occasions
erly
impeachment
as
of Dr.
admitted
an
a new
Brown decision did not create
Meyer’s
that the defendant exMb-
evaluation
See,
State,
rule.
eg.,
constitutional
v.
ited various character traits consistent with
Lofton
(Tenn.Crim.App.1994), app.
personality
state, particulars of such not the but is not Accordingly, the defendant dures. Second, defendant contends that the trial ground to relief on the entitled § 39-13- in T.C.A aggravating circumstance jury of unconstitutionally deprived the court “especially 204(i)(5), the murder Smith, 857 mitigating circumstances. See atrocious, it involved heinous, or in that cruel at 17-18. S.W.2d physical beyond abuse torture or serious death,” is unconstitu-
necessary produce supreme tionally vague and overbroad. Our IV. however, contentions, rejected similar nu- The defendant’s final issue consists factor, analyzing former of this version against merous constitutional attacks 39—2—203(i)(5), read: “[t]he T.C.A statute, Penalty Death T.C.A. Tennessee atrocious, heinous, especially murder was Fifth, and—206, §§ 39-13-204 under depravity cruel in that it involved torture Sixth, Eighth, and Fourteenth Amendments Black, 815 S.W.2d See State v. of mind.” I, Constitution; Article to the United States Barber, 166,181-82 (Tenn.1991); State 8, 9, 16, Tennessee and 17 of the Sections (Tenn.1988); State Constitution; II, 2 of the and Article Section (Tenn. Williams, 526-30 contentions, Constitution. His Tennessee 1985). Likewise, rejected this this court has (A) fails to generally, are: that the statute respect version. to its current contention meaningful the class of narrow a manner Smith, Odom, v. Richard Otis a/k/a *34 (B) defendants, eligible that the death death Co., 02C01-9305-CR-00080, slip Shelby No. arbitrarily imposed sentence in Tennessee is 35, (Tenn.Crim.App. 1994 WL op. at 568433 (C) capriciously, and that death electrocu- 19,1994), app. granted grounds on other Oct. (D) punishment, tion cruel and unusual and is (Tenn. 6,1995). Feb. conducting proportion- manner of that the Third, ag- that the the defendant contends ality in Tennessee review of death sentences 39-13-204(i)(2), § in gravating factors T.C.A constitutionally inadequate. is (i)(7) (i)(6), (i)(5), the class and fail to narrow they eligible defendants because of death majority of the encompass the combine to (a) jurisdiction. is noth- in this There homicides argues pen- The defendant that the death ing support in the record meaningful alty provisions fail to in a narrow (i)(6) Moreover, (f)(2) and do argument. eligible manner the class of defendants death (i)(2) case. Factor pertain to this arguments He in Tennessee. three asserts (i)(6) was upon by the state and factor relied First, position. support in of this he con- jury. claim with rejected by the Thus the that the circumstance tends merit. respect to these factors is without 39-13-204(i)(6), the murder Brimmer, 75,87 T.C.A. that See, v. e.g., State 876 S.W.2d purpose avoiding, Cauthem, “for (Tenn.1994); was committed v. 778 S.W.2d with, (Tenn.1989). ar- interfering preventing 39, a lawful 47 prosecution or an- rest or of the defendant (b) other,” aggra- duplicates felony murder 39—13—204(i)(7) vating factor in T.C.A argues pen- that the death The defendant (1991). merit. Al- His claim is without imposed capriciously alty Tennessee factor attempted prove though the state arguments arbitrarily.6 He asserts ten (6) was so instruct- First, in this he com- support of contention. Moreover, ed, jury’s jury rejected it. prosecutors in this state have plains that the (7) held to be finding of factor has been to seek as to whether unlimited discretion Second, premeditated first proper penalty given for a conviction of case. the death Middlebrooks, argues prosecutor’s 840 that the degree murder. See the defendant subject defen- discretion to at 346. unfettered 5.W.2d record, however, contentions, respect to with support in the of his the defendant evidence any 6. Smith, See, articles, studies, e.g., 857 newspaper contentions. of his cites to numerous articles, journals. There is no S.W.2d at law review 716 charged
dant
first degree
including
authority
prosecutor
murder to a
capital
persons
sentencing hearing
an im-
those
whom he or she
constitutes
select
wishes
offense,
judicial
proper delegation
power
prosecute
capital
for a
and of
do “not
legislative
II,
power
penalty
in violation
render the death
unconstitutional on
of Article
theory
opportunities
2
that the
for
Section
of the Tennessee
discre
Constitution.
Third,
tionary
imposition
action render
such
death
argues
he
discretion violates
Brimmer,
arbitrary.”
penalty freakish or
protec-
guarantees
equal
state and
federal
(quoting Gregg Georgia,
at 86
v.
tion
and results in
wanton
freakish
153, 198-200,
2909, 2937,
U.S.
96 S.Ct.
imposition
penalty
of the death
that was con-
(1976).
Cooper
L.Ed.2d
See
Georgia,
demned in
Furman
408 U.S.
(Tenn.Crim.
State,
(1972).
536-38
92 S.Ct.
juries Sixth, prone that are to conviction. the Tennessee Constitution. The defendant argues capital defendants expenditures makes reference to costs jurors’ popular should be allowed address prosecutor’s from a decision to result “misconceptions” regarding parole eligibility, penalty argues death seek the that such the cost of incarceration versus cost of appropriations legisla- must be made execution, general deterrence and the meth- not, however, offer support ture. He does Seventh, argues od of execution. his contention the record. The state juries constitutional error instruct address this in its brief. does not issue *35 they agree unanimously must in order to (Tenn. Brackett, In 869 936 S.W.2d impose juries telling life sentence without Crim.App.1993), argued the defendant that the effect of a nonunanimous verdict. 5(a), P. allows pros Tenn. R.Crim. the Eighth, argues that the Pat- Tennessee object ecution to to the waiver of defendant’s Jury tern Instructions create a reasonable grand jury investigation jury and trial so as jurors they likelihood that believe that must jurisdiction general to of the submit the unanimously agree any of the existence court, II, sessions violated Article Sections 1 Ninth, mitigating factors. the ar- defendant 2. This court and noted: gues penalty that the Tennessee death stat- II, § 1 of the Tennessee Constitu- Article require jury ute fails to the make provides powers govern- tion that of the ultimate of determination whether death Legislative, to be into the ment are divided tenth, specific appropriate in a ease. And Executive, Departments. In and Judicial the defendant that it is submits constitutional general, “legislative power” the is the au- give deny right error to the the make, order, law; repeal thority to and the phase closing argument penalty final power” authority to inter- “executive is the capital upon of a his trial based contention law; “judicial pow- pret apply and that once an circumstance is authority interpret apply er” is proven, to the the burden of shifts provi- law. Tennessee Constitution present mitigating defendant to evidence. by any prohibits sion an encroachment of argument departments powers, func-
Relative to the defendant’s first prerogatives prosecutors that as others.... have unlimited discretion tions however, government, penalty the death in a The branches of are whether to seek case, by cheeks and bal- given guided that the doctrine of supreme our court has held ances; separation pow- in- opportunities discretionary doctrine of for action case, processing here in of a ers is not absolute.... murder
717
(citations
Brackett,
omit
939
ted).
also
that Article
The court
noted
indicative of an individualized
of evidence
states,
be
persons
“No
person
Section
with re-
improper
showing of
discrimination
shall
departments
longing to one
these
sentencing
gard to
powers
belong
properly
of the
exercise
See,
Kemp, 481
e.g., McCleskey v.
this case.
others,
in the
except
of the
ing to either
1767,
292-93,
107 S.Ct.
U.S.
Brack
permitted.”
herein directed or
eases
(1987);
Cooper,
847 S.W.2d
L.Ed.2d
ett,
addressing the
at 940 n.
869 S.W.2d
3.
531.
claim,
noted that
the court
Fourth,
the defendant submits
authority to enact
supreme court has the
system of
create a uniform
failure to
courts,
16-3—402,
§
rules for our
T.C.A.
unequal treatment
results
selection
approved
that the rules are
resolution
necessarily
results
capital defendants
Assembly.
16-3-404.
the General
T.C.A.
arbitrary
capricious imposition of
Thus, the court concluded:
Specifically, the defendant
penalty.
death
objects in
The rule which the defendant
capital
should be
that all
defendants
contends
was,
course,
initiated
this instance
voir dire
sequestered
individual
guaranteed
max-
improving
process
supreme
questioning
court
a means of
which would
jurors’
procedure
prospective
Be-
candor.
the criminal
in this state.
imize
judiciary promulgated
and the
cause
argu
supreme
rejected
court
has
Our
approved
Legislature
granting
the rule
procedures
the lack of uniform
ment
right
non-jury
prosecution
reject
dire
mandating
sequestered voir
individual
court,
proceeding in the general sessions
imposition
during
selection renders
no
other
we find
intrusion
either of the
capricious.
penalty arbitrary and
of the death
government.
branches
Cazes,
con
S.W.2d at
the court
cluded,
discussion,
argu
without
Brackett,
Sixth,
capital
the defendant
required
were
contends
to reach a unanimous ver-
defendants
ju-
regarding mitigators
should be allowed to
dict
weight.
address
or their
Thus,
expressed
popular “misconceptions”
McKoy
rors’
concerns
concerning
present
Mills are not
parole
this case.
eligibility, the cost of incarceration
execution,
versus the cost of
general deter-
Eighth,
argues
the defendant
that the Ten
rence, and the
method
execution in order
Jury
nessee Pattern
Instructions create a
arbitrary
making.
avoid
decision
This
jurors
reasonable likelihood that
are led to
however,
argument,
rejected
has been
they
unanimously agree
believe
must
on the
supreme
several occasions
our
court. See
any
mitigating
existence
factors. The su
Black,
179;
Brimmer,
815 S.W.2d at
See also
preme
repeatedly rejected
court has
this ar
86-87; Cazes,
876
at
Brimmer,
S.W.2d
875
gument.
87;
S.W.2d at
See
876
at
S.W.2d
Moreover,
Cazes,
Moreover,
pres-
the defendant did not
719 disproportionate in a imposed to be to tence defendant or favorable prejudicial to the manner.7 stage of sentencing in its use at the the state Smith, 857 penalty proceeding.” a death noted, appellate review previously As at 24. S.W.2d been held in the statute has provided for proportionality review. meaningful afford a (0 Cazes, 87-88; Brimmer, 875 at 876 S.W.2d Moreover, penalty supreme our challenge In another to the death at 270-71. S.W.2d statute, argues upheld that electrocu- the use upon the defendant court has relied pursuant punishment, reports capital there- cases tion is cruel and unusual fore, 12, Supreme Rules. violating Eighth Amendment of the Court to Rule Tennessee I, 77, Harris, court noted Article at States Constitution and 839 S.W.2d United the information it has considered 16 of the Tennessee Constitution. Section that, no two cases rejected argument reports because supreme court such Our alike, review exactly each Black, are at and has since or defendants 815 S.W.2d the in- must be based on proportionality for holding on occasions. reaffirmed its several the nature of defendant and Nichols, dividual See State v. S.W.2d Cazes, at 270-71 875 S.W.2d crime. See also Cazes, 268; (Tenn.1994); at How- 875 S.W.2d (Rule prepared; supreme report Smith, ell, 258; 857 S.W.2d 868 S.W.2d proportionality based on review for court’s Bane, 23; at 489. 853 S.W.2d Rule thorough review of the record and its (d) cases). Accordingly, the reports in other on this to relief is not entitled argues appellate The defendant basis. process penalty in death cases is con review stitutionally inadequate application. in its CONCLUSION pro appellate He contends that the review foregoing and the In consideration constitutionally meaningful cess is not be whole, conviction as a the defendant’s record reweigh appellate cause the courts cannot and sentence for first murder findings proof due to the absence of written death are affirmed. circumstances, concerning mitigating because Tipton Joseph M. /s/ appellate the information relied Tipton, Judge Joseph M. comparative inadequate courts for review is incomplete appellate because the CONCUR: methodology courts’ of review is flawed. Gary R. Wade /s/ rejected argument specifically has This Wade, Gary Judge R. supreme our court on numerous occa Peay H. John /s/ 270-71; Cazes, sions. 875 S.W.2d at see Peay, Judge H. John (Tenn. Harris, 54, 77 Barber, 1992); at 664. Justice, REID, concurring. Moreover, the defendant contends affirming guilty I the verdict concur review statutorily proportionality mandated and the sentence premeditated murder process of due is conducted violation death. there is argues of the land. He the law comprehensive procedure gathering Court—jury no issues are before Four published capital nonstatutory mitigat- cases and no information regarding instructions support circumstances, admissibility expert of criteria for the review. ing set claim, aggra- argues testimony, validity that since the of arson as circumstance, comparative vating of the current statute promulgation proportionality review.1 sen- supreme court has found no death *38 however, Branam, note, to life. Id. defendant’s sentence and reduced the that in State v. 7. We at 570-71. (Tenn. 1993), supreme court S.W.2d 563 disproportionate penalty death to be found the sufficiency regarding the made 1. No issue is support aggravating circum- the evidence to Any regard error with to mitigating cir- prejudicial.
cumstances was not Billy MAN, Plaintiff-Appellant, CASTLE opinion, As discussed in the lead the testi- mony Roger Meyer of Dr. expert as an wit- ness was not excluded the court. When ENGINEERING, INC., ROSS
the court advised counsel that evidence Defendant-Appellee. “going state of towards mind would cre- Tennessee, Supreme Court of ate a defense or an Trilling” excuse for this allowed, counsel, at Jackson. explana- would be without tion, Meyer did not call Dr. as a witness. Dec. error, any, if legal was not a error committed the court. agree
I also that arson is a aggrava- valid ting circumstance in this in which the
defendant was premeditated convicted of I argue principle murder. would that the preclude Middlebrooks is based would the establishment of aggrava- more than one
ting evidence,2 circumstance with the same
but that is not the situation in this case.
Here, the facts that established arson of the vehicle were relevant and admissible evi- offense, concerning
dence aggravating another circumstance or an ele- premeditated ment of murder. Although procedure I think the for con ducting comparative proportionality review
set forth in State v. Bland can be further
Bland,
developed, State v.
does not show the sentence death to be
disproportionate. Some of the eases in which sentence death was affirmed relied opinion in the lead are similar to this
case. The absence of similar cases which imprison the defendant was sentenced to life explained by ment egregious whereby means the murder was accom plished in this case.
Consequently, I concur. Middlebrooks, finding aggravating stances or the cir- 2. State (Tenn. 1992) ("the deficiency constitutional outweigh mitigating cumstances circum- that the row the circumstance does not nar 39-13-204(g)(l) stances. Tenn Code Ann. class, duplicates not that it the elements 1996). (Supp. offense.”).