*1 Tennessee, Appellee, STATE of KING,
Terry Lynn Appellant. Tennessee,
Supreme Court
at Knoxville.
July 1986.
Rehearing Denied 1986. Oct.
T.C.A. 39-2-203 is unconstitutional. On § by appel- of the issues raised consideration record, lant of the entire and after a review opinion we are of the that no reversible error was committed either the convict- trial, sentencing phase ing or *3 the verdicts and sentences are sustained evidence, and, particularly, that under the sentence of death circumstances arbitrary in way of these convictions is no disproportionate. therefore affirm We convictions, and the sentence death. The victim of both crimes for which de- fendant stands convicted was Diana K. Smith. Mrs. Smith left her home on Sun- afternoon, 31, 1983, day July go to to a nearby get to McDonald’s food for her automobile, Camaro, family. Her a 1979 4, 1983, August was found on off the road Blaine, heavily in a area near Ten- wooded nessee. 6, 1983, August
On Mrs. Donna Allen Asbury quarry County went to the Knox Simpson, R. Tipton, Eshbaugh Robert strange to swim. She noticed a odor com- Knoxville, Simpson, appellant. and for ing yellow tarpaulin from the water Smith, Gen., Atty. Gordon W. Asst. W.J. bank, reported near the and the circum- Cody, Atty. Reporter, Michael Gen. and stance to the sheriff’s office. On follow- Nashville, appellee. for report, ing-up Mrs. Allen’s officers found body of a white female an advanced decomposition. body
OPINION state la- was being ter identified as that of Mrs. Smith. COOPER, Justice. Death from one or more shots fired was appeal penalty This is a direct of a death the back of Mrs. Smith’s head from a into Defendant, Terry Lynn King, sentence. high-powered weapon. convicted of murder in the first investigation, police In the course of the simple while in the kid- of a the attention of the officers was focused on confinement, napping by armed and rob- Terry King Jerry when and Randall Sexton bеry.1 He was sentenced to death elec- Childers, King, reported acquaintance an conviction, felony trocution on the murder King he had had with and a conversation years and serve a term of 125 on the up on what he had found when he followed robbery challenges armed conviction. He the conversation. both convictions and sentences on several Terry King grounds, including rulings by Jerry the trial Childers testified that motions, dire, afternoon of preliminary court on voir came to his house evidence, 1,1983, inquired objections argu- Monday, August and as to admission of counsel, аnyone knew that wanted ments of and the court’s instruc- whether Childers Accord- jury. buy parts tions to the insists from a 1979 Camaro. Defendant also Act, Childers, King Penalty ing Tennessee told Childers he had Death years penitentiary 1. Co-defendant Randall Sexton also was convict- in the state for armed offenses, robbery. appeal receiving is not ed of the same a life sentence Sexton’s now before felony on the murder conviction and a term of court. killed King the woman who Don owned automo- drove his own automobile to the charge Shortly bile trailer. arriving after she threatened to defend- after at the trail- er, Childers, ant rape. According Eugene with defendant called de- Thornhill who came fendant said he made the to the trailer and left with woman out of defendant quaaludes. to obtain LSD and car trunk where he had confined her Defendant said he and Mrs. Smith took ground, drugs. and lie face down on the Thereafter, defendant, King, Don begged woman faced the and Eu- defendant gene Thornhill had sex him with Mrs. not shoot her offered Smith. money, turn that he ordered her to her head staying After at the trailer for several did, away from him. When she he shot her hours, defendаnt Mrs. Smith left in her in the back of the head. Defendant also automobile, with driving. They told he took forty Childers dollars from the area, went to a they again wooded where woman taking as well as her automobile. there, they had sex. From went to a ser- gas. vice for got station Mrs. Smith out of *4 following Friday, August which was grabbed the and keys. automobile the De- 5, 1983, story Childers related defendant’s get fendant her to told back the automo- to Mr. Sunday, Buford Watson. On Child- bile and she did so. The defendant drove ers the went to location defendant had de- area, Mrs. back to Smith the wooded where place killing scribed of as the the and found they again had sex and the defendant took something with hair on it. Childers then forty According from dollars Mrs. Smith. gave information the he had to Detective defendant, “why to Mrs. Smith then asked County Herman of Johnson the Knox Sher- you rape did all me?” Defendant stated Department agent, iff’s and T.B.I. David going that he then what he was knew to Davenport. following up report, In the the get do. to He told Mrs. Smith into the officers met Childers Richland near Creek did, trunk of the automobile. When she area, and finding pieces searched the of to house defendant drove Sexton’s аnd told bone, hair, A and bloodstains. later more Sexton he had a woman in the trunk of the thorough up search frag- turned bullet help. automobile and needed Sexton’s De- fragments. ments and additional bone agot fendant rifle from and a Sexton also In the police investigation, course of the shovel. Defendant and Sexton then left co-defendant, Sexton, defendant and were separate the Sexton home in automobiles. by the gave interviewed officers. Both making stop After at a Publix station to written detailing statements the events of purchase gas, defendant and Sexton drove 31,1983. night July the Neither defend- to a area wooded near Richland Creek in trial, ant phase testified in the of the County. Knox drove Defendant the 1979 but their statements were introduced in the Camaro off road and became stuck. evidence. Both testified in defendants the He then Mrs. out of the made Smith sentencing phase repeated of the and trial pointed trunk automobile and the loaded in substance the facts set forth the state- rifle at her. Defendant made Mrs. Smith given police ments the officers their ground, assuring lie down on the her that statements. her, going he wаs not to kill that others King statements of Sexton and were coming were to have sex her. Sexton with markedly similar for the time the men two left his a funnel automobile return together. King’s were statement was the gas gone, the was station. While he de- comprehensive more since it covered the the fendant shot Mrs. Smith in back of the period entire of time he with Mrs. return, and get- head. On after Sexton’s defendant, According Smith. he and ting unstuck, his the the two went Camaro cousin, King, picked effects, up burning Don Mrs. Smith at through Smith’s her Mrs. Sunday, July the Dam on They attempted Cherokee identification. then 1983. bury body, gave Defendant drove Smith in up Mrs. her the but because of the ground. nearby automobile to the house trailer of hardness The next morn- cousin, arriving p.m. ing, wrapped his there around 7:00 Sexton Mrs. sister, tent, Greeg, Lori body weighted in a it with Karen Garter’s testi- Smith’s believed, dumped blocks and it in the Asburn cinder fied that Mrs. Carter can not be Mrs. was hid- quarry. Smith’s automobile even under oath. near Sexton’s house. den The defendant offered no other evidence Davenport testified that after Agent guilt phase in the of the trial. statement,
making his
took
the defendant
place
him
other officers to the
where
evidence,
considering
On
was hidden and defendant also
the Camaro
jury found
the defendant and Randall
them where he had hidden the
showed
guilty of murder in the first
Sexton were
plate
license
in a hollow tree.
automobile
killing
degree in
Diana K.
in the
Smith
The defendant also showed the officers
simple kidnapping by
aof
con
placed
quarry
he
body
where
had
in the
of armed
robbery.
finement and
our
shooting
occurred.
and where
opinion
overwhelming
is
the evidence
Heflin,
Tommy
for
a firearms examiner
supports
jury’s
verdict.
Investigation,
Bureau
tes-
the Tennessee
the defendant
Counsel for
has called at-
that he had
Marlin
tified
examined the .30
court to the
tention of the
fact that
belonging
Sexton,
rifle
bullet
metal
instructing
judge
trial
did not
fragments
jacket,
from the
recovered
charge
include
on murder in the
second
killing.
Mr. Hef-
According
scene
degree,
charge
he
nor did
include a
lin,
intact metal
fired
jacket
had been
voluntary
involuntary manslaughter.
rifle
were
fragments
from Sexton’s
and the
*5
Defendant
this was error.
insists
rifling
fired from a rifle with the same
characteristics as Sexton’s rifle. Mr. Hef-
record shows that
defendant
opinion
lin
of the
that
least two
at
for both сommon
murder
was indicted
law
had
bullets
been fired.
murder,
felony
and two
of
and all
counts
Joseph Parker,
Dr.
an
performed
who
jury
counts
to the
for deci
were submitted
Smith,
autopsy
body
on the
of
testi-
Mrs.
a
a
Anytime
jury
sion.
court instructs a
fied that death was
extensive
due to an
case, he
homicide
should instruct all lesser
injury
gunshot
head
consistent with
and in
it
included offenses
most instances
from high-powered
wounds
a
rifle.
do
is error
so. But where the evi
not to
objection,
presented
Over
the State also
clearly shows that
dence
through
evidence
Lori Eastman
that
offense,
Carter
guilty
greater
of the
it is not error
attempted
defendant had
kill
on Oc-
to
her
charge
to fail to
on a lesser included of
13,
Carter,
1982. According
tober
Mrs.
to
Mellons,
v.
fense.
246
Defendant
charges
also
jury
permitted
Counsel was
questions
ask
commenced its
prior
deliberations
to the
concerning the presumption
innocence,
judge’s
trial
instructions to the jury, and
proof,
burden of
and the like. But to
that this deprived defendant of a fair and
juror
ask a
how he would vote would be
impartial jury.
improper
tending
as
pledge
exact a
from
juror.
See Chambers v. Bradley
The record shows that before the
County,
455,
53 Tenn.App.
Randolph, 62, 2132, 442 U.S. 99 S.Ct. sentencing phase triаl, As to the (1979). also, L.Ed.2d 713 See v. El upon the State relied evidence introduced liott, 473, 477-78 during guilt phase. addition,
Recognizing general these statements of showing State introduced evidence that the applicable law, defendant insists that the defendant and Sexton had been convicted recitals Sexton’s “Terry statement that previously of murder in the by first going said he wasn’t to let use of [the a firearm of defendant] armed go, her because he robbery aggravated was afraid kidnapping, [the and of victim] he would got 2, the same mess he being into both offenses July committed on with 1983, Lori” and thаt the defendant told him less than a month before the defend- he had placing “choked” the victim before ants killed Mrs. The Smith. State also her in the trunk of the car and later re- introduced evidence that the defendant had moved her from the trunk and shot her been convicted of an assault with intent to while begging she was for him aggravated kidnapping, not to did commit which was only days
committed killing three after the present not at the moment of the killing of Mrs. Smith. and did not shoot Mrs. Smith. In imposing the sentence of death on the defendant the In response, the defendant called numer- jury expressly fоund that: ous witnesses who testified that he had heavy been a user drugs of (1) alcohol for previously defendant was convict- years, number and that their use could felonies, ed of one or more other than the expected judgment be to and did affect his present charge, which involved the use of Further, and actions. expert there was threat of person; violence to the proof medical that the effect of LSD and (2) the murder especially heinous, was quaaludes, which defendant claimed to atrocious or cruel in that it involved torture 81, July 1983, have taken оn could ex- be mind; depravity or pected to continue for 8 to 12 hours after (3) the murder was committed for the ingestion. their There was also evidence purpose avoiding, interfering with, or remorseful, and that he preventing a lawful arrest of the defendant had disciplinary problems caused no at the another; or prison and had been moved from close se- (4) the murder was committed*while the curity to medium security. defendant engaged was in committing, or Both the defendant and Sexton took the of, accomplice was an in the commission or sentencing witness stand in the proceeding, commit, attempting was fleeing or was testimony and their substantially followed committing attempting commit, after or they gave police. the statements The any rape, robbery, larceny kidnapping. deny forming defendant did the intent to 39-2-203(i)(2),(5), (6), (7). See T.C.A. § kill Mrs. Smith before he went to Sexton’s also found that there was no house, insisting only that he went there for mitigating circumstance sufficiently sub- advise on what to do. He further testified outweigh stantial to statutory aggra- got that he the rifle at Sexton’s direction vating jury. circumstances found and formed the intent to kill Mrs. Smith 39-2-203(g). T.C.A. § after place he toоk her to the she was shot. Defendant stated he related the argue events of defendant does not Mrs. Jerry Smith’s death aggravating Childers be- prov- circumstances were not cause it bothering doubt, him. He denied en beyond a reasonable but does telling begged Childers that Mrs. Smith for insist that the trial court erred restrict- her cross-examination, life. On ing argument by defense counsel and in admitted committing two armed robberies failing give instructions, requested both in January, juvenile. when he was a aggravating mitigating as to circum- stances. The defendant also insists that Sexton generally testified in accord with permitting the trial court erred in the State given police. statement he had He show, cross-examination, that defend- having denied advised defendant to kill ant had committed two armed robberies in Smith, Mrs. gave but admitted that he de- January, juvenile. while a weapon fendant the used in the murder and accompanied scene, him to the death know- The State now concedes that error ing that Mrs. Smith was confined examining was committed in defendant as trunk of the automobile driven the de- juvenile, to his actions as a T.C.A. 37-1- § *8 fendant. helped trying Sexton also in 133(b); Dixon, 49, State v. 656 S.W.2d 51- dispose automobilе, of the in destroying all (Tenn.Crim.App.1983). However, in our Mrs. Smith’s identification in disposing opinion the error was harmless. The evi of her body. dence overwhelmingly established four considering evidence, statutory aggravating
On jury the circumstances against returned the sentence of death the that these circumstances were not out weighed defendant. by any mitigating Sexton was sentenced to life substantial cir imprisonment, evidently because he was cumstances. While it is true that one of aggravating the circumstances found jury they must also told that weigh be shall previously convict- any and consider other fact or circum- ed of one or more felonies which mitigation, involved in making stance that is in the the use or threat of person, violence to the circumstances, determination ag- of which finding the dependent was not on the evi- gravating mitigating, outweigh or the oth- dence that the defendant had committed judge’s er. The trial complied instructions crimes juvenile. undisputed while a It is in with this directive.
the record that in addition to the murder of The defendant also insists that Smith,
Mrs. the defendant had con- been the trial in failing court erred to define for victed murder the first in the jury the the aggravate” terms “to and “tor aggrava- of an armed robbery, ture,” requested by as defendant. We see kidnapping, ted and an assault with intent no error the failure of the trial court to aggravated kidnapping. to commit In view specifically aggravate.” evidence, define “to It is a of this the in admitting error term common use legalism and not a evidence of juve- defendant’s crimes as a beyond understanding the jurors. of the nile could prejudicial. not be See Rule Groseclose, 36(b) 142, See State v. 615 S.W.2d of the Tennessee of Appellate Rules (Tenn.1981)(“Mitigating”). 147-48 Procedure. Nеither any prejudicial do we find error in the trial The defendant insists he was de court’s failure to define the term “torture.” prived of by placed a fair trial restrictions The supports evidence in this case ag the argument by on of counsel the trial court. gravating circumstance, Tenn.Code Ann. The record shows that the trial court sus 39-2-203(i)(5), as defined State v. Wil § objections tained of the argument State to liams, 517, (Tenn.1985), 690 S.W.2d 532-33 history directed to the morality as the defendant shot the victim in the penalty. death We see no error in the begged head after she for her life and ruling. court’s argument defеndant’s money offered the defendant go. let her predicated was not any on evidence ad Furthermore, remaining aggra three duced at either the penalty phase vating circumstances correctly were was, of the trial and consequently, irrele charged overwhelmingly supported and are vant. More appropriately, it is argu an by the evidence. Under these circumstanc ment to be made to legislature in decid es, prejudice there was no to the defendant ing whether penalty the death is ever a by the failure to define “torture.” justifiеd punishment. Duncan, 698 S.W.2d 70-71 There are several issues directed to the given by instructions the trial court to the The defendant further contends jury in sentencing phase of the trial. instructing that the trial court erred in special In request, sought the defendant jury possible punishment of death or to have the trial jury court instruct the that that, imprisonment life “Your verdict must circumstances, fourteen different not listed punish be unanimous as to either form of statute, in the were to be considered argues ment.” He this instruction jury mitigating as circumstances. The trial 39-2-203(h), violates pro T.C.A. which § judge give requested refused to in- jury ultimately vides that if the cannot struction, assigns ruling agree punishment judge as to shall as error. impose a life sentence. We see no basic ruling instruction, judge’s on a similar issue in error in the trial which Hartman, State v. 550-51 Jury was verbatim the Tennessee Pattern (Tenn.1985), Instruction, 20.03, this court only held that the T.P.I.—Crim. formulated mandatory respect instructions with sentencing hearing capi mit for use at the in a igating circumstances are that way jury those statu tal case. There is no im can tory circumstances pose which are raised a sentence if it is not unanimous its evidence shall expressly charged. be dеcision. Where the is unable to
agree punishment, sentencing as to in simple kidnapping a and sentence of death is hearing degree of a murder first convic- affirmed. We also affirm the defendant’s tion, the instructed judge is to dismiss the conviction robbery of armed sen- and the jury impose imprison- and of life a sentence tence that he years serve 125 in the state 39-2-203(h). ment. T.C.A. The statute § penitentiary. death The sentence bewill judge also directs shall that not in- “[t]he day October, 1986, carried out 7th on the of jury, struct the shall the attorneys nor be stayed appropriate authоrity. unless permitted any at to comment time to the against adjudged Costs are the defendant. jury, jury’s on the of the effect failure agree punishment.” on a I am to state authorized that Mr. Chief
Finally, the defendant contends that the Justice BROCK concurs in the affirmance trial instructing court erred in the jury, of conviction but dissents from imposi the the aggravating circumstances set in forth penalty tion of the for death the reasons 39-2-203(i)(7), T.C.A. as follows: § expressed in in his dissent State Tennes of Dicks, (Tenn. murder committed see was while the v. engaged in 1981). committing, or of, accomplice was an in the commission FONES, DROWOTA, HARBISON and commit, or was attempting or was JJ., concur.
fleeing
committing
after
or
attempting
arson,
any
degree murder,
commit
first
BROCK, C.J.,
and
concurs
dissents.
rape, robbery,
larceny, kidnapping....
OPINION ON PETITION TO REHEAR
Specifically, defendant contends
that
rape
larceny
of
offenses
COOPER, Justice.
should not have been included as there was
petition
filed
Defendant has
a
to rehear
proof
no
justifying their inclusion. The
insisting
erroneously
that
the court has
argument
overlooks
fact that
in the
issues,
ruled on several
or has failed to
confession,
defendant’s
he stated that the
consider
considering
petition
them.
On
her,
victim
him raping
had accused
of
filed,
originally
the briefs
we find that
gold cigarette
that he
lighter
had taken a
and,
all material
were considered
in
issues
belonging
during
to Mrs. Smith
the crimi
opinion,
our
properly decided. One of the
episode.
nal
justify
These facts would
issues, based
in
on the admission
evidence
submission of the instruction in the com
fragments
skull,
of
of the victim’s
was not
plete form
judge.
used
the trial
Fur
in
in
finding
discussed
our
no
detail
that
ther, their inclusion could not have materi
prejudicial
was
error
committed
either
ally
jury’s finding
affected the
on the issue
sentencing
the convicting
phase
of the
of
overwhelming proof
view the
of mur
issue,
parties stipu-
trial. As to
der in the
degree
perpetration
first
prior
lated
to trial that Mrs. Smith’s death
simple
of a
kidnapping and
robbery.
armed
was the result
a shot in the
back of
question
Defendant also raises the
of the
high-powered
head from
de-
rifle. The
constitutionality
Tennessee Death
argues
light
fendant
stipula-
of the
Act,
Penalty
evidently as a cautionary ac-
tion the
of the skull and skull
introduction
tion
any
as he does
discuss the
not
issue
fragments
improper because
no rele-
detail in his briеf. On reference
proven.
vant issue
to be
remained
predicate
motion which
assign-
is the
ment, we find that defendant raised no
The record shows that the state
issue,
any argument
nor advanced
that has
fragments
introduced in
the skull
evidence
not been
considered
overruled in sever-
in lieu of
picture
body
of Mrs.
prior
Austin,
al
e.g.,
cases.
See
decomposed
Smith in its
state. The exam
consistent with an from a bullet high-powered
fired from a rifle at close Further,
range. pointed as out
state, fragments could be material
assistance to the in visualizing the injury
massive which caused Mrs. Smith’s bearing
death and had some proving premeditation,
element of deliberation and
an issue which the defendant would not evidence,
concede. The being relevant to jury,
issues to be decided was admis- opinion. Morris,
sible our See State v.
sible, proper prosecution it was for the
call attention to argu- the exhibit in his And,
ment. if his improp- comments were
er, considering case, evidence
they could not jury’s have affected the
verdict in either or sentencing
phase of the trial. denied,
Petition to Rehear at the cost of Appellant.
BROCK, C.J., FONES, HARBISON DROWOTA, JJ., concur. Liquidation
In the Matter of the of UNIT-
ED SOUTHERN BANK OF NASH-
VILLE, Nashville, Tennessee, a Tennes- Banking Corporation.
see
Supreme Court of Tennessee.
Oct. 1986. Sanford, Lansden,
Val Dick William L. Brooks, Conner, Harwell, Aubrey Lew B. Jr., Jr., Kanaday, Thomas P. Robert P. Rich, Ziegler, Lodge, Herbert R. Richard