*1 and, hold, We feel to months trial constrained in ac This was several after cordance with the trial entered the majority judge of consequently, courts that issue, have decided the that tunc. jeopardy pro order nunc not attach at a on a hearing guilty plea takes with this also issue until the is unconditionally plea accepted. trial court’s that determination See, Court, e.g., Jeffrey v. District Eighth unconditionally defendant’s accept District, Judicial (Col. 626 P.2d voluntary of plea charge to the reduced 1981); v. Odoms 359 So.2d counsel, of deference to Out manslaughter. (Ala.Cr.App.1978); Stowers again justice, of we have and in interest Ind. 363 N.E.2d Be parties. studied record and briefs of plea cause defendant’s was never accepted, reversing see basis in the record We no court, never the trial jeopardy attached and this issue. finding on therefore, prohibited, double has the court’s also called Appellant jeopardy revoking prelimi clause its of the fact the Court attention to nary determination to reduce the charge as two issues Appeals pretermitted Criminal plea of negotiations. Until a final important deems to be which the defendant judgment is reject entered a court is free to to court for a remand and asks for a plea plea agreement. and United in the event this determination of issues Sanchez, (5th States v. 609 F.2d issues primary court no 'merit found Cir.1980). Rejection rejection of one is of to The de petition rehear. Where, the other. as in this a court to Accord fendant entitled this relief. is to reduce a to agrees charge order facili court is modi ingly, judgment guilty plea tate a plea but never to the case fied to for remand of provide accepted, original, greater Appeals for consider Court of Criminal prohibited is not jeop the double peti pretermitted ation of the issues. ardy clause. things tion to is in all other denied. rehear The judgment of the Court of Criminal adjudged to Costs of rehear are petition Appeals judgment is reversed and the against petitioner. the trial court is reinstated. Costs are ad- appellee. judged against HARBISON, BROCK, C.J., FONES, DROWOTA, JJ., concur. FONES, C.J., BROCK, HARBISON, DROWOTA, JJ., concur. COOPER, Justice.
ON PETITION TO REHEAR Todd petition
Michael has filed a taking issue this court’s
rehear with state- moved, day
ment that defendant on the trial, have attorney the district gener- Tennessee, Appellee, STATE of al the order signed by file reducing charge against defendant voluntary manslaughter. points LANEY, Appellant. Thomas Gerald out that counsel earlier had filed a written Tennessee, It is seeking motion this relief. true that at Knoxville. trial, prior motion counsel filed written made no effort to have the but counsel June until the day court rule on motion Neither did counsel submit an order motion until after granting to the court notice filed. appeal
defendant’s *2 hand. right six
proximately inches bleeding. died from internal Showkeir stat- the Defendant hospital, inWhile about anything ed he did remember he had happened. insisted what drinking with driving around after *3 Defendant’s evidence acquaintances. The the that at time he entered showed the .15, content a his blood alcohol was hospital Green, Bob McD. appel- Johnson City, an ef- capable having described as level lant. “barely on a man from discernible fect Leech, Jr., William M. & Re- Atty. Gen. into stupor.” The State introduced almost porter, Jr., Asst. Jolley, Robert L. Senior ring on keys key a knife and car a evidence Gen., Nashville, Atty. for appellee. and phrase the “KKK” the bearing letters The good standing.” knife “member OPINION from Defendant’s keys had been removed hospital. keys a nurse at the The pocket by DROWOTA, Justice. engine of a car which had been started the Defendant, In this the Ger- Thomas the home on a road near Showkeir parked Laney, appeals directly ald his to this Court shooting. fence night the of the The on conviction of first and the murder along highway place the was down near the sentence of imposed by jury. death the He car The fin- where the stood. Defendant’s presents six issues for our consideration. were on the ear. This evidence gerprints record, After a careful review of the entire negate tended to the insistence We, we find all to be without there- merit. hap- nothing he knew about what had that fore, affirm the conviction and the sen- jury accepted And seems pened. tence. establishing planned evidence as a State’s Around 10:30 p.m., October Su- taken from the ambush. Bullets deceased’s Showkeir, leiman a Kingsport grocer, was his bore from the walls of house body and shot four his home. Only times at moments La- marks like those on bullets fired from shooting, before the he had home returned ney’s gun. work, from and he was enter his about to a on returned April The house from carport.1 mortal- Although on in the first conviction murder wounded, ly managed he pull himself appeal, this evidence. On into the kitchen of his home. His wife and sufficiency challenge twelve-year-old son to call for conviction. support evidence help home, from in their phone a but began found line dead.2 Mrs. of the trial sentencing phase drove The Showkeir hearing, nearby 11,1981. to a At the the State April store to seek assistance. It was presented it had dur- phone later on the evidence discovered lines had De- phase cut. to find of the trial. The ing She returned the Defendant testimony of Donald lying pool unconscious and face down in a fendant introduced Jones, at East professor psychology of blood in shot a carport. had been times, head, University. professor four The apparently once Tennessee State IQ Showkeir, gun. had a Defendant’s overall Laney who also testified mask, wearing borderline plastic clear Halloween was which he described ap- range. and a .38 On cross-exami- mentally caliber revolver was found retarded wife, Zabad, working phone at 10:20 2. The was in order 1. Suleiman Showkeir his operated City Grocery years. talking to her p.m., owned and for 14 had been for Mrs. Showkeir They days Lubbock, a week Mr. Showk- worked six Texas. sister opened at 8:00 eir the store a.m. and closed p.m. day store each between 10:00 and 10:30 nation, Mr. Jones stated that the Defendant The two Defendant asserts errors was capable of planning, committing, and committed crime; attempting up to cover that the his trial. grand jury’s Defendant met the Graham test although Laney indictment “Thomas Gerald ” intelligence his limited ability his to con- alias ‘Hustler’ with murder the first law; form his conduct to the and that the refused, degree. on Defendant’s IQ circumstances under test was motion, to strike the the indict alias from taken have could had some effect on the ment. The Defendant the failure to argues remaining score. The Defendant’s evidence prevent the alias was using tended establish that he was a “follow- alias was error because nickname or er,” he in school difficulty and that in an to inflame attempt used the State he out of dropped junior high school. Dr. and the alias was of Skinner, hospital Wendell where the at no relevance to material issue gunshot treated In Mallicoat v. *4 wounds, testified to the inju- Defendant’s the it (Tenn.Cr.App.1976), court held error ries. He also the testified Defendant to include the word “alias” in an indictment seemed mentally. normal was use when no offered of of an proof evidence,
At the conclusion of the the That alias the accused. error trial judge jury reversal, instructed the on all statu- the present warrant however. In tory aggravating mitigating circum- presented find no evidence es we The judge’s stances. instructions were alias, an tablish that the Defendant used taken from 39-24044 the of Tennessee granted the court should have the so (1975). Code jury Annotated The returned But the Defendant was motion to strike. the sentence of death electrocution with alias, by the as the evidence prejudiced not following the finding: presented clearly State establishes by the We, jury, unanimously the find the fol- jury’s squarely his verdict rests guilt. The listed lowing statutory aggravating cir- evidence; hence, it within the bounds cumstance or The murder circumstances: jury was reasonably argued cannot the was committed while the defendant was Moreover, we note the Defend inflamed. or was an engaged committing, accom- the entire ant’s motion to strike came after of, plice in the or was commission at- was jury and after the impaneled was commit, tempting fleeing or after We think the motion aware of the alias. committing commit, or attempting any was late. arson, degree murder, rape, robbery,
first
burglary, larceny, kidnapping,
pi-
aircraft
argues
The Defendant
throwing,
unlawful
racy,
placing
or
or
ring
admitting the
bear
key
court erred in
discharging of a
device
destructive
“KKK”
into evidence.
ing the letters
bomb.
of the Ku
the inference
the effect
asserts
We,
unanimously find
jury,
that there
membership
was to
Klux Klan
mitigating
are no
circumstances suffi-
keys were
agree. The
jury. We cannot
outweigh
substantial
the statu-
ciently
of the De
showing the plan
probative
tory aggravating circumstance
circum-
course,
necessary
were
They,
fendant.
Therefore, we,
so
stances
listed above.
car.
waiting
with the
to link the Defendant
unanimously
pun-
find
connection,
theory
And in this
State’s
Defendant,
Thomas Ger-
ishment
Defend
and the
strengthened,
Laney, shall be death.
ald
lack of
of intoxication and
ant’s defenses
pro
capacity were weakened.
mental
sentence and
accepted
The trial court
outweighed any
the keys
bative value of
on the
The Defend-
imposed it
Defendant.
review of the
From our
prejudicial effect.
for a
trial was overruled.
ant’s motion
new
Now,
(Tenn.
39-2-203
4.
T.C.A. §
key ring were called to
attention of the
that we overrule
require
case which would
jury by
during
closing
defense counsel
in Pritchett.
holding
time, the
argument.
Before that
the use of
Second,
argues
Defendant
inscriptions
on the
no cause to know of
circum-
aggravating
an
felony murder as
it,
it
ring, as the
did not mention
State
murder violates
in a
stance
appear
keys
passed
that the
were
double
to be free from
right
among
jurors.
any prejudice
So
is es-
jeopardy. The Defendant’s
minds of the
was created
as that of the defendant
sentially the same
himself.
275-
Houston v.
Houston,
(Tenn.1980).
In
the defense
remaining argu
The Defendant’s
provided
39-2404
asserted that T.C.A. §
sentencing phase
ments concern the
of his
imprisonment
an automatic sentence of life
points
upon
trial. He
out the
relied
the trial on the issue of
at the conclusion of
sentencing
the same evidence
argued
proceeding
guilt. The defense
hearing
upon during
guilt
jury’s finding
following
phase.
sentencing hearing,
At
something
murder in the first
establishing
State used the evidence
rob
is,
hearing, but
other than a true sentence
bery
aggravating
to show an
circumstance
rather,
for the enhancement
proceeding
for a sentence
of death.
separate
trial for a
punishment or a
argues that since this evidence was relied
“aggravated
distinct crime of
upon during
of the trial to
*5
in
argument
this
rejected
murder.” We
degree,
establish murder in the first
Houston,
since,
stating:
felony
in the absence of the
murder
guilt phase,
evidence at
reasoning
appellant’s
The basic fault with
would have been
guilty
no more than
provide
for an
is that
the Act does
murder,5
second
this
degree
sentence,”
evidence cannot
any
in
sense
“automatic life
show aggravating circumstances as it is not
is the
imprisonment
other than that life
“additional” evidence.
degree
mur
minimum sentence for
can be
imposed
der.
sentence is
No
rejected
recently
We
in
until after the “sen
imposed by
jury
Pritchett,
127,
621
140
S.W.2d
39-2404(a).
T.C.A.
tencing hearing.”
§
(Tenn.1981).
Pritchett,
In
the defendant
in T.C.A.
39-
provided
The standards
§
cited this Court to a North Carolina Su-
of the offense but
2404 are not elements
preme
case6 in which that
court held
exercise of
guidelines
establish
underlying felony
once the
had been used to
determining pun
jury’s discretion
murder,
obtain a conviction of first
only aggravating
of the
ishment. Notice
it became an element of that crime and
circumstances
can be relied on
which
could not thereafter be the
for addi-
basis
in T.C.A. Section
provided
the state is
tional
or sentence.
prosecution
We declined
39-2404(i).
holding
Spinkel
Under
state,
reasoning
to follow the
of our sister
582,
F.2d
609-610
Wainwright,
link v.
578
Court,
noting
the U.S.
976,
Denied,
(5th Cir.1978),
440 U.S.
Cert.
Florida,
242,
Proffitt v.
428 U.S.
96 S.Ct.
796,
this statuto
99
L.Ed.2d
S.Ct.
(1976), implicitly ap-
is constitutionally infirm. On the authority attempting to commit robbery. Robbery Houston, we find the argu- is the felonious and taking forcible ment lacks merit. another, person goods money value, any putting per- violence or
The Defendant argues that the trial
son in fear.
judge
instructing
erred in
the jury on elev
en of
statutory
the twelve
circ
aggravating
ant air- engaged in and not committing, or was involved 39-2404(i), 8. provides: T.C.A. § now T.C.A. “The murder was § 39-2- 10.That section 203(0- engaged numbering in while the defendant was The old will be committed used committing, accomplice in throughout or was an commit- opinion. this commit, any ting attempting to or murder, arson, burglary, larceny, rape, robbery, “(5) heinous, especially 9. The murder was kidnapping, piracy, or unlawful throw- aircraft atrocious, or cruel in that it involved torture or discharging ing, placing a destructive de- or depravity of mind.” vice bomb.” or
389
craft piracy
kidnapping
any
reaching
or
the Defendant before
pacity
arson
of the other
irrelevant
felonies in
their verdict.
of death is not
We have held a sentence
prejudice
While no
resulted from the
punishment
in violation
cruel
unusual
given
broad instructions
one need
of the state and federal constitutions. See
only
Moore,
review Pritchett and
State
Houston v.
276
S.W.2d
(Tenn.1980),
S.W.2d 348
judi
see the
(Tenn.1980),
denied, 449
cert.
U.S.
cial inefficiency
delay
which results
ty’s in having interest an end to the cum FONES, C.J., HARBI- and COOPER and proceedings. bersome criminal Under SON, JJ., concur. supervisory power, we direct trial courts charge jurors narrowly, giving guid them BROCK, J., part concurs in and dissents ance on the law to be applied to facts which in part. are reasonably the evidence. BROCK, Justice, concurring Last, we address the Defendant’s dissenting part. that, considering his low intelli my For the reasons stated in dissent in gence, the sentence of death is cruel and Dicks, Tenn., (1981), S.W.2d unusual. The evidence shows the Defend penalty I would hold that the death is un- ant possessed the mental capability plan, constitutional; but, I concur all other attempt commit and to cover up his involve respects. ment in the crime. The evidence shows the Defendant was sane at the time of the
murder, sanity is defined this Court in
Graham v.
(Tenn.
1977). This is all the law requires to hold
person accountable his actions. aOnce
defendant adjudged capable standing is offense,
trial for his the jury’s province Tennessee, Appellee, STATE of consider diminished capacity as a *7 defense to the crime mitigating or as a 39-2404(j)(8) circumstance. T.C.A. Larry BRYANT Charles read to provides and it Bryant, Appellants. consideration of whether Tennessee, Court of capacity of the defendant to appre
[t]he at Knoxville. ciate the wrongfulness of his conduct or to conform his conduct to the require 18, 1983. July ments of the law substantially im paired as a result of mental disease or
defect or intoxication which was insuffi
cient to establish a defense to the crime
but which substantially judg affected his
ment. instructed, jurors having we must ca-
assume considered diminished