State v. Leach

aggravating mitigating. See Standards hearing panel and trial court is an appro- 9.4(a) Imposing Lawyer Therefore, § affirm priate Sanctions sanction. we (Am. 1986). ed., Bar hearing Ass’n We consider action of the panel and trial court some of the mitigating respect circumstances re- with to this sanction. Maddux,

lied upon by such as how the used, Conclusion misappropriated fees were ir- be Others, relevant. physical such as or men- thirty-day We conclude that the suspen- disability tal or impairment, sup- find no imposed by hearing sion panel and port in the record and consequently do not proportionate trial court is a fair and sanc- apply under the facts of this case. tion under the circumstances of pres- Among the list of circumstances Maddux ent case. do not parties contest the consider, therefore, asks this Court to we appropriateness of the other sanctions im- only conclude that following factors posed by hearing panel either the or the justify degree court, a reduction in the express disci- trial therefore we no 1) pline to imposed present opinion be case: propriety about the of those sanc- 2) record; prior disciplinary absence of Accordingly, judgment tions. of the 3) reputation; cooperative character or at- trial court is affirmed. ap- Costs this 4) delay titude toward proceedings; peal against are taxed the Board of Profes- disciplinary proceedings. Maddux Responsibility. sional disciplined by prior never been the Board Moreover,

to the present proceedings. several attorneys local testified to Mad- good reputation

dux’s and his service to community. Maddux demonstrated a cooperative throughout pro- attitude

ceedings by admitting allega- most of the STATE of Tennessee him, against fully acknowledging tions his wrongdoing, testifying that he was willing to do required” “[w]hatever LEACH, Robert L. Jr. Furthermore, discipline. terms of Disci- plinary years took over four Counsel file Tennessee, Supreme Court matter, a Petition of in this Discipline at Nashville.

it has nearly eight years now been since June 2004 Session. complaint against ethical Maddux was Sept. entered with the Board.

Maddux’s conduct constitutes a serious disciplinary violation of the rules of this light severity state. of his of- fense aggravating and the factors raised Board,

by the suspension some amount of However, applicable warranted. mitigating justify period factors a limited suspension. hold that the We evidence preponderate against

does not the trial findings, court’s we conclude thirty-day suspension imposed by the Alderman, District Public De-

Ross E. fender; Jeffrey A. DeVasher and C. (on and Laura appeal), Deaner C. Dawn (at trial), Defender Dykes, Deputy Public Harwell, Amy D. Assistant Public De- (at trial), appellant, Robert fender for Leach, L. Jr. Summers, Attorney General and

Paul G. Moore, E. Michael Solicitor Reporter; Fulks, General; Attor- A. Assistant Mark Johnson, III, General; Dis- ney Victor S. General; B. and Thomas Attorney trict Thurman, Attorney Gen- Deputy District eral; Kathy and Katrin No- Morante Attorneys Miller, Assistant District vak General, of Tennes- appellee, for the see.

OPINION HOLDER, J., delivered the M. JANICE court, in FRANK F. which opinion III, C.J., DROWOTA, and E. RILEY ANDERSON, M. and WILLIAM BARKER, joined. JJ. case, defendant, Rob- capital

In this Leach, Jr., convicted of two L. was ert mur- degree premeditated counts of first felony mur- der, degree counts of first two der, especially aggravated one count of aggravated rape. robbery, and one count felony murder merged The trial court murder premeditated convictions with jury imposed sentences convictions. The the two murder convictions. of death for two consecutive imposed trial court nearby a Econo living at twenty-five years for the es- Nashville sentences Lodge hotel. robbery aggravat- pecially aggravated convictions, rape which were ordered ed 8, 1999, July Leach Around 3:00 a.m. on consecutively

run to the two death sen- way room of Dorianne forced his into the Appeals tences. The Court Criminal Brown, Lodge employee who an Econo and sen- affirmed Leach’s convictions hotel, her. at the and started to choke lived appeal automatic under Ten- tences. On door, someone knocked on the When section 39-13- nessee Code Annotated out a knife and told Brown pulled 206(a)(1), designated following is- we anything. person After the at say not to 1) argument:1 for oral whether the sues left, rang and dis- telephone the door support evidence is insufficient to convic- Brown ran out of the room tracted Leach. felony murder and premeditated tions the police to the hotel office and asked for 2) murder; arrived, the trial court erred whether police called. be When prohibiting presenting Leach from gone. Leach was testimony of witness to discredit the Jo- morning, 7:00 a.m. that same Around 3) Walker; trial court seph whether the sister, telephoned her Sa- Louise Howard instructing reversible error in committed McBride, sixty-nine-year-old rah widow jury to consider of Leach’s evidence from the Econo who lived about a mile “complete attack on Dorianne Brown to cousin, seventy-year- Lodge. McBride’s 4) story”; penalty whether the death Poteet, staying with old Jean precluded Apprendi this case under McBride. As a result of stroke suffered Jersey, New 530 U.S. 120 S.Ct. birth, mental ca- Poteet diminished (2000), aggrava- 147 L.Ed.2d 435 because right right leg and her hand and pabilities ting circumstances were not set out in the Poteet wore a partially paralyzed. were 5) indictment; and whether the sentences from her knee to her ankle. leg brace disproportionate of death are or invalid that telephone McBride indicated on the mandatory under the review of Tennessee drinking there a man in her kitchen was 39-13-206(c)(l). Code Annotated section pick coffee he waited for his sister to while Having carefully reviewed these issues and McBride, “Sarah, up. him Howard told by the remainder of the issues raised house, put man out of the and him get that Leach, they we conclude that do not war- “Okay. patio.” responded, on the McBride rant Accordingly, relief. we affirm the you go I’ll call later.” Howard left to judgment of Ap- returned, the Court of Criminal Howard she shopping. When peals. by telephone to reach McBride was unable

and to McBride’s house around 1:00 went up, and p.m. garage The door was FACTUAL BACKGROUND Dodge missing. truck McBride’s 1982 was proof at trial showed that State’s open. door to the house was The back Leach arrived bus in Nashville in June inside and discovered the Howard went a pursue Leach had left Missouri to and McBride. bodies of Poteet in career music and to avoid revocation a a of scissors were parole burglary wig pair his on Texas conviction. Poteet’s and A July working as a kitchen floor next to the table. By early he was on the kitchen to the Denny’s in trail of blood led from the server at a restaurant south designating setting argument, those issues it to the of oral enter an order 1. "Prior argument.” addressed at oral Tenn. Court shall review the record and briefs and wishes 12(2) (2004) added). (emphasis assigned. Sup.Ct. R. consider all errors The Court open, of the master where closet were had doorway bedroom doors mattress moved, jewelry lay open. been and boxes lying Poteet was face down with her blouse Bloody on the in pulled footprints knotted throat. were floor up and around her living hall and room. A pair jeans pair A entrance of black was next to Poteet’s in socks was found the sink the bath- lying on on head. McBride was her back room off bedroom. A pair the master naked She was from the waist bed. men’s was later retrieved from underwear down, open legs up and her were and bent from running line the toilet. sewer A body. tightened over her belt was jewelry and purse missing McBride’s were around her neck. Both women had been Dodge as was the truck. signs of trauma stabbed and showed blunt to the head. testing Forensic showed that Leach’s palm left on a wall print was McBride’s Levy, County

Dr. Bruce the Davidson fingerprints house that Leach’s were Examiner, Medical was to the scene called mug on on the kitchen table. coffee performed on police autopsies arrest, it After was determined Leach’s following Levy day. victims the Dr. bloody footprints from the floor in that both as a determined women died matched tennis McBride’s house Leach’s ligature strangulation. Levy result of Dr. on the sperm vaginal shoes and that swab opined ligature placed had been from Leach’s McBride matched DNA. neck in around Poteet’s the kitchen dragged she been to the bedroom July on p.m. ap- Around 8:00 Congestion Greenville, Missouri, while she was still alive. peared in the area of her chest and face upper indicated driving truck. Leach went to McBride’s sitting friend, on her chest or someone lower Harold Winberry, home of tying ligature when around just abdomen that he had come from announced Leach, her neck. Poteet had wounds Winberry, defensive Winberry’s Nashville. injuries wife, sister, Allen, had suffered blunt force Becky also and her went to face. had been hit at least Greenville, her She Friendly Tavern where enough bleeding force to drank, twice with cause they danced and socialized until Poteet, to had slept her Like McBride together brain. 2:00 Leach and Allen a.m. wounds had two night suffered defensive and Leach gave that and the next. Allen sets consistent paired puncture wounds pair earrings. a Leach also McBride’s aunt, being with stabbed scissors. her with his to stayed at the home of whom he multiple also had suffered blunt McBride During offered McBride’s leaf blower. head, a lac- injuries including force to her time, normally, this -visited Leach behaved nose, eyebrow. left Her guitar eration over her his and people, played with other brain, eyes truck, her her bone between and sang, Dodge and showed off bone, and three her ribs claiming breast it his own vehicle. been suffered a laceration to broken. She After Leach’s identification had been Dr. vaginal Levy her wall. determined evidence, Detec- fingerprint confirmed sexually had been assaulted that McBride tive of the Nashville Police Mike Roland during Bruising and had died attack. sister, Department contacted Leach’s Ca- legs on that were her ankles indicated her Watson, thy who lived Missouri. Wat- during rape. held Leach, called son turn contacted who July During Roland on police investigation showed Detective

The call, all prob- blamed his rummaged through telephone Leach someone had out, parole sys- and prison drawers lems on the Texas pulled house. Chest were it facility atric because would be easier go tern and threatened to to Texas Canada, flee to which would up city escape a whole block.” Detective “blow facing him if he was a death pay call a tele- not extradite Roland had the traced to Walker, Leach re- Missouri, According to phone Wayne County, penalty. where following details of the murders. put law enforcement officers were on the lated the that his car was Shortly McBride’s truck. there- Leach told the women alert for after, to call for down and that he needed the truck was located outside the broken recognized him Friendly play- a ride. One of the women Tavern. Leach was inside cup him a ing guitar stage. Denny’s on the After he was from and offered arrested, telephone call in- sorry Leach said that he “was he coffee. She received it, just get him out of the house. something snapped.” structing did but He her to get hold on one or both of the trying put claimed he had been He choke women, floor, on the help past years. got for the three them down one raped beat their heads. He woman Detective Roland Leach in interviewed through and fondled the other. He went anything Leach knowing Missouri. denied house, jewelry, took some went to Poteet, about McBride and but he talked garage, equipment, took some lawn care to Roland the incident with Brown about in a truck. Leach told Walk- and then left Lodge. at the Econo Leach claimed all the house. er that there was blood over drinking heavily night he had been always Leach also that he had had a said talking and said that he had been multiple fantasy committing secret Brown in her room a man when came to rapes homicides. the door and tried to rob him. Leach struck man. only When Brown screamed witness for the defense was room, length and ran out of the Leach also fled. Leach. He testified at about his memory parents sepa- Leach had no of what life the murders. His happened before after he left the until an infant. rare- motel he “came to” rated when he was driving Dodge truck in as a ly Illinois and saw his father whom he described wearing someone else’s father sometimes clothes. Leach “cattle rustler.” His burglaries. said that at most he had stolen the truck took Leach him to commit with drinking and asserted that he hurt that his mother had a would never Leach said anyone except problem “hung self-defense. Nonethe- out at the tavern.” less, interview, history during Leach re- Leach related a of sexual abuse marked, it, babysitter, a people, including “If I deserve I deserve it.” He several his neighbor, stranger, stepbrother. also told Roland that he had suffered and a headaches, black-outs, fourteen, a memory and loss Until Leach was he had bowel pants a in in plate put problem ever since metal had been and would defecate his every day. pun- his head after an mother would automobile accident. almost His feces; Nashville, in his During trip by rubbing back to Leach ish him his nose pointed to the road he had other children would tease him. where thrown away purse. McBride’s admitted that when he was a Leach Walker, felon, generally disrup- and was

Joseph a convicted met child he set fires they placed custody in in state at together Leach while were housed tive. He was eventually trans- County in late ten or eleven and was Davidson Jail December a at twelve. hospital 1999. testified that Leach asked ferred to state school Walker At eighth grade. after the insanity quit Walker about the defense. Leach He school burglarized gas the same sta- trying go psychi- stated that he was to to a fourteen he arrested for when he was a and was sent to December nights tion four row He was resisting arrest. years. After his assault and reform school for two parole unless release, only father for with revocation stayed he with his threatened treatment. Al- month, for three in alcohol participated traveled with a carnival he a from months, successfully graduated with his though and then moved back he treatment, He returned to to have trouble grandmother. mother and he continued officer, again parole and was a viola- year reform school for a and parole with his against he set fire to a laundro- him. released. When issued tion warrant was mat, hospital in a mental for placed prison he was in Tex- returning to Frightened of jail. year a and received as, evaluation and took a bus Leach hid in the woods released, into a he he was broke When 1999. to Nashville in June and set fire to it. Leach testified house following testimony con- gave Leach anything after that that he never burned Prior July 1999. cerning the events of incident. time, suffering from he had been to Texas, teens, to In his late Leach went until he felt depression headaches and Orleans, and to Missouri then to New back he had He said that “just exploding.” like to his mother. He became Christian work, in- became out to drink after gone camp year worked at a Christian motel, toxicated, to the and returned that he left the one-half. Leach testified on her He knocked where he saw Brown. away from after he “fell camp nineteen room, they where into her door and went Missouri, to he moving After back God.” As’he turned for several minutes. talked years robbery and served two committed a leave, “something controlled” around He went prison being paroled. before him, on thing he knew he was and the next Texas, of bur- where he was convicted him not to pleaded with top of her. Brown years on glary and sentenced to seven her, that he would promised hurt and he and was probation He violated probation. Afraid on the door. not. A man knocked gang where he was prison, sent to a Texas him, pulled hurt Leach man would that the raped. left, The man but knife. pocket out his Leach telephone rang. When then the until parole on from 1988

Leach was moved toward dove at Brown as she time, bought a house During that he the door. Leach Brown ran out telephone, air condi- heating in the and worked com- apartment to an fled until he came in an In he was tioning business. night the rest spent where he plex, plate a metal accident and had automobile shrubbery. in the sleeping parole He violated put his head. for three and one-half prison

returned to awoke, angry and he was Leach When incarcerated, years. While telephone at a pay to a He went stressed. He prison. prison transferred from left call his sister but store to convenience prisons as violent the Texas described he arrived. As officer police when rapes. beatings, killings, places full watering he saw McBride along, walked McBride Leach told yard. flowers in her again released February he was to down and asked car had broken in Mis- his lived with his sister parole on sister. When to call his telephone to use her was about until he felt that he souri answer, wanted to Leach his sister did not in the woods. went to live alone “snap” and his story up made “buy in time” and Search claimed to have won Star Leach Leach way get him. Branson, on her to sister was gone to and then to have sitting with coffee while until drank some Missouri, doing well where he was felony murder convictions with porch. the front McBride on When convictions. premeditated murder telephone rang, go McBride told Leach to get kitchen and himself another into the phase, present- the State penalty At the the call. cup of coffee while she answered in Au- that Leach was convicted proof ed kitchen. sitting Leach saw Poteet aggravated assault gust 2000 of reckless testified, Leach robbery in the second May and in 1983 of happened. I don’t know what I—I—the Levy, Dr. who recalled degree. The State thing something at the hotel. It’s same Poteet was conscious when repeated that bang. I came over me. heard a loud the vic- applied and that ligature was I I Po- thing The next know had Ms. tims have remained conscious would I my teete arms. When realized [sic] they thirty forty seconds until died to happened, go what had I let of her as minutes later. He described three to four I dropped she the floor. And freaked strangulation very painful as a form I out. I didn’t understand it because Levy Dr. also testified that death. plan didn’t it. And I heard a slam of a scissor stab wounds suffered both vic- And I turned around and it was door. Levy Dr. painful. would have been tims McBride, name, I Ms. that’s her that, although McBride further stated just think. IAnd went blank. unconscious the belt was —I have been when neck, around her she was conscious placed up that he in the stated woke show- pain suffered when beaten and would have hitting er with water his face. He did injuries to her vaginal from the tear and know where he was and was horrified head and chest. see the changed victims’ bodies. He out of bloody his clothes. He took McBride’s impact presented The State three victim outside, jewelry and purse. box He went first witness was witnesses. thought setting about the house on fire but sister, McBride’s older Louise Howard. off,” “just it blew and left McBride’s enjoyed She testified that McBride work- again truck. He blacked out and awoke ing yard. in her said that McBride She bridge Kentucky-Missouri under a on the they and that did was her best friend border. He then drove several miles daily. ex- things together almost She wrong turning direction before around pressed deep grief losing her her sister. Greenville, heading Missouri. On The next witness was Poteet’s cousin and cross-examination, Leach ever talk- denied legal guardian, Harris. He de- William ing with Walker about the facts of the case relationship his with Poteet as al- scribed him approached said Walker with most that of a brother. He testified that insanity the idea of an defense. very capacity Poteet had the mental evidence, gone and had to school upon bright Based the above child degree premedi- through grade. convicted Leach of first the sixth or seventh De- Poteet, degree spite handicaps, tated murder of Jean first her she was an excellent McBride, faithfully cared for premeditated housekeeper murder of Sarah and had they Harris’ mother until degree felony (during parents first murder her Poteet, for the robbery) of Jean died. The last witness perpetration He felony (during stepson, murder the McBride’s Robert McBride. degree first had that his father and McBride robbery) of Sarah testified perpetration McBride, twenty-seven years until aggravated robbery of been married for especially McBride, Although in 1992. aggravated rape of his father’s death Sarah husband, for her she merged grieved McBride. The trial court McBride Sarah Rever- “snap” frighten people. and enjoy again. to life He would eventually come “very, very Leach as im- end Duma described that the murder had a horrible stated lonely.” youngest him how his pact on and related killings daughter, eight who was when Ann La- mitigation witness was Another occurred, going avoid near wanted to Point, a nurse and licensed social worker

McBride’s house. Texas, Leach for sev- from who counseled years parole. while he was on eight en to mitigation, presented the defense immature, characterized Leach corrob- LaPoint as testimony of several witnesses who delusional, angry, needy, and depressed, life orated Leach’s account of his before aunt, Henson, self-esteem. Describ- suffering from low the murders. Leach’s Jane twenty in a or five-year-old as “a ing'him that Leach’s father had been testified body,” said that she thirty-year-old chil- she nothing who cared for his womanizer appropri- Leach how to dress mother mean to had to teach dren and that Leach’s confirmed ately and comb his hair. She his father. Leach because he resembled going aunt, Waltz, afraid of back that Leach was Judy Another stated beaten and prison because he been came to with her when he was Leach live She testified very sexually there. twenty-seven. He was assaulted twenty-six or tried to commit suicide courteous, him to leave that Leach had but she had to ask himself, bridge, hanging and jumping infatuation off a drinking of his and his because out, bridge embankment. car into a running After he moved his daughter. her with cross-examination, LaPoint admitted roofing business On Leach had a successful games mind with played that Leach had drinking. it of his but lost because abuser,” had friend, Bennett, substance typical Richard her “like a Leach’s childhood falsify urinalysis, had trou- attempted to mother would beat Leach told how Leach’s to blame authority, and “wanted him him in a closet. ble with punish by putting and society shortcomings for his as a troubled the world Bennett described Leach responsibility his child, accepting by other children because instead tortured Ben- actions.” pants. and soiled his passive he was frequented that Leach nett related found upon proof, Based this he was a pedophile of a known when home a rea- beyond proven that the State had Watson, sister, Cathy testi- child. Leach’s statutory ag- following sonable doubt the that, paroled from fied when Leach was regard with gravating circumstances changed he had prison the Texas 1) previ- defendant was victims: both paranoid and scared. Watson and was more felonies one or ously convicted of July morning that on the also stated (reckless robbery), aggravated assault ring but telephone heard her she had charge, whose stat- present than the other it was sick. did not answer because she the use of violence utory involve elements 2) especial- witnesses, the murder was person; to the Carol Two other defense atrocious, in that it Duma, heinous, or cruel ly Harry testi- Duma and Reverend physical abuse torture or serious Leach. Mrs. involved their contact with fied about death; necessary produce beyond kindergarten taught Duma 3) commit- knowingly the murder was apprehensive. him as fearful described the defendant defendant while experi- ted positive their Both testified about committing role had a substantial worked for them with Leach when he ence robbery aggravat- to commit attempting late teens. camp in his at a Christian § Ann. 39-13- well, rape. Tenn.Code at times he ed to do but Leach seemed (1997). (Tenn. (7) Reid, 247, 204(i)(2), (5), As to victim Jean State v. 2002). Poteet, jury strong that the is to the also found The State entitled beyond a a all proven legitimate reasonable doubt est view of the evidence and statutory aggravating fourth may circumstance: inferences which be drawn reasonable seventy years age Davidson, or victim was from it. State v. (Tenn.2003). particularly older or was vulnerable due to Questions regarding significant handicap significant witnesses, a dis- credibility weight and ability, physical, evidence, mental or and at whether any value of the factual is the time of the murder the defendant by the are resolved sues raised evidence reasonably knew or should have known of by fact. Id. the trier of handicap disability. such Tenn.Code Degree Premeditated Murder First 39-13-204(0(14) § (Supp.1998). Ann. prov- further found that the State had degree First murder includes a aggravating en that the circumstances out- an “premeditated killing and intentional weighed any mitigating circumstances be- 39-13-202(a)(l) §Ann. other.” Tenn.Code result, yond a reasonable doubt. As a (1997). Premeditation is defined as fol jury sentenced Leach to death for the lows:

murders of Jean Poteet and Sarah (a)(1) “premedita- As used in subdivision McBride. tion” an is act done after the exercise judgment.

reflection and “Premedita- ANALYSIS kill tion” means that the intent to must prior have been formed to the act itself. Sufficiency of Evidence necessary It purpose is challenges sufficiency kill pre-exist the mind of the accused to support evidence the convictions for any period definite of time. The degree premeditated first murder and first mental state of the accused at the time degree felony murder. He does not dis- allegedly the accused kill decided to Instead, pute that he killed the victims. carefully must be considered order argues he that the evidence is insufficient determine whether the accused was suf- to support premeditat- the convictions for ficiently pas- free from excitement and ed murder because the State failed to capable premeditation. sion as to be prove premeditation. argues He that the 39-13-202(d) (1997). § TenmCode Ann. support evidence is insufficient to the con- may Premeditation be estab felony victions for murder because the a ra by any lished evidence from which prove State failed to he intended tional trier of fact infer that to, prior rob victims either or contem- killing was done “after the exercise of re with, poraneous their murders. judgment” required by as flection and sufficiency of the evi Annotated section 39-

When Tennessee Code 13-202(d). Davidson, 121 challenged, dence is the standard of review at 615. whether, considering previously the evidence in the have identified the follow We light prosecution, ing supporting finding most favorable to the circumstances as deadly rational trier of fact premeditation: could have found of the use of victim; beyond weapon upon the essential of the crime an unarmed elements cruelty killing; P. of a the defen R.App. particular reasonable doubt. Tenn. 13(e); intent to Virginia, Jackson v. 443 U.S. dant’s threats or declarations of (1979); kill; of a procurement 99 S.Ct. 61 L.Ed.2d 560 the defendant’s

54 alerting the them from prevent the and to to conceal weapon; preparations crime is before the police. crime undertaken

committed; of destruction or secretion a defendant’s killing; evidence of the Felony Degree Murder First State v. killing. calmness after a See (Tenn.1997). includes a Bland, degree First murder However, factors are not exhaus perpe these in the “killing of another committed Davidson, 121 at 615. Es tive. S.W.3d ... attempt perpetrate any to tration of killing motive for the tablishment of a § Ann. robbery.” Tenn.Code 39-13- jury may the infer a factor from which (1997). 202(a)(2) Robbery is defined as Nesbit, v. premeditation. State knowing prop theft of “the intentional (Tenn.1998). Premedita S.W.2d of another vio erty person from the from the use of tion also be inferred person the fear.” putting lence or v. weapons succession. State multiple 39-13-401(a) (1997). §Ann. Tenn.Code (Tenn. Bush, 501-502 1997). Moreover, repeated evidence of felony a murder support To premedita to establish blows is relevant conviction, to commit the under the intent tion, alone is not although this evidence to or concur felony prior must exist lying premeditation. to establish sufficient of the act caus rent with the commission (Tenn. Sims, 1, 8 v. of the victim. State ing the death 2001). (Tenn.1999). 102, 107 Buggs, 995 S.W.2d ‘ evidence, when conclude that the We underly to commit the Although the intent to the light in the most favorable examined from the felony presumed cannot be ing State, finding to a support was sufficient felony, jury may the committing act of multiple Leach inflicted premeditation. actions reasonably infer from a defendant’s during par- victim the upon wounds each immediately killing that the defen after used two ticularly killings. cruel Leach felony the intent to commit dant had ligature and a each weapons- —on —scissors killing. Id. to or concurrent with prior victims. attempted Leach of the unarmed at 108. un- by flushing his dispose to of evidence down the toilet. Leach exhibited derwear evidence, when conclude We by showering, the murders calmness after favorable to the light in the most viewed valuables, clothes, looking for changing his State, to establish that the was sufficient he to Missouri where driving and then underlying felony of commit the intent to friends at a tavern socialized with causing to the acts robbery prior existed no prior Leach made night. Although morning deaths. On the victims’ kill of intent to threats or declarations murders, evading police Leach was Poteet, after he told Walker McBride and on Brown. His tele- of his attack because always had a murders that he had went unanswered. phone call to his sister committing multiple fantasy secret the success lied to McBride about rapes and homicides. Even without Walk- After the “buy to time.” the call order however, jury could testimony, er’s money murders, truck and Leach had the reasonably inferred that Leach acted have From this flee Nashville. he needed to when, to desperate premeditation with reasonably evidence, have could escape to arrest for attack- leave Nashville intent formed the that Leach had inferred Brown, McBride and Poteet ing he killed murders. to their prior to rob the victims facilitating flight his the means of obtain Testimony mony under Rules 613 Evidence Discredit was admissible Joseph Walker 616 of Tennessee Rules of Evidence. presented were not These theories court Leach asserts that the trial trial, trial In his motion for a new court. him prohibiting presenting erred in from that Leach the trial court’s exclu- argued of testimony to discredit the Jo (cid:127)witness testimony Mount’s sion of Dr. violated above, seph As noted Walker Walker. confrontation, to fair rights Leach’s to a incriminating testified about statements due impartial jury, trial an and to before by they made Leach while incarcer were rule, may a process. general party a As Davidson County ated in the Jail. Walker ground, issue on litigate not an one aban- stated on cross-examination that while at a post-trial, Mental Institute don ground Middle Tennessee Health that and assert (“MTMHI”) in ground December 1999 had re on appeal. he new basis or Johnson (Tenn.2001). answer certain He questions. State, fused to 60 n. 8 telling denied evaluators at MTMHI the issue of Dr. We hold that whether only he had been arrested for minor of testimony Mount’s was admissible under fenses, read, he could not that he Rules 613 and 616 is waived because Leach sixth-grade only education. Leach did not it the trial court or in his raise sought from court to permission the trial R.App. new trial. motion for a See Tenn. Mount, Joseph call Dr. psychologist 36(a). 3(e), P.

MTMHI, impeach to evidence Walker with had lied to he evaluators about his Moreover, we conclude that Leach record and personal criminal information. would not entitled to relief even if the be requested Leach also that Dr. Mount be properly preserved. issue had been testify to permitted diagnosed that he was argues testimony that Dr. Mount’s suffering adjustment Walker as from an 613(b) under Rule as admissible evidence disorder and concluded that was Walker prior by of inconsistent statements Walker malingering attempting manipulate to 616 as and under Rule evidence of Walk process. the evaluation trial court against Leach. prejudice er’s The State that, under of plain language ruled responds that the inconsistent statements 608(b)2 of Rule the Tennessee Rules of were not admissible as extrinsic evidence Evidence, Leach precluded pre was from they under Rule 613 because related senting regarding extrinsic evidence Walk and that collateral facts Dr. Mount’s testi alleged er’s lies. Even if Dr. Mount’s mony prejudice failed to establish bias or admissible, testimony proffered was meaning within of Rule 616. At the trial ruled that it court should be excluded 613(b) trial, provided: time of Leach’s Rule under Rule 408 of the Tennessee Rules a prior “Extrinsic evidence of inconsistent Evidence it could and mis because confuse by statement a witness is not admissible delay. lead the cause undue opportu unless is afforded an the witness deny or nity explain the same and appeal, Leach

On has abandoned opposite opportunity is afforded an testimony party that Dr. argument his Mount’s thereon, impeachment under the witness or proper interrogate evidence justice testi- otherwise require.”3 Rule 608 and now contends that the interests of 608(b) provides part: provided may be pertinent 2. crime as Rule not Rule proved by evidence.” extrinsic "Specific instances of conduct of a witness attacking purpose supporting or 613(b) add was amended in 2003 to Rule credibility, witness's other than convictions until,” making phrase the rule clear- "and (Tenn.Crim. Perkinson, 1, 7 may “A offer evi- party Rule 616 states: cross-examination, evi- extrinsic dence App.1992). both,

dence, is that a witness biased or fact rule essen The collateral prejudiced against party favor of relevancy. Under Rule 402 tially a rule agree with another witness.” We Evidence, Rules of “[e]vi- of the Tennessee position. State’s is not relevant is not admissi dence which rule, fact Under the collateral as “evi Relevant evidence is defined ble.” during of a witness made the statement any tendency to make the having dence fact as to a collateral cross-examination consequence fact is of existence evi impeached extrinsic be of the action more to the determination inconsistent statement as prior dence of a than it would be probable probable or less Hill, that fact. See State v. 401. Tenn. R. Evid. without the evidence.” 815, gener (Tenn.Crim.App.1980); see 820 may excluded evidence be Even relevant Cohen, Sheppeard Y. & ally Neil P. Sarah substantially is out probative “if its value Paine, Law Evi Donald F. Tennessee of prejudice, of unfair weighed by danger the (4th ed.2000). A collateral § 6.13[6] dence issues, misleading or confusion of the affords no reasonable fact is one which delay, of undue jury, or consideration principal matters inference as to the time, of presentation of or needless waste R. City v. & Suburban dispute. Saunders R. 403. Tenn. Evid. cumulative evidence.” 1031, Co., 130, 1034 99 Tenn. S.W. embody principles and 403 Rules 402 (1897). of purposes A collateral for fact is fact rule. We underlying the collateral only collateral fact rule if it is relevant therefore, fact conclude, that the collateral something said because it contradicts through Rules 402 rule remains viable court; if it is relevant it not collateral is contradiction. See independent §at 6.07[4][c]. Tennessee Law Evidence proof, ad any type As with on depends evidence missibility of extrinsic of the Rules Prior to the enactment by extrinsic evi relevancy. Impeachment an Evidence, fact rule was the collateral by Rule 613 must contemplated law in dence as of the common part established to a material issue See, to facts relevant Rogers, 703 relate e.g., State v. Tennessee. of ex the introduction 166, Allowing at trial. (Tenn.Crim.App.1985); of contra Marlow, purpose for the 412 trinsic evidence State v. merely testimony about dicting a witness’s This rule of evi- (Tenn.Crim.App.1983). only time but waste just conclu- trivial facts would upon the dence was founded The motive of jury. could also confuse of such evidence that the introduction sion however, relevant to witness, always uselessly to tends to confuse Creeping Bear See judi- the main issue. expense protract and increase State, Morrison, Tenn. 87 S.W. Decherd v. investigations. cial (1905).Therefore, that is (1852). extrinsic evidence Although the 306-07 32 Tenn. may be purposes for other the col- inadmissible do not mention Rules of Evidence un prejudice prove bias rule, applied admissible it continues to be lateral fact See, Rule 616. v. der e.g., by courts this state. deny does not plain it. The amendment prior evidence of the

ly that extrinsic indicate analysis and until” case. inadmissible "unless in this statement is affect opportunity to ex- an the witness is afforded a crime as case, disposition his to commit such In this inconsistent Walker’s involved collateral facts. Proof statements that on trial. lied to mental health evalu Walker only may be considered This evidence per criminal ators about his record purpose limited of determin- you for the information would not have been rel sonal ing provides: it whether to a material issue at trial. Walker evant (a) crime; complete story of the his thoroughly

was cross-examined about is, testifying. may be considered criminal record and motive for such evidence manip Proof that was evasive and prior Walker crime and by you where during his mental health evaluation ulative logically relat- present alleged crime are probative would also have had little value connected, proof ed or so in favor of showing that he biased tends, necessary prove other or is Leach. As prejudiced against the State or necessary a com- charged, one or is observed, Appeals the Court of Criminal thereof. plete account testimony of Dr. introduction Mount’s (b) is, motive; such evidence would resulted in a mini-trial con have if it to show by you be considered tends cerning during actions his mental Walker’s com- a motive of the defendant for the potentially health evaluation and confused presently charged. mission of the offense capital the issues of Leach’s murder trial. conclude, therefore, that the trial court We crime, if con- Such evidence of the other properly excluded the evidence under Rule by you any purpose, for must sidered 403, regardless theory of the of admissibili for other any purpose not be considered ty. Finally, we conclude that error that, specifically, than stated. because, assuming would be harmless Dr. Ap- appeal, On the Court of Criminal testimony, Mount had discredited Walker’s in not peals held that the trial court erred remaining the evidence was sufficient to conducting jury-out hearing required as support the convictions. Gilliland, 22 272 State v. S.W.3d Regarding

Instruction Evidence (Tenn.2000), to determine whether the evi- Attack on Dorianne Brown to show contextual dence was admissible addition, In background. Court

The trial court admitted evidence that in Appeals Criminal held the evidence of Leach’s attack on Dorianne Brown properly not admitted as question was 404(b) Lodge the Econo Rule of the under background contextual evidence under Gil- Tennessee Rules of Evidence to show mo Appeals liland. The Court Criminal object tive. Leach did not to admission of concluded, however, that the error was jury ground. the evidence on this At the harmless because the evidence was admis- conference, however, charge the State re Court, In this prove sible to motive. jury trial court instruct the quested the that admission of the evi- submits that it could this not consider evidence not render ground dence on another did only provide to show motive but also to that harmless the trial court’s instruction complete story “the of the crime.” The purpose charged jury as the evidence could be used for the agreed trial court story of the providing complete follows: “the Leach contends that this instruc- crime.” you If find that the de- proof from the jury to consider the attack tion invited the fendant has committed a crime other propen- trial, establishing on Brown as Leach’s you that for he is on than which case, sity to commit the crimes this may prove not consider such evidence to holding jury violation of this Court’s in State v. invite the consider the attack on (Tenn.1985). Parton, In propensity Brown as evidence. deter erroneous, mining whether are instructions Gilliland, forth Court set charge must this Court review the in its following determining standard for when entirety and a whole. read it as State v. background involving evidence other (Tenn.1997). Hodges, 944 S.W.2d crimes, wrongs or acts be offered “for regarding The instruction the use of this 404(b): purposes” other under Rule jury specifically evidence directed the state seeks to offer evidence [W]hen “may it such consider evidence to crimes, wrongs, of other or acts that is prove to commit disposition [Leach’s] such only relevant to provide a contextual The jury a crime as on trial.” case, background the state must this presumed have followed instruction. establish, find, and the must trial court Williams, See State v. (1) of the absence evidence (Tenn.1998). that, conclude therefore We concep- create a chronological would whole, viewed as a instruction regard tual void in the presentation state’s its on Brown ing evidence of the attack (2) case; the ab- void created not erroneous. likely sence of the evidence would result significant confusion as to the Charge Aggravating Failure to case; material issues or in the evidence (3) Circumstances probative value evi- Indictment outweighed by danger dence is not prejudice. of unfair Apprendi Leach contends added). (emphasis By Id. at 272 its own 466, 2348, 120 S.Ct. Jersey, New 530 U.S. terms, this standard limited to is “evidence 12.3(b) (2000); Rule 147 L.Ed.2d 435 of crimes, of other or acts that wrongs, is the Tennessee Rules of Criminal Proce only provide to back- relevant contextual dure; I, Article 9 of the Tennessee section case.” ground (emphasis for the Id. add- Constitution; Anno and Tennessee Code ed). The State did not offer evidence of that an require tated section 40-13-202 attack on Brown as contextual back- indictment for murder reflect that capital for the ground case. The evidence was of grand jury the existence one found properly offered and admitted to show mo- circum statutory aggravating or more tive, There- a material issue in the case. that re acknowledges we stances. fore, no error to admis- occurred relative Dellinger, v. jected argument this in State this sion of evidence. (Tenn.2002), but asks Dellinger. in properly ruling

The trial court in that we reconsider our in detail in our structed the that the evidence could addressed this issue We Berry, 141 purpose of in v. be considered the limited recent decision (Tenn.2004). noted that determining whether it tends to show a We S.W.3d that proving Dellinger Evidence motive neces our statement in “[t]he motive. statutory range is sarily purpose completing penalty serves the of death within the Therefore, portion prescribed by legisla the crime. story punishment of murder,” degree instruction the evidence ture for first S.W.3d at allowing to light in purpose providing entirely considered for the is not accurate be Arizona, 584, 122 story complete Ring “the of the crime” 536 U.S. S.Ct. was (2002), Moreover, Blakely superfluous. contrary 153 L.Ed.2d 556 — -, assertion, Washington, S.Ct. Leach’s the instruction did not v. U.S. robbery aggravat- or (2004), attempting to commit 159 L.Ed.2d 403 both of § Ann. 39-13- see TenmCode rape, ed Dellinger. which were decided after See 204(f)(7) (1997), Po- and that victim Jean Berry, 141 at 560 n. 14. We con age or older or seventy years teet was cluded, however, Ring Blakely do signif- due to a particularly vulnerable ruling Dellinger not affect our in that the disability, handicap significant icant or required charge aggrava State is physical, or and at the whether mental in ting circumstances the indictment. For of the murder Leach knew or reason- time Berry, stated in we hold that the reasons handicap of such ably should have known no error occurred this case. §Ann. 39-13- disability, see TenmCode Mandatory Review 204(i)(14) (Supp.1998). further hold We jury’s find- supports that the evidence We are bound statute to review the circumstances ing aggravating of the death to deter- application penalty any mitigating circumstances outweighed mine whether: beyond a reasonable doubt. (A) imposed The sentence of death was fashion; in any arbitrary Next, we must determine (B) supports jury’s The evidence whether the sentence of death this case finding statutory aggravating disproportionate penalty imposed circum- is to the circumstances; cases, considering stance or the nature of similar the crime and the defendant. Tenn.Code (C) jury’s The evidence supports the 39-13-206(c)(l)(D) (1997). §Ann. We are finding aggravating circum- following principles applica mindful of the outweigh any stance or circumstances proportionality ble to review: circumstances; mitigating (D) conducting comparative propor- The sentence of death is excessive review, pre- im- with the disproportionate penalty tionality begin we cases, posed considering sumption similar both the sentence of death proportional nature of the crime and the defen- with the crime of first de- gree dant. murder. A sentence of death disproportionate if the case be found 39-13-206(c)(l) (1997). § Ann. TenmCode “plainly lacking in cir- being reviewed is record, Having thoroughly reviewed the in cumstances consistent with those sim- we find no indication that of the sentence has penalty ilar cases in which the death imposed arbitrary death was in an fashion. A previously imposed.” sentence been presented We also conclude that the State disproportionate merely not of death is proof uphold jury’s finding sufficient circumstances of the offense because the prior Leach had for felo- convictions of offense are similar to those another statutory nies whose elements involve the has received a life for which a defendant person, use of violence to the see Tenn. therefore, inquiry, does sentence. Our 39-13-204(i)(2) (1997), § Ann. Code finding that a require sentence especially in this case the murders were imposed was never in a “less than death heinous, atrocious, they or in that cruel characteristics.” Our case with similar physical torture or abuse involved serious that no aberrant death duty “is to assure death, beyond necessary produce sentence is affirmed.” 39-13-204(i)(5) § see TenmCode Ann. (Tenn. Hall,

(1997), 135 that the murders this case were v. in State omitted). 1998) (citations have found by Leach while he We knowingly committed identifying in helpful factors committing following in substantial role 60 1) continuing and starting from childhood cases: the means comparing

and similar years prison. Despite 2) into his adult death; for manner of the motivation and experienced periods Leach problems, these 4) 3) death; the simi- killing; place of of calm his life when he was relative and treatment of the larity of the victims employed. gainfully 5) victims; presence the absence justifica- provocation, and premeditation, upon Based an exhaustive review 6) tion; injury to and effects on and 12 Rule Supreme of the record and Court Bland, 958 victims. See non-decedent reports, we conclude that the sentences defendants, comparing at 667. In S.W.2d case are not exces imposed death this following compared non-exclusive we consider the when disproportionate sive or 2) 1) cases. See penalty imposed criminal in similar history; age, prior factors: (Tenn.1997) Mann, 959 503 3) emotional, State v. S.W.2d race, mental, gender; and (defendant sixty-two- raped and murdered 4) condition; in the mur- physical role death during burglary, year-old widow 6) 5) authorities; der; cooperation with (i)(5) (i)(7) upon upheld sentence based 7) remorse; knowledge helplessness Bush, circumstances); v. State aggravating 8) victim; capacity rehabilitation. (defendant (Tenn.1997) 942 S.W.2d 489 See id. widow, seventy-nine-year-old murdered case showed that proof The this (i)(5) upon upheld based death sentence beat, stabbed, and stran- brutally Smith, (i)(6) v. 893 aggravators); raped one gled elderly two women. He (defendant (Tenn.1994) raped S.W.2d 908 victim, Sarah sixty-nine-year-old widow widow, sen elderly death and murdered McBride, other dying. was The as she (i)(2), (i)(5), and upon upheld tence based Poteet, victim, seventy-year-old Jean Cazes, (i)(7) 875 v. aggravators); State mentally physically disabled. both (Tenn.1994) (defendant raped S.W.2d 253 during committed The murders were woman, sen death elderly and murdered home and were moti- robbery McBride’s (i)(2), (i)(5), and upon upheld tence based Barber, by Leach’s desire to obtain (i)(7) vated v. aggravators); State (defendant (Tenn.1988) mur prevent and to fleeing means for Nashville S.W.2d woman, up death sentence elderly dered alerting police. the victims from (i)(5) aggravator); State upon held based that Leach had al- evidence also indicated (Tenn.1987) McNish, v. committing multi- ways fantasy had a (defendant seventy-two-year-old murdered The murders ples rapes and homicides. widow, upheld upon based death sentence and un- premeditated, unprovoked, were Harbison, (i)(5) aggravator); State justified. (defendant (Tenn.1986) mur Leach, male, thirty-seven a was white woman, death sixty-two-year-old dered and old at the time of the murders years (i)(5) aggrava upon upheld sentence based con- history including criminal prior had a Cone, tor); and State v. assault, robbery, aggravated victions for (defendant (Tenn.1984) elderly murdered minimally burglary. cooperated and He upon upheld based couple, death sentence horror, but expressed authorities and with (i)(6) (i)(2), (i)(5), Leach aggravators). remorse, murders. Leach no about the that, nature the horrible despite contends that he suf- presented mitigating evidence committed, the sentences of the crimes he self-esteem, depression, fered from low in this case disproportionate of death are neglected was He and suicidal tendencies. He he history of abuse suffered. given the to a life sentence jury imposed a child. He claimed a argues and tormented as abused, defendant in where the sexually a similar case physically and have been affirm the abuse, opinion, in this we citing addressed history extensive less Appeals. of the Court of Criminal decision Sepulveda, 1997 WL 351107 State v. J.Y. opinion are incor- 1997).4 portions of that 26, Relevant (Tenn.Crim.App., June We re- attached as an and are porated herein however, iterate, analysis that our does not and sen- Leach’s convictions appendix. given require a determination of whether however, note, affirmed. We tences are like subjectively case is “more less” aggra- especially for the judgment that the or other “life” cases. other “death” cases incor- in Count 5 robbery conviction vated (citation Davidson, 121 at 623 judgment rectly refers Count omitted). Instead, requires our review in conviction aggravated rape for the identify an death sen- that we aberrant 5. The incorrectly refers Count Count determining the case is by tence whether trial court case is remanded in consistent plainly lacking circumstances The of these clerical errors. correction in similar cases in which the with those out as death shall be carried sentences of previously imposed. was Id. penalty death day April, 12 th provided by law on the above, reviewing the cases discussed After by ordered this unless otherwise cited, many specifically others not we ap- It authority. proper Court or other opinion that the sentences of are of the Leach, L. defendant Robert pearing that case are not excessive nor death this Jr., are appeal costs of this indigent, disproportionate penalty imposed to the of Tennessee. taxed to the State cases, considering similar both the nature of the crime and the defendant. J„ BIRCH, JR., A. filed a ADOLPHO dissenting opinion. concurring

CONCLUSION An- In accordance with Tennessee Code APPENDIX 39-13-206(c)(l) notated section and the of Criminal (Excerpts from Court decisions, principles adopted prior we Decision) Appeals’ have considered the entire record this THE IN COURT OF CRIMINAL case and conclude that the sentences of APPEALS OF TENNESSEE arbitrarily, imposed death have not been supports jury’s that the evidence find- AT NASHVILLE ing statutory circum- aggravating February 2003 Session proven stances have been the State TENNESSEE v. ROBERT STATE OF doubt, beyond a reasonable that the evi- LEACH, L. JR. supports jury’s finding that the dence aggravating outweigh circumstances from the Criminal Court Appeal beyond circumstances a reason- mitigating County for Davidson doubt, are not able the sentences Wyatt, Judge J. Randall No. 99-D-2508 disproportionate. excessive No. M2001-01421-CCA-R3-DD— reviewed all of the issues We have August Filed they and conclude that do raised Leach, Jr., defendant, to issues Robert L. respect not warrant relief. With of two counts of guilty by found raised in this Court but that were history significant drug prob- nineteen-year-old long Sepulveda, defen- had a the neigh- lems; ninety-five-year-old weapon vic- dant murdered his a on his he did not use beating kicking during a by tim, and her bor the attack for and his victim survived Sepulveda burglary of her home. is distin- several weeks. Sepulveda guishable present case. from the Alderman, murder, felony Ross E. District Public Defend- premeditated two counts of er; murder, Jeffrey and A. DeVasher and C. Dawn aggravated rape, one count of and (on appeal), Dykes and Laura C. aggravated rob- Deaner especially one count of (at trial), Amy and D. Harwell Assistant bery. felony The murder convictions were Defenders, appellant, the Rob- con- Public merged premeditated into the murder Leach, jury sentenced the defen- ert L. Jr. victions. The finding upon dant to death based Summers, Attorney Paul General and G. outweighed aggravating circumstances Fulks, A. Assistant Attor- Reporter; Mark mitigating beyond circumstances rea- General; Johnson, III, Dis- ney Victor S. As to victim Sarah sonable doubt. General; B. Attorney trict and Thomas McBride, jury aggravating found three Thurman, Attorney District Gen- Deputy previ- circumstances: the defendant eral; and Katrin No- Kathy and Morante ously or violent been convicted of one more Miller, Attorneys vak Assistant District felonies; especially hei- the murder was General, appellee, for the Tennes- nous, atrocious, cruel in that it or involved see. physical beyond abuse torture or serious death; and the necessary produce OPINION knowingly committed

murder was TIPTON, Judge. M. JOSEPH committing attempting while or defendant robbery aggravated rape. to commit Background] [Deleted: Factual Poteet, jury found As to victim Jean I. OF EVIDENCE SUFFICIENCY circumstances aggravating the same three [Deleted] circum- aggravating and the additional EVIDENCE II. PHOTOGRAPHIC seventy years victim stance vulnerable the trial age particularly or older or was defendant contends The significant admitting significant handicap due to a discretion court abused its disability, physical or mental. The trial of the deceased victims. photographs three 6L, to consecu- at issue are Exhibits photographs court sentenced the defendant The lying depicts McBride on the twenty-five years for the which Sarah tive sentences of found; 6M, body was which robbery aggra- bed where her aggravated especially the back of close-up view of depicts rape appeal, convictions. In this vated head; 6T, which de- McBride’s relating Sarah raises numerous issues defendant Poteet’s head close-up view of Jean evidence, picts of the eviden- sufficiency to the claims that the and back. The defendant instructions, the consti- tiary rulings, jury of the crime scene photographic evidence tutionality penalty, of the death irrelevant, cumu- and deceased victims was proce- case application capital of certain erroneously lative, highly prejudicial that no harmful error dures. We conclude passion of the admitted to inflame exists, convictions and and we affirm the testimony oral jury. He asserts that remanded, The case should be sentences. adequate- presented by the state diagrams errors though, for correction of clerical as- conveyed to the relevant ly and 6 judgments for Counts 5 which the pects photographs. of the to Counts respectively have been switched 6 and 5. photo- admissibility of relevant and the crime scene J., graphs of victims opinion Joseph delivered M. TiptoN, of the trial Riley the sound discretion court, and within Joe G. which ruling on admissibili- JJ., and his or her judge, joined. Thomas T. Woodall,

63 in relat- evidence of testimonial appeal adequacy on absent ty will not be disturbed jury; the need for to the ing the facts showing of an abuse of that discretion. Carrruthers, 'prima 516, to establish 576-57 the evidence State v. 35 S.W.3d facie defendant’s 953, or to rebut the (Tenn.2000), guilt 121 case of cert. denied 533 U.S. present at 951. In the 2600, (2001); Id. 757 State contentions. 150 L.Ed.2d S.Ct. are (Tenn.1978); case, at issue Banks, 947, photographs all of the v. 564 S.W.2d 949 clear, they signifi- have 797, accurate Bigbee, also State v. see Tran, photographs, value. The (Tenn.1994); evidentiary cant State v. Van 864 807 6L, bodies 465, (Tenn.1993), accurately depict the especially denied 477 cert. S.W.2d Moreover, because 1046, 1577, found. they 114 128 L.Ed.2d as were 511 U.S. S.Ct. (1994). first de- charged with stated the defendant was Supreme As the Court the Carmthers, aggravated rape, gree is to vest murder and the modern trend of those rulings prove state had to the elements judge’s more discretion the trial Carruthers, charge of regard to the admissibility. on 35 S.W.3d at offenses. With 949). Banks, murder, the element of intent (citing degree at first S.W.2d manner and may inferred from the be “any if it ten Evidence is relevant has victim, see id. extent of the attack on the dency to make the existence of fact 950, photo- portrayed the which is consequence that is of to the determination alone was Testimonial evidence graphs. probable proba of the action more less the explain in this case to insufficient than it would be without the evidence.” ble attacks and the extent of the crime scene However, Tenn. R. Evid. 401. relevant on the victims. if “may probative evidence be excluded its argues photo- the substantially outweighed by value is the The defendant Levy’s to Dr. tes- danger prejudice, graphs of unfair confusion of the were cumulative and, therefore, issues, should have been misleading jury.” timony Tenn. R. the R. Evid. Prejudicial under Rule Tenn. Evid. 403. evidence is not ex excluded Carruthers, are photographs cluded as a matter of 35 This court has held law. necessarily rendered inadmissible be- (citing Gentry, at 577 v. 881 not S.W.3d of other evi- they The cause are cumulative (Tenn.Crim.App.1993)). could descriptive words court must still determine the relevance of dence or because State, weigh probative the visual evidence and its be used. Collins In (Tenn.Crim.App.1973). present the against any prejudice. value undue Id. case, to illus- photographs de were used prejudice” The term “undue has been scene, the of the crime tendency suggest undue trate the nature fined as “[a]n bodies, basis, victims’ commonly, positions on an of the improper decision during Levy’s Dr. testimo- though necessarily, an emotional one.” cause of death Banks, not cumulative ny. photographs Fed. were (quoting 564 S.W.2d at 950 note). Levy’s testimony. to Dr. explanatory R.Evid. Banks, argues that because The defendant also supreme gave court extent of the not seek to contest the determining he did guidance

trial courts Levy, Dr. injuries described admissibility photographic of relevant evi- victims’ have been exclud- photographs should A trial court should consider: dence. defen- true that the it be accuracy clarity picture and its ed. While the extent of evidence; not contest picture dant did value as whether the fact found; injuries, he did contest body victims’ depicts the as it was Further, murders committed with intent and the defendant contends that were videotape the was cumulative of the testi- premeditation. evidence, a of the diagram monial crime court, hearing, The trial after allowed scene, photographs and the entered into photographs the at issue to be introduced videotape the and the evidence. While as evidence. The trial court found that the admitted this case other evidence photographs state could introduce the material, have some of the same contained prove the elements the offenses videotape. the it was not error admit probative further found that value of the (holding at Bigbee, See by photographs outweighed was not videotape it error to admit a of the was not danger prejudice. of unfair We con- depicted images it although crime scene clude that the trial court did not abuse its also admit- photographs similar to those of discretion in regard. this ted). forms of evi- Each of the different in this case served differ- dence admitted III. CRIME VIDEOTAPE OF SCENE probative of the ent and were purposes challenging addition to the admission by jury. We issues to be decided trial, photographs of the three at the de- did not abuse conclude that the trial court fendant contends that the trial court com- admitting videotape its discretion by allowing mitted reversible error id.; also into see evidence. See videotape introduction of a of the crime Lee, Anthony Kelvin No. 02C01-9603-CC- basically scene. The defendant advances County, slip op. at Lauderdale arguments respect the same with to this (Tenn.Crim.App. Nov. WL challenged photo- issue as he did with the (Tenn. 1998). 1997), Aug. app. denied graphs: probative value of the video- argues that the Finally, the defendant tape outweighed by danger was value in probative limited videotape had prejudice unfair and it was cumulative of contest the this case because he did not other evidence. iden- nor his manner of the victims’ deaths admissibility The of crime videotapes Although the de- tity perpetrator. as the governed by scenes is the same standards as- two challenge fendant did not these photographs. as that of After a review case, challenge the pects of the he did that its videotape, we do not believe for which he elements of the crimes potential prejudice outweighs proba- for its above, the forth charged. been As set videotape tive value. The is of short dura- and was used videotape was relevant tion. It does not focus on the bodies of the of the crimes establish the elements Instead, goes through victims. it each charged. which he was portrays room of the residence videotape crime of the scene. use TO DISCREDIT IY. EVIDENCE by used the state to establish the elements OF JOSEPH TESTIMONY charge premeditation of intent and for the WALKER Moreover, degree of first murder. [Deleted] videotape was used the state to estab- INSTRUCTION V. SPECIAL JURY especially aggravated lish the elements of THAT ALL ARE HOMICIDES robbery. videotape The admission of the DE- BE PRESUMED TO SECOND was used to establish the elements MURDER GREE charged, as allowed Banks and crimes Banks, requesting filed a motion progeny. its See The defendant all special instruction to murder, a criminal defen- degree de- ond to be second presumed homicides are not to relief. dant is entitled stated: gree murder. The instruction (Tenn. 3, Coulter, 68 v. 67 S.W.3d State established, it a homicide has been Once omitted). (citations Crim.App.2001) in the to be murder second presumed is case, fully, trial court present In the the and the state bears the burden degree, jury accurately the fairly, and instructed premeditation the issue of proof on jury pattern instruction on the law. to first to elevate the offense sufficient carried jury that the state informed the murder. degree of first proving the elements the burden re- The trial court denied the defendant’s beyond a murder degree premeditated jury first de- quest and instructed the on is not The defendant reasonable doubt. in T.P.I. provided as gree murder to relief on this issue. entitled 7.01(b) (6th ed.2001). § OF DORIANNE VI. TESTIMONY right to A defendant has a constitutional FOR CONTEXTUAL BROWN the law. complete charge a and correct BACKGROUND (Tenn.1990), Teel) 236, v. 249 State [Deleted] 1007, 111 rt. denied 498 U.S. S.Ct. ce (1990). However, 571, 112 L.Ed.2d 577 a IMPACT VII. VICTIM EVIDENCE required give trial court is not to a re trial that the The defendant contends if of the quested instruction the substance the by allowing court erred admission general instruction is covered the penalty evidence at the impact victim Zirkle, 874, charge. State v. urges he Specifically, trial. phase of the ruling on a of victim (Tenn.Crim.App.1995). 892 us to find that the introduction right to due impact testimony violated his jury on request similar instruction and United process under the Tennessee murder, degree the of second presumption to right and his be States Constitutions previously this court has stated: punishment cruel and unusual free from acknowledge supreme our court’s [W]e the Eighth Amendment under Brown, v. 836 observation Further, Constitution. United States (Tenn.1992), that “[t]he S.W.2d argues impact that victim testi defendant long recognized law Tennessee has capital sen mony is irrelevant under that once homicide has been estab- [a] established Tenn. tencing structure lished, presumed it is to be murder 39-13-204(g)(l) § and State Code Ann. However, im- degree.” second (Tenn.1998), Nesbit, port presumption of this is that “[t]he 119 S.Ct. cert. denied 526 U.S. proof state bears the burden of on (1999), and should be ex 143 L.Ed.2d ... sufficient premeditation issue of he that Tenn. Specifically, cluded. asserts first-degree offense to mur- elevate the 39-13-204(g)(l) § Ann. directs Code Therefore, when a trial court’s der.” cir jury aggravating once a decides language “presump- charge omits exist, they outweigh cumstances clearly otherwise informs tion” but circumstances, jury “shall” mitigating carries the burden of jury that the State of death. He asserts return a verdict every element of first proving each and Nesbit, jury permitted is under beyond a degree premeditated murder until impact victim evidence consider the aggravating cir doubt and also includes at least one finding reasonable after aggravating and that the see- cumstance exists complete instruction on correct and circumstance(s) any mitigating photographs counters that outweigh The state provide glimpse were relevant to brief beyond circumstances a reasonable doubt. victims, as Therefore, into the lives victim the defendant claims testimony designed to do. impact See properly the time the can consider Nesbit, at 889. The defendant 978 S.W.2d impact testimony, victim the has lost Dicks, 126, v. 615 S.W.2d 128 cites State sentencing its discretion in the defendant. 933, (Tenn.1981), cert. denied 454 U.S. 102 Accordingly, that the defendant contends (1981). 431, 70 L.Ed.2d 240 Howev S.Ct. impact testimony victim has no role under er, Nesbit, 901-02, in at the capital sentencing the current structure portion that of supreme adopted court this and should be excluded. photo that a opinion court’s which held impact Victim evidence has been de- alive was graph of the victim while rele by clared constitutional the United States in proving in chief vant to the state’s case Supreme Tennessee Court the Su- the that the murdered was same person Tennessee, preme Payne Court. v. 501 indictment. Based person named the 808, 827, 2597, U.S. 111 S.Ct. 115 L.Ed.2d supreme court allowed holding, on this the (1991); Nesbit, 978 S.W.2d at 889. We photographs life Car the introduction of impact testimony note that the victim Moreover, ruthers, the at S.W.3d brief, consisting this case was three pro more than nothing photographs did witnesses; unemotional; provid- limited to victims, lives of the into the glimpse vide a ing a into lives of victims glimpse brief Nesbit, 978 S.W.2d at as allowed under Poteet; lim- McBride and Jean Sarah the defendant is that 889. We conclude emotional, by explaining psycho- ited on this issue. entitled to relief logical, physical impact of the victims’ deaths on their families. AND DR. LEVY IX. TESTIMONY OF AT AUTOPSY PHOTOGRAPHS

Furthermore, argument advanced PHASE PENALTY impact the defendant that victim testi- mony is irrelevant and should be excluded trial that contends defendant testify capital Levy under Tennessee’s current sentenc- by allowing court erred Dr. trial and system, rejected by the su- ing during penalty phase has been autopsy Reid, by allowing the introduction preme court. v. See State testimony. Levy’s Dr. (Tenn.2002) photographs during (holding that 282-83 Levy’s Dr. tes- argues The defendant that contradiction between the statute and the should have timony photographs and the inures to the benefit of Nesbit instruction Rule pursuant been excluded to Tennessee defendant). conclude that this is- We cu- was of Evidence as the evidence sue is without merit. In this unfairly prejudicial. mulative and LIFE testimony VIII. PHOTOGRAPHS he asserts that the respect, penalty phase

OF VICTIMS probative little value testimo- Levy’s penalty phase Dr. because introduc- challenges The defendant testimony. ny basically previous his echoed of the victims before photographs tion of during im- they testimony were murdered the victim responds The state photo- pact testimony. photographs He asserts Levy autopsy Dr. and the and, in phase prove the alterna- graphs penalty were irrelevant were needed at the tive, aggravating circum- probative asserts that their value was the existence of the “especially were effect. stance that the murders outweighed by prejudicial their State, heinous, atrocious, Terry Court. [they] preme or cruel See (Tenn.2001), cert. de 169-71 physical involved or serious torture abuse 1023, 122 nied 534 S.Ct. U.S. beyond necessary produce death.” (2001). 13—204(i)(5). L.Ed.2d 428 This issue without § In his Tenn.Code Ann. 39— merit. Levy nature testimony, Dr. described the injuries and extent of the sustained XL TESTS” USE OF “RELIGIOUS respective

victims their deaths. before DIRE DURING YOIR testimony highly This relevant that the The defendant contends remov- probative of the existence torture and jurors al for cause those who could not abuse, necessary serious physical elements pen- commit to of the death imposition the heinous, of the or cru “especially atrocious philo- or alty religious, based moral upon aggravating el” circumstance. As the I, sophical violates article section 6 views asserts, although autopsy photo state the Tennessee Constitution. The su- graphs may unpleasant, they have been holding court’s preme court affirmed this Levy’s testimony were of Dr. illustrative Reid, exclusion in State v. highly relevant to the extent of abuse jurors prospective by a trial court because Moreover, by endured the victims. in a religious of their moral based reluctance capital sentencing hearing, evidence is not error. 91 impose the death “probative has pun value on the issue of regard, poten- at “In this S.W.3d 289-90. regardless ishment may be received of its jurors cause tial are removed for not be- admissibility under the rules evidence.” opinion cause of their or affilia- religious 39-18-204(e); § Tenn.Code Ann. see State jurors tion but are unable to because the Hall, 593, (Tenn.1999), v. 602 proceedings impartially per- view the cert. 121 denied 531 U.S. S.Ct. 148 form their in accordance with the duties (2000) (holding L.Ed.2d 57 that autopsy juror’s Questioning oath.” at 290. of a Id. in were admissible photographs capital juror penalty with death regard to the sentencing hearing sentencing under the religious test. does not amount to a Id. notwithstanding statute Rules 401 and 403 (citing Sundquist, Wolf Evidence). of the Rules of Tennessee We app. denied (Tenn.Ct.App.1997), conclude that the trial court did not abuse (Tenn.1997)). The defendant is enti- allowing Levy its in Dr. discretion to testi tled to relief on this issue. fy sentencing hearing at the allowing in the introduction of the autopsy photo XII. THE OF FELONY USE graphs. MURDER AGGRAVATING

CIRCUMSTANCE

X. CONSTITUTIONALITY OF argues The defendant trial THE DEATH TENNESSEE court should not have allowed state PENALTY STATUTE upon pursue penalty the death based The asserts the trial defendant felony aggravating circumstance murder failing court to declare Tennes- erred felony he mur- because was convicted see’s statute penalty death unconstitution- aggravating murder cir- felony der. All objections al. to the by of the constitu- upon pros- cumstance be relied tionality penalty of the death statute that sentence seeking ecution a death when of both guilty pre- has asserted have re- the defendant is found defendant been and murder peatedly rejected by the meditated murder Tennessee Su- robbery, trial the verbatim perpetration of instructed the with defi- merges prescribed by supreme court the dual convictions into one nitions court heinous, See, for the terms atrocious and cruel. degree conviction of first murder. Reid, 306; Accordingly, aggravating- the use of the e.g., S.W.8d Carter v. State, (Tenn.1997). proper. factor was The defendant recognizes that other cases XIV.MOTION TO STRIKE NOTICE upheld practice by merging have this INTENT TO SEEK DEATH OF premeditated felony murder convic- AP- PENALTY PURSUANT TO However, tions. practice he claims the JERSEY PRENDIV. NEW principles death-sentencing “violates the Supreme as outlined the Tennessee [Deleted] recog- Court Middlebrooks.” He also XV.PROPORTIONALITY REVIEW (i)(7) language aggra- nizes that the [Deleted] vating circumstance has been amended CONCLUSION adding the “knowing” simply element. He § Ann. Pursuant to Tenn.Code 39—13— requests that adopt position contrary we 206(c)(l)(A-D), we have considered the en- currently by that held the courts of this tire record conclude that the sentence and may state. This we not do. imposed arbitrarily,

of death has not been HEINOUS, THE XIII.USE OF ATRO- jury’s that the find- supports the evidence CIOUS, OR CRUEL ing statutory aggravating AGGRAVA- of the circum- stances, supports TING CIRCUMSTANCE that the evidence the jury’s circum- finding aggravating that the that the The defendant also contends outweigh mitigating circum- stances the prohibited state should have been from doubt, beyond a stances reasonable and “heinous, using the atrocious or cruel” disproportionate. that the sentence is not statutory aggravating circumstance. He have all We also reviewed issues raised argues that language aggrava- the of the and have no the defendant found revers- ting circumstance and “overly is broad However, we the ible error. note sufficiently jury’s fails to channel the dis- judgment referring actually to Count 5 is meaningfully cretion and narrow the class aggravated rape for the conviction penalty eligible of death defendants.” The referring 6 and that judgment Count the consistently Supreme Tennessee Court has actually especially Count 6 is for the upheld constitutionality of the “hei- aggravated robbery conviction Count nous, statutory aggra atrocious cruel” The case should be remanded in order State, vating Terry v. circumstance. See trial these clerical court correct (Tenn.2001), 46 S.W.3d 147 cert. denied respects, judg- In all other errors. 1023, 553, 534 122 U.S. S.Ct. 151 L.Ed.2d of conviction ments are affirmed. (2001); Middlebrooks, 428 State v. 995 BIRCH, JR., J., ADOLPHO A. 550, (Tenn.1999); 555-56 v. S.W.2d State concurring dissenting. Blanton, 269, (Tenn.1998), 975 S.W.2d 280 1180, 1118, cert. denied 525 U.S. 119 S.Ct. majori- I concur in the conclusion of the (1999). Moreover, 143 L.Ed.2d 113 be af- ty that Leach’s convictions should supreme court has defined each term ac death, firmed. As to the sentences cording ordinary to its and natural mean however, my I views continue to adhere Williams, ing. See State v. 690 S.W.2d that re- comparative proportionality (Tenn.1985). 517, 527-30 The trial court currently embraced protocol view

69 2000) (Birch, J., dissent- concurring and majority inadequate to shield defendants Bland, at 679 S.W.2d v. 958 ing); State arbitrary disproportionate from the As (Birch, J., dissenting). concurring Tenn. penalty. death See imposition of the discussed, (1995 I 39-13-206(c)(1)(D) believe previously § Ann. Code pro- the current with my problems three basic repeatedly expressed I Supp.). have (1) pro- analysis are that: portionality since protocol with the current displeasure (2) overbroad,1 pool Bland, test is portionality adoption State v. the time of its inade- (Tenn.1997). comparison is used for v. of cases 651 See State 958 S.W.2d (3) (Tenn.2004) subjective.3 review is too Holton, 845, quate,2 and 126 S.W.3d view, undermine the these flaws (Birch, J., dissenting); my concurring and proportionality Davidson, 600, the current reliability of 629-36 v. S.W.3d State Godsey, v. 60 S.W.3d (Tenn.2003) (Birch, J., State dissenting); protocol. v. See State (Tenn. (Birch, J., concurring and dis- 895, Carter, at 793-800 910-11 S.W.3d Reid, respectfully I dis- 2003) Accordingly, (Birch, J., senting). dissenting); State v. majority (Tenn.2002) (Birch, portion 247, sent from 288-89 91 S.W.3d affirming imposition J., dissenting); opinion State v. concurring (Tenn.2002) Austin, 447, case. 467-68 in this penalty death Stevens, (Birch, J., dissenting); v. State (Tenn.2002) J., (Birch,

S.W.3d v. concurring dissenting); State (Tenn. McKinney, 74 320-22 2002) J., (Birch, concurring and dissent Bane,

ing); v. 431-32 Denise BONE (Tenn.2001) (Birch, J., concurring and dis Stout, v. 46 senting); State S.W.3d CORPORATION. SATURN (Tenn.2001) (Birch, J., concurring and 147, State, dissenting); Terry v. 46 S.W.3d Tennessee, Supreme Court (Tenn.2001) (Birch, J., dissenting); at Nashville. (Tenn. Sims, 1, 23-24 v. State 7, 2004 Session. Oct. 2001) (Birch, J., concurring and dissent- Nov. 2004. Keen, 233-34 ing); State v. 31 S.W.3d (Tenn.2000) (Birch, J., dissenting); (Tenn.

Chalmers, 28 S.W.3d 920-25 view, excluding comparison my urged adopting protocol In from in which 1. I have group in which the State did not factually of cases compared each case would be capital penalty, or in which no the death seek in which either a life sentence or similar cases held, sentencing hearing frustrates imposed capital punishment was to determine proportionality meaningful comparison for with the case is more consistent whether Bland, 958 S.W.2d purposes. See "death” cases. See State v. "life” cases or J., (Birch, dissenting). J., (Birch, con McKinney, 74 S.W.3d at 321 proto dissenting). curring The current my concurring/dissenting finding case 3. As I stated in proportionality if the col allows a scope Godsey, opinion "[t]he in State v. existing penalty cases. death is similar majority appears to words, employed by the only analysis disproportionate if a case is other expand- lacking amorphous plainly be rather review "is the case under undefined — analysis shifting contracting, as the ing, those in similar consistent with circumstances case to case.” penalty been moves from death has cases in which the J., Bland, (em (Tenn.2001)(Birch, concurring and at 665 imposed.” added). dissenting). phasis

Case Details

Case Name: State v. Leach

Court Name: Tennessee Supreme Court

Date Published: Sep 8, 2004

Citation: 148 S.W.3d 42

Docket Number: M2001-01421-SC-DDT-DD

Court Abbreviation: Tenn.