State v. Melson

Tennessee, Plaintiff-Appellee, STATE of MELSON,

Hugh Defendant-Appellant. W. Tennessee,

Supreme Court

at Jackson.

Aug. 1982.

345 Gen., Atty. Dist.

George Hymers, W. Stegall, James and R. Asst. G. Woodall C. Murchison, Gen., Sp. Dist. Attys. Franklin Leech, Jr., Prosecutor, Jackson, M. William Smith, Atty. Gen., W. Asst. Atty. Gordon Gen., Nashville, plaintiff-appellee. for Middlebrooks, William H. Mary Jo Brown, Jackson, defendant-appellant. for OPINION DROWOTA, Justice. case, appeals Hugh W. Melson

In this of first to this Court his conviction directly death degree murder and the sentence numerous imposed jury. He raises by the but, careful after appeal; issues in this law, we and the the entire record review of merit. We to be without find these issues sen- the conviction therefore affirm tence. killing for which shocking tragic April on

Melson was convicted occurred Lawrence, 1980. The victim Barbara Lawrence, a sizea- who owned wife of Jack Melson ble farm near Jackson. the Law- and had worked for farm foreman rences years. He had family gas known the remove the siphoning cans and hoses boyhood, since his as his father had from truck. also his worked for them. Although Mr. Lawrence Early morning question, on Jack testified that Melson problems had had his son, Dick, Lawrence and his who also lived getting along people, with he had been a farm, with family his own on the left home satisfactory employee and no one had any fishing. Melson was at spend day complaints real prior about his behavior. plumbing the main house to do some re- He had a wife family and lived on the home, pairs. Mrs. Lawrence was at place. Lawrence maid, Lewis, their Mattie arrived at about 7:45. She testified that Melson was work- OF THE

SUFFICIENCY EVIDENCE heater, ing hot water which was in The first issue which we shall ad utility room off the kitchen. She was dress is challenge to the sufficien nearby; point, the den and at one cy of the in, evidence on opened which he was convict came the closet where the switch argues ed. He was, that the contrary gasoline verdict is tank and went outside. evidence; to the law in, and the and that the Barbara Lawrence came asked who had closet, evidence preponderates opened squatted of his favor inno down be- against cence and guilt. hind the bar. When Melson came Since he stands back crime, closet, inside convicted of this and went toward the Mrs. he has lost presumption up, Lawrence stood went outside to Dick innocence which he carried truck, Grace, at trial. Lawrence’s and returned to the 474, 476 State v. 493 S.W.2d house,' (Tenn.1973). telling Melson that he had taken All conflicts in testimony (in cans, gas truck) some in the bed of the must be resolved in favor of the State. for himself. He Hatchett, denied this. She State v. reminded 560 S.W.2d him that her him husband told that he (Tenn.1978); Townsend, State v. 525 S.W.2d week, up could fill once and wrote the (Tenn.1975). After viewing the log going amount in the book as to Melson. evidence in light most favorable to the He any told her that he didn’t want her we must affirm the conviction if gas and told her not to write it They down. rational trier of fact could have found de both went outside and had some words. fendant guilty beyond a reasonable doubt. house, When she came back to the she was Jackson v. Virginia, U.S. S.Ct. running, eyes. and had tears in her (1979); L.Ed.2d 13(e). TRAP later, A little while Mrs. Lawrence tele- Jack Lawrence testified that Lawrence, phoned Kimba wife of her son prior months to the killing, prop too much Dick. She asked Kimba to do an errand (a erty tank, saws, ladders, chemical chain planning which she had been to do. She etc.) had been missing from the farm. stated that upset, telling she was Kimba Worst of all was gasoline. theft of During person the reason and the name of the who winter, Lawrence attempt could not even to upset. had caused her to be stated that She keep gasoline at the farm. When the she did not want to leave the house. Kim- spring arrived, of 1980 gasoline and was ba went to the Jack Lawrence house at again work, needed for farm Lawrence had about 9:00 A.M. and saw Mrs. Lawrence. the switch operated gasoline tank moved to a 11:00, closet inside the house. He At about Mrs. Lawrence and Jack called all the together farm workers and Lawrence’s met at a mother Kimba restau- log told them that a kept would be of all they eating, rant for lunch. While were gasoline used, being personal even for pur Mrs. Lawrence told Kimba that the knot poses, and even himself and his sons. finally leaving was her stomach. The elder He had told Melson that he put could a tank present Mrs. Lawrence was but did not hear full week, in his truck every but lunch, Melson that conversation. After all three said that he would not need until “com women rode in Mrs. Lawrence’s car to look Melson, bine then, time.” Lawrence house, told to for someone’s then returned to store, Jones, restaurant, proprietress Mary where her own got Kimba car way. and went that Melson came and made the her stated 2:30, purchase remaining only at about 12:15, At about Mattie Lewis locked her- at When the two arrived back briefly. walking self out the house. After to house, let Melson Shanklin out Shanklin’s Lawrence, son, Jr., home of another to Jack on, he saying go and had to and drove be, key might see where a to she returned job.” do other little “his sitting house and was outside when 3:00, up Melson in his if in his drove truck. She asked At about Melson returned him, responded Shanklin’s, he had and he out and key, angrily, truck to called to asking inside, if she had not “heard Miss Barbara he most of his came where drank raising gas.” hell with him “He that he “some about beer. Shanklin said was tired, said that Miss Barbara couldn’t tell Mr. seemed more but different” —he Jack and Mr. and coming daughter have Jack back there out breath. Shanklin’s raising hell with him.” Melson Ingram He also asked Mat- Dora came back. When he un- approaching, appeared tie Lewis tell Mrs. that he had them to Lawrence heard looked. easy, up, their ladder. turned around and got aluminum P.M., Law- Mrs. waited another fifteen or A minutes after 3:00 Lewis few minutes, Jon, school twenty driving high own son who was her rences’ third road, student, that the car down Lawrence He noticed when Barbara arrived home. unlocked, by. both door which was unusual. They drove drove to home snack, mother, get Jack went to Bar- kitchen Lawrence’s then When he went utility bara’s in her Mrs. Lewis he his dead on the house car. After mother discovered Lawrence, discovering worked He Kimba longer, for awhile room floor. ran to water, nearby, still just there was no hot Mrs. Lawrence who had arrived at her house car, they Depu- took her her office. separat- back to who called the sheriff’s ed. ties about 3:30 and closed began arriving at killing place. off area took where Meanwhile, Shanklin, according Henry deputies told the immediately Kimba a retired hand lived farm who still Melson, Mrs. Lawrence’s altercation with place, arrived to repair at his house off in search of him. some officers went the roof about A relative of 1:00. Shanklin, sitting him inside Ingram, eventually was also there. In- found Jerry They 4:10 P.M. The gram and to work house at about giving Shanklin went Shanklin’s outside, and him to come putting rings shots noses of officers asked “investigating hogs. they him that two When Melson finished on the told him Law- roof, Ingram an took helped hogs. They he with the then incident.” wife, Dora, of their car. with back seat left and Shanklin’s rence house arrived, many people were there daughter. they When about, were official cars and there milling got Shanklin and Melson into Melson’s of- The parked and ambulance outside. an truck and to a on the main road drove store rights, Melson his Miranda ficers read buy quart to of beer. When two bottles he under- affirmatively he indicated which road, they out saw were almost to the Then, the officers noticed stood. one of past. Mrs. Lawrence drive to said did not spots clothing, on which of blood his Shanklin that he was in a world of trouble faded; and asked appear dry, darkened or because Mrs. Barbara Lawrence saw him it on gotten him it. He said that about “ah, gasoline. taking responded, Shanklin hogs.” He was “shooting him when he was trouble,” ain’t in no but Melson re- you time, but interrogated further peated he was. Mattie Lewis testified county jail. was taken driving away that as from the elder she was home, time, inquired to he never way During Mrs. her some- the entire Lawrence’s being house, why he was happened a or she saw Melson and what had else’s surprise, mystifica- her truck. He never showed passenger behind in Melson’s held. tion, these, curiosity. or He All of quiet cooper- except syringe, was and wrench. ative. had what could have been blood on them. (We syringe surmise that was taken The sheriff’s deputies and local medical story getting about because Melson’s scene, examiner described the death giving hogs.) while shots to blood on him pictures diagrams were introduced into was shape peen The of the ball hammer lying evidence. Mrs. Lawrence face was suf- consistent with the wounds and bruises utility down on the room floor with her feet Lawrence. fered Mrs. near lying large the kitchen. was a She pool of blood from her head running hammer, Also on the imbedded found through and into the kitchen. There was a blood, suspected substance to be great splattered deal of blood around the hair. Found on Mrs. Lawrence’s blouse was room, on the floor and several feet up Samples another hair. of hair were taken walls. Particles of brain and skull on from FBI Melson and Mrs. Lawrence. An the floor. Mrs. Lawrence initial ex- agent testified about hair characteristics amination was gaping found to have a hole that, matching. He stated when the skull, in the back of her through which twenty or so characteristics of a hair match portions of her brain extruded. sample, a known there is chance only once 4,500 5,000 out of or that the unknown hair At hospital, complete more exami- individual; further, came from a different nation was done. Her skull was broken and person the unknown have had to be would pieces there were of cranium inside her place in the same person. as the known head. injuries There were bruises and exactly The hair on Mrs. Lawrence’s blouse face, eye, neck and chin. There were samples matched the from head. also trauma to her arms and a broken fin- The hair on the hammer exactly matched ger, which were consistent with defensive hair Making from Mrs. Lawrence’s head. injuries which one would sustain while even that the hair on hammer likely less fending off blows. The conclusion was that anyone had come from else was the fact injuries had most likely been caused it; that such hair had no root on it had been blows from a blunt instrument. The time broken or torn off in the middle of the of death was at first estimated to be about shaft, showing that it had come out as the P.M., 2:00 but was soon revised to 3:00 P.M. being applied. result of force None the blood had begun dry when the officers arrived at 3:30. agent, expert Another FBI an in forensic serology, testified about the nature of the body was then Memphis sent to for a shirt, clothing (cap, substance on Melson’s complete autopsy. The official cause of pants boots) objects and the from death multiple blunt trauma process by truck. He described the head and weapon neck. The firm was a he clothing, identified blood on the surfaces, instrument with different one be- Further, hammer the wrench. on the ing circular. There approximate- had been hammer, clothing and but not on the ly head, 15-30 blows to the with additional wrench, enough there was blood to deter- ones to the arms and hands. There would agent mine that it found was human. have been applied considerable force with hogs. the blood did not come from repeated area, blows in the same in order to enough any spot There was not blood in skull, drive a hole of this magnitude in the identify type grouping. the blood even by strong assailant. 10th, very important A witness was Mr. Her- Early on the evening of the Mel- MacDonnell, was, simplify son’s bert L. who to impounded truck was in and sealed occupation, expert the his an in the character of jail. basement of the A county warrant afternoon, types was issued the various of blood stains. He examined next and the truck clothing was searched. Melson’s after the FBI had Recovered were some deter- cloth; pieces and, of syringe; a inside a tool with blood. mined it to be stained human box, peen a ball tiny spots hammer and a crescent He found over 550 of blood on

350 shirt, VALIDITY OF WARRANTLESS shirt and On the the blood pants.

the ARREST the front and right was concentrated on spattered was all over right forearm. It Law- the at the When officers arrived was blood the front of the trousers. There to response home the call about rence flap Lawrence, on right pocket on of the conver- finding they the underside Mrs. had a shirt, daughter-in- with right the Melson’s side sation Mrs. Lawrence’s showing that law, them of Kimba Kimba told This Lawrence. motion blood hit him. was in when the earlier which she had the discussions had right the raising with a of was consistent a result day Mrs. Lawrence. As with very The have to be arm. shirt would had to where report, of this the officers went blood, order for close to the source of the home, time —at the on Melson was at the spot produced a to have been there. farm, farm- the Lawrence of the retired was on spot There also a the back hand, Henry him into They took Shanklin. shirt, right over the shoulder or shoulder him, him custody, and took handcuffed blade area. was with blood This consistent Lawrence There car back the house. off arm dripping weapon right the spots looked of blood they noticed what like was raised over the shoulder. There was him, formally arrested clothing on his shirt, also a stain was made on the which him All of this took advising rights. of his wiping. opinion, In the outline expert his Mrs. Law- within about an hour of place of the hammer was reflected in the outline body being found. rence’s of this stain. warrant, was we there no Since the left spattered Some stains were on pass validity of arrest upon must boot, of brim right side of on the officer to permitting the statute an under cap. felony a arrest when make warrantless he reasonable been committed and has has MaeDonnell an clear ex- gave extremely the arres- to believe that probable or cause demonstration, by a planation, accompanied 40- felony. TCA § tee committed drop typical difference between 803(3). It is cause probable conceded blood and clothes. spray mere West v. suspicion, must be more than fine which very droplets The latter were State, 178, (1968), 425 602 Tenn. S.W.2d not without some produced could have been certainty, neither it be absolute but must kind of to overcome the surface energy State, (Tenn.Cr.App. v. Grey drop of a sized of blood. tension normal con 1976). probable cause Reasonable is, some which applied That force had been a reason grounds which would lead sists of drops to The pelletize. had caused the person that the arrested able man believe re- present have droplets number would State, felony, guilty Davis was just a few quired impacts, several (1969). 297, Tenn.Cr.App. 453 S.W.2d medium spots blows. resulted from Davis, from Jones quoted we second, blows, velocity per about 25 feet (1930), wherein 161 Tenn. 33 S.W.2d beatings force consistent with was was stated: stabbings. The entire scenario Ohio, “In 379 U.S. Beck v. State when a happen consistent with what would (1964), the 13 L.Ed.2d 142 85 S.Ct. a blunt in- repeatedly by head was struck stated: Supreme] Court States [United strument. ‘Whether that arrest was constitution- upon foregoing Based circumstantial whether, depends valid ... ally evidence, holding we hesitancy made, have no arrest moment was suffi- against that the evidence it— cause to make probable officers had support degree first murder cient moment the facts whether at that beyond knowledge doubt. conviction reasonable within their circumstances trust- reasonably favor of preponderate evidence does not and of which worthy information were sufficient against guilt. his innocence prudent warrant a believing man in have been verified on the face war- of the the petitioner had committed ... an of- (3) properly rant. That it was not exe- ” fense.’ (4) cuted. That the evidence seized was (5) beyond scope Any of the warrant. 453 S.W.2d at 440. presented hearing. other reason at the oral “In cause, dealing probable with probabilities. deals with These are not 10, On filed a Memo- October defendant technical; they are practi- the factual and randum on Suppress Motion to Evidence. cal considerations of everyday life on which purport This did not Septem- amend the prudent men, reasonable and legal not tech- Motion, ber 26 but some of the issues ar- nicians, Draper States, act. v. United 358 gued in the Memorandum were different 307, U.S. 79 S.Ct. 3 L.Ed.2d 327.” grounds from the in the Motion. New Jefferson, State v. S.W.2d grounds (1) were: That the warrant was (Tenn.1975). misrepresenta- issued based reckless

We hold that the trial court tion issuing of the affiant officer. entirely correct ruling (2) probable The affidavit did not establish a time cause existed, for Melson’s arrest had at the (3) reference many of the facts stated. time they took him custody into at Shank- The provide affidavit did not a nexus be- lin’s house on the basis of what Kimba tween the crime and the truck. On the related; Lawrence had certainly after hand, ground other in the Motion that they observed what was apparently blood the warrant was properly not executed was garments in view quantities of the abandoned; apparently it was never men- blood which had been shed at the murder again. tioned Therefore, scene. the evidence taken from Stapled to the October 10 Memorandum Melson incident to the cap, arrest —his shirt photocopy was a of the search warrant. and trousers and boots —was admissible at Thus, place the record in which trial. This issue is without merit. the warrant appears is as an attachment support memorandum in aof motion. It VALIDITY OF SEARCH WARRANT is not referred to in the memorandum as Defendant attacks the validity of being incorporated therein. It was not in- the search warrant issued to authorize the troduced as evidence at the suppression truck, search of his which was retrieved hearing. Despite provisions of TRAP from Henry early Shanklin’s residence 24 abolishing the distinction between the the evening murder, of the police towed to record, bill exceptions and the technical headquarters, there, and sealed not being we say must the manner in which the entered until after the issuance of the war placed warrant was in the record falls short rant. This place took at 1:55 P.M. the next of what is needed in order for it to be day, April 1980. reviewable on appeal. Taylor, Krause v. We have problems serious reviewing (Tenn.1979). the merits of this argument. Septem- On closing arguments of the defense and 26, 1980, ber defendant filed a Motion to suppression hearing State at the Suppress Evidence and Return Property, transcribed, so we cannot tell what disputing both the warrantless arrest of grounds pressed the defense at that point. defendant, which we already have dealt We must base our with, solely upon discussion and the validity of the search war- appears transcript. what The evi- rant. The language grounds in sup- hearing dence at the toward port of the directed Motion is ambiguous, but appear establishing timing and the to be of events essentially (1) as follows: That visibility clothing. there was of blood on Melson’s De- probable no cause to issue the warrant, justification and no for a warrant- fense counsel commented that these facts (2) less search. memorandum, That the information on were shown in her but coun- which the warrant was issued could not sel wanted the court to hear from the wit- that Melson was seen in truck immedi- expressly

nesses themselves. The court his ately stated his the was the estimated time of death. conclusion that defense before by This is defend- basing challenge ground its on reliable source admitted entire the Lewis, Lawrences’ ant Mattie the that the warrant misstated to be affidavit and of maid. had locked herself out the that agreed the true facts. Defense counsel She sitting when Melson house and was outside was correct. Conse- the court’s conclusion hailed him to up drove in his truck. She only ground this addressed quently, was the men- key, angrily if he ask he had overruling the the motion to by court in Lawrence argument with Mrs. tioned the suppress warrant. morning. Mrs. did later see that Lewis the Assuming that warrant is arguendo (Mrs. testified Mrs. alive. Lewis Lawrence record, misrepresenta- the “reckless and some- at she had seen Melson trial that only the which ground tion” should be one Law- Mrs. one in Melson’s truck after else However, we review. we shall address the her car rence her to where was had driven (The appeal. other issues raised in this the authori- parked. is unclear whether It any argu- did include in its brief State ties when warrant was knew this the issue, upon ment the relying merits of this case, “immedi- obtained.) any the word entirely upon that its assertion the warrant than, ately” may precise have been less properly is not in record and thus not the while.” “shortly” or “a little example, reviewable.) any impreci- trial court held that Since the in Misrepresentations Reckless Affidavit statement sion amount a false did not validity the Defendant attacks made, the issue we shall resolve recklessly asserting that the by the search warrant holding. do otherwise of his To favor warrant affidavit on of which the the basis overly would make fine distinctions. be to misrepresen was issued contained reckless for Facts Stated Time Reference Under tations material facts. affidavit to time in the References Little, (Tenn.1978), this is 560 S.W.2d 403 to in the warrant relate supporting search may a warrant be ground which previous received within the formation invalidated. hours, is, April that twenty-four case, court in this at the trial although argues 1980. that the Defendant hearing, of the suppression specifically close the at such affiant received information that no found there had been false state time, such infor comprised facts which the intentionally recklessly either ments have taken at place mation could time. made do not that affiant. We find It that Melson clear from affidavit against the evidence preponderates April he was in told Shanklin on 10 that “a holding. court’s trouble,” Bobby” heap because “Miss had Defendant the affidavit argues gasoline; and that he caught stealing him at Henry states he left Shanklin Thus, some to tend to business. 2:00 half an around and returned about uncer- only arguably which are references however, says, hour. He combined and Mel- Barbara Lawrence tain are when Jones, testimony Mary who Shanklin and stealing argument about son had had beer, that he left sold him showed Lawrence gasoline, and when Kimba at There is no indica- about 2:45. Shanklin argument. Barbara learned from Mary talked to tion officers had This sufficient to invalidate is not given. at the affidavit was Jones time the warrant, clear that the search because it is clock, Shanklin, As Mr. he had no was mind near present incident time, vague telling very about murder, upon what he based time of limited version of the facts available We hold that the affidavit told Shanklin. time of the affidavit. question the ille- a time allegedly during The second reckless statement established] to make it gal activity was made “a source” who said occurred so as reliable (1976), L.Ed.2d 627 appear magistrate illegal Armstrong (Tenn.Cr.App.1976). occurrence is not In An- too remote to establish 548 S.W.2d 334 dresen, seized files from probable applica- cause at the authorities offices time of the lawyer they probable of a cause to tion search warrant.... [the] believe in a land had committed fraud is rigid specific no rule or lan- [T]here The in that case con- transaction. warrant guage required to establish the time ele- items, long particular tained a list of ment. phrase, “together then included the with McCormick, fruits, other instrumentalities and evidence (Tenn.Cr.App.1979). of crime at this unknown.” The [time] Specificity Description Property of of phrase held this be in Court must read qf be Seized of items re- description context lating question. to the land transaction in description The in the warrant of gener- The warrant thus did not authorize a property to be searched for and seized exploratory al search sufficiently but limit- is, object, knife, “a blunt object capable authority giving ed the while search strike, stab, cut, being of used to penetrate, officers needed discretion. paraphernalia and other pertaining to this incident,” contained in the described vehi Armstrong, we do not have the lan- cle. Defendant argues description warrant, that this guage contained in the but there is not sufficiently specific and thus autho was premises drug a search of where a general rizes a emphasizes search. He selling operation allegedly being words, “any paraphernalia,” objected other to the sei- ig while carried on. Defendant checks, documents, noring words, zure modifying limiting personal of bank “pertaining drug paraphernalia to this letters and objects they incident.” The because removed from were not the truck were: described in the warrant. The peen a ball hammer, wrench, shirt, Appeals Court of Criminal held that a crescent a a cou “[t]he ple apparent. relevance of the evidence seized is rags, piece rug syringe. and a The identifying personal bank and docu- The authorities could precisely not know ments establishing proof were relevant what pertaining evidence to the Lawrence possession premises ultimately of the murder would be in the truck until drugs. drug paraphernalia went searched it. Obviously, there could well proof drugs kept on the have been evidence therein other than the premises. properly All evidence was potential weapon. murder Certainly, seized.” 548 S.W.2d at 336. would be reasonable to anticipate that there argument We hold this is without might appear be items which would to have merit. them, blood on in view of the quantities of blood the death scene and the blood Defendant makes another related spattered garments all over the in which argument: requests the affidavit au the defendant was arrested. When Melson any thority to search box or container was arrested and rights, read his and then truck, specifi but the warrant does not was asked why all the blood was on his cally such box or It au include container.

clothing, explained presence he its by say- However, thorizes search of “the truck.” ing giving that he had been shots to some the outside of the warrant —that which hogs. Melson’s own statements made the would when the show warrant was folded syringe relevant. says and served — We find that cases cited defend- STATE OF TENNESSEE ant, holding search warrants to be over- broad, distinguishable are from the case at VS. Rather, bar. analogous this case is to fact HUGH W. MELSON situations such as those in Andresen v.

Maryland, 427 U.S. Pickup S.Ct. 1974 Green Ford Truck oped type License 7J469A between the No. containers informant whose therein, used the type information was and boxes found therein. referred to Lt. Jowers’ affi- informant inescapable conclusion present davit. What we have case is omission of from “boxes and containers” “citizen-informant,” or “infor- so-called merely the warrant was inadvertent. The mant not milieu.” The from criminal emphasis should be whether “neu- reliability and the infor- of such informants proper- magistrate tral and could detached” they provide judged mation are cause, which ly probable have we found typical than different standard that of hold herein that he could. Obvi- elsewhere “tipster.” or criminal informant were in ously any boxes and containers the and state have rec- Many federal courts magistrate. minds of the affiant and the ognized difference between the inherent The affiant attempting was not to deceive the types the two of informants. As Fifth anyone. approach A commonsense would Appeals Court of noted in United Circuit dictate that the warrant was meant au- 1972): Bell, (5th v. 457 F.2d 1231 Cir. States the thorize search of the truck’s contents. requiring showing The rationale behind Also, repeat we that no evidence was reliability prevent of is to credibility suppression on at presented point this the infor- upon searches an unknown based hearing. argument We hold that this is may anything mant’s not reflect tip that without merit. irresponsible more rumor than idle or Crediting Hearsay Basis in for Affidavit Thus, conjecture. without the establish- Evidence Therein Contained reliability, of probability ment of The warrant to search Melson’s truck was magistrate” “neutral and detached could upon issued James Jow- the affidavit of Lt. probative not assess the value adequately Depart- County ers of the Madison Sheriff’s as tip exercising judgment of the his ment. sources of the information con- Many probable of cause. existence tained in are follows: Kim- the affidavit as intimately are involved with informants Lawrence, daughter-in-law ba B. of Mrs. persons upon and with the informed Lawrence; Lawrence, son; victim’s Jon hand, this circum- illegal conduct observation; Henry personal affiant’s credibility. stance also affect their could Shanklin, employee Lee retired of farm present of is None these considerations husband; County the victim’s the Assistant eyewitness situation such as was Examiner; Medical and “a source.” reliable present observers are seldom here. Such involved with the miscreants that, although argues hear by definition are Eyewitnesses crime. say may provide finding basis for a of rumor, they along idle for passing not a search probable upon cause to issue the victims of the crime have either been warrant, contain a the affidavit must also of portion or have seen some it. otherwise crediting hearsay. substantial for basis magistrate” A “neutral and detached nothing He contends that there is val- probative could assess the adequately affidavit to show that the above-listed be- information eyewitness’s ue of an or that sources information were credible cause, accepted if it is reasonable was reliable. Melson cites the information true, magistrate must believe including, chronologically, the line of cases knowledge. upon is based first-hand Texas, 108, Aguilar v. 378 84 S.Ct. U.S. Spi- Aguilar Thus we conclude 1509, (1964); v. Spinelli 12 723 L.Ed.2d to the nelli are limited requirements 584, States, 410, 89 21 United 393 U.S. S.Ct. only. informant situation [criminal] (1969); L.Ed.2d and United States v. 637 2075, 573, Harris, 403 U.S. S.Ct. Id. at 1238-1239. (1971).

L.Ed.2d 723 Rollins, It was States held in United denied, (2nd 1975), cert. cases 522 F.2d Cir. upon this line of is reliance 1122, 47 L.Ed.2d has devel- 424 U.S. 96 S.Ct. misplaced. A clear distinction (1976), affiant, given that the fact come known that information even if informant his personal based aspects corroborate innocent observation is a reliable basis his conclu- story.” sion true. The statements are case Id. at 164-165. addressed arguments also the defendant’s challenged The search in United warrant that the affidavit therein “fails to meet the (7th Unger, 469 F.2d 1283 Cir. States requirement Aguilar second there 1972), denied, 411 cert. U.S. S.Ct. be some showing of the trustworthiness of did (1973), specifi 36 L.Ed.2d 313 himself,” the informant 522 F.2d at 164. cally reliability informant, of the allege the Some the court’s in holding statements a citizen who had done work defendant’s argument this without were: merit However, premises. the court held that the recognized We have previously that the specific affidavit contained statements of language in Aguilar Spinelli was ad- fact. dressed to the problem professional allegations complainant are informers, case, In this Wil- [citation]. not self does it serving appear nor liams paid was not an anonymous inform- accusations the citizen were re- er, but bystander an identified with no ported police merely spite to de- apparent falsify. report motive to The Unger. Complaint empha- fendant The person such a “peculiar has a likelihood of very sizes the circumstances from which accuracy” .... Specific allegations of the magistrate herein could determine reliability past or reliable contact are not by that the the given information citizen required when question the informant was “credible” or the informant was “re- was an eyewitness the to crime. [Cita- liable”. tions]. “ Thus, 469 F.2d at 1286-1287. ‘the inter- Id. intrinsically nal content of the affidavit Even in cases paid of unnamed infor- prove[d] the truth of the ... citizen’s mants, noted, the court ” word,’ 1286, citing id. at United States we have not required a recitation that an Roman, 579, (4th 1971) 451 F.2d 581 Cir. informant shall previously supplied have (emphasis added). information, accurate but have merely In United McCoy, held States v. 478 F.2d 176 that such a recitation would be suffi- denied, Cir.), 828, (10th cert. cient to U.S. justify reliance on the infor- (1973), 38 L.Ed.2d 62 defendant mant’s S.Ct. story “Such a recital [citations]. skyjacking challenged convicted of only ... is way of validating hearsay a search warrant had been used to which issued obtain a search warrant —not a upon given based information to the FBI ritual that must invariably be observed e.g., a by, passenger and stewardess from even when the circumstances render aircraft, acquaintance the and a former inappropriate.” principle The [Citation.] valid, the holding defendant. warrant to be applied magistrate is that the must “ discussing after the between cit distinction have a ‘substantial for crediting basis’ informants, izen informants and criminal the hearsay.” case, In this [Citations]. concluded, the court Williams’ information was based upon his personal observation and furnished ade- Without what we deem belaboring to quate detail to meet this criterion. More- obvious, quite be the affidavit of [the over, provided the information Wil- FBI agent] amply case was instant liams was amply corroborated.... We permit magistrate sufficient to to ex- reject appellant’s contention that corrobo- independent judgment ercise his as to the ration must directly suspect link to reliability of the various sources of infor- the commission of crime. Indeed, mation. basis on the of the affi-

“An untested story may him, informant’s be davit magistrate before could corroborated facts probable other that be- have cause concluded that person produced of the informant a search issuance of did exist police The them- magistrate. before the warrant. name, knew his certainly selves almost Id. at 179. affidavit is not the truth [and] held Supreme The of Colorado Court ,1 issue .. Hubbard, People v. 184 Colo. 519 P.2d issued A warrant was based search (1974) source of informa- when the several sources in United information from citizen-witness, tion is an identified “the Melvin, (1st 596 F.2d Cir. States v. reliable, presumed is information be 1979). bombing crime was the prosecution is to establish ei- required not tavern, one of the sources was “an ther the of the informant credibility white male” who “stated that a unknown reliability of his information. [Citations.]” moments before had left scene Cadillac at 953. P.2d explosion.” Id. at 494. defendant distinguishing the cit- An often-cited case male’s” state- argued that “unknown “ police izen informer from the ‘traditional his be because ment should not credited ” Paszek, informer’ 50 Wis.2d reliability the information’s credibility and (1971), wherein the 184 N.W.2d 836 Aguilar under been demonstrated “reliability court held that of such a court’s Spinelli. quote We shall person should be informer] [citizen-witness closely they are observations because so report, evaluated from the nature of his analogous the case at bar: opportunity hear and see the matters not, however, regard “un- We do can reported, and extent to which it be infor- an known male’s” statement investiga- police by independent verified subject Aguilar Spinelli. tip mant’s tion.” 184 at 843. N.W.2d the statement of We view it instead as be A sub-issue must dis the bystander witness. While affidavit cussed is whether or not citizen infor of expressly does disclose source not affidavit, mant must be named in the since information, the “unknown male’s” ease Mel- present nexus in the between he provided of the information nature and murder Mrs. Law son’s truck of of his “on the and the circumstances person a referred to provided by rence was strongly suggest report scene” could “a reliable We the affidavit as source.” relating he issuing judge that was holding the name difficulty have no that And, observed. personally what had he a matter of required, the source is not was all the nature his statement not at law, be in the affidavit. The disclosed was tip of an informant’s non-accusa- —it of the and the information reliability source activi- not describe criminal tory and did all of the circumstanc judged must be from ... a detail innoc- ty. merely He stated es entirety and from the the affidavit. in its significance lay Its by uous itself. The one factor to only name of source is a which such fitting in with other facts be considered. know. bystander presumably would not Supreme held in The United States Court sure, preferable it have been To be would 573, Harris, v. 584- United States U.S. have identified for the affidavit 585, 2082-83, 2075, 29 L.Ed.2d 723 91 S.Ct. have specified male” and to “unknown (1971), personally he had observed whether But we must It will leave scene. say may not do to that warrants Cadillac interpret “in a commonsense the affidavit hearsay. issue uncorroborated fashion,” eschewing and the issue of whether realistic only This avoids “[a] attitude” grudging negative the out-of- crediting there is reason for that affidavits for search especially sig- recognizing Nor is it court statement. non- drafted normally the name nor the warrants are nificant neither reliability credibility required Harris, course, proof 1. involved an informant from Thus, like it. higher and others than in the case bar the criminal a standard of milieu.

-357 Kurland, (1965); lawyers in L.Ed.2d 684 State v. su the midst and haste of a crimi investigation.” al., nal pra; finding probable United v. Ven et and that the States tresca, 102, 108, 741, 746, 380 U.S. issuing magistrate S.Ct. cause entitled (1965). Melvin, per deference, L.Ed.2d From that great United v. States spective, implication the reasonable 498, supra, citing 596 F.2d at United States affidavit is that the “unknown male” was Ventresca, supra; v. v. Un United States witness, bystander not an informant. 1286, citing v. ger, supra, 469 F.2d at Jones Treating taking him as such —and into States, United 362 U.S. 80 S.Ct. statement, account that the which formed Kurland, (1960); L.Ed.2d 697 su State chain, single link in a circumstantial pra. non-accusatory think the dem —we the affidavit in this We hold credibility reliability onstration of case contains sufficient statements required Aguilar would be under Spinelli issuing magistrate properly which the in the case of an informant is not required here. probable found cause. Each citizen infor provided piece mant of information to Id. at 497. itself, innocuous in but which fit affiant Huff, A similar case was pieces with the other of information in a (1976), Kan. 551 P.2d 880 wherein de- Hugh his way linked Melson and fendant had aggravated been convicted of killing truck to the of Barbara Lawrence. robbery of a store. After officers came averments affidavit from descriptions obtained of the four robbers sources, many several unlike cases where employees, searching from store and were probable only cause can be established from patrol cars, the area in “an individual” ran The statement from the informant. up to them and people described four whom in that it self-verifying, “reliable source” is he running building. had seen into a nothing speculative. contains The source arrest, challenged defendant but was; knew that clearly knew who Melson court held that the information from the Melson’s; knew the truck was “individual” coupled with the other facts place where was seen was the Lawrence officers, which were gave known to the residence. information could Such probable them cause to arrest defendant. belonged have come from someone who The court noted the individual did not neighbor, employee, that immediate area —a crime, pertaining relate facts but fact, or relative. it is conceded that the who, only people out, to four it turned Lewis, “source” was Mattie the Lawrences’ descriptions matched the of the robbers. maid, preliminary who at the hear testified “There nothing suggesting is in the record in ing and trial. There is no indication the that it was unreasonable for Officer Baker attempt keep of a deliberate to affidavit to believe the individual other than the anonymous; simply the “source” she was mere fact he was at unknown.” 551 P.2d not named. added). (emphasis 884 This not a rea- was son to disbelieve the information. Each case must be looked at under its facts, probable and the existence

Accord, Kurland, own of N.J.Super. v. 130 110, cause must be reviewed under all the cir- (1974). 325 A.2d 714 The combination of circum- cumstances. foregoing discussion sets present outlined in Lt. Jowers’ stances as the re forth standards which we must magistrate’s finding supports affidavit supporting view the affidavit the warrant probable of cause. for the search of Melson’s truck. We would held, only help add the that affi general propositions Having thus we cannot admon- ishing davits must be looked at and read in a law enforcement officials that this manner, practical commonsense and far short the ideal. It United affidavit falls of Harris, supra; States v. v. United States should no means be considered a model Ventresca, 102, 741, must draft affidavits in the U.S. S.Ct. for those who point 1, that Art. in would out under 15 of

future. “The affidavit this case obvious- § Moreover, Constitution, ly poorly may was there our bail be denied alto- drawn.... appear why gether would be no reason the iden- is capital proof to in case “when tity evident, not have been great.” of the informants should or This presumption Kurland, supra, disclosed.” State provision argu- was the basis of the State’s A.2d at 716. ment, hearing, that bail preliminary at denied; should be and in fact was denied. hand, On the did other defense counsel wide very The trial court has latitude credibility not pursue reliability bail, setting we most reluctant to are hearing. issue at the As suppression noted second-guess this case. Even if the court in above, interpreted the court the entire the amount set was more than Melson was being the defense’s as argument thrust of raise, showing able is no in fact to there that misrepre- the affidavit contained purpose setting such court’s intentionally recklessly sentations made. prevent gain- was from amount to acknowledged interpretation Counsel this ing properly his freedom rather than exploration was being correct. There no of would in court. appear assure he surrounding facts the issuance of Wilson, warrant. United 479 F.2d States 8, governs review of TRAP 936, 1973). (7th We make this Cir. affecting trial court orders release condi statement, it is not the for although basis conviction, both and after was tions before sufficient, our is holding, since the affidavit proceedings at effect the time of law, as matter of on its face. that, question; TCA 40-1204 prior § re appeal pre-conviction had dealt with BAIL effective reme lease orders. Melson was held without bail after his $200,000 dy would setting for the of bail at arrest, county pending grand action promptly have been to follow Rule 8 after jury. grand him first jury indicted for was to wait after convic bail set —not until 5,1980. degree May May murder on On tion. His could have been ruled on case defendant filed the first of motions spent jail. gains before he months in He appeals which he from now Motion —a nothing by at appealing the amount bail recites, Set Bail. Defendant’s brief but the holding no point. ground this There is reflects, no a hearing record in way set, at was even that the amount which bail May held on the Motion on as a excessive, if it were than not probably more $200,000. result of at which bail set ap of the case. The affected outcome relating The next item record peal this at of no point issue this Bail, bail is a Motion for filed Reduced practical effect or benefit to the defendant. September Again, 1980. Melson’s brief reflect, states, but record does not the court the motion on October 3 heard PARTICIPATION BY DEFENDANT and declined to reduce bail. Defendant AT TRIAL argues setting here bond 6, 1980, filed On October Melson’s counsel $200,000 to bail” in amounted “excessive Participate a Motion to Allow Defendant to Eighth violation of Amendment of the no this at Trial. There is indication that 1, and United States Constitution Art. was or what entered into argued, Motion 15 and of the Tennessee Constitution. §§ to it. apparent the court’s decision overrule The again relies on the fact that the State (1) It were: grounds The for Motion transcripts record contains no of the bond lengthy be was evident that trial would matter is not hearings argues (2) right A has complex. defendant v.Wiley reviewable. 552 S.W.2d the Sixth Amendment the United under

413 (Tenn.Cr.App.1977). 9 of the States Constitution and Art. § Constitution, ful- very “participate true that there is Tennessee to

While it is review, ly (3) “right This has for we in his own defense.” little in record us to we could find nothing on basis which been recognized by this Court State hear- Burkhart, (4) transcript There is no (Tenn.1976).” error. in counsel’s ing; two letters referred to That in Burkhart conditions outlined absent; are being forthcoming per- affidavit as participation by propria Melson in showing met. that defense counsel sona as well as counsel had been there is no obtained the evidence could not have right partici to The of defendant motion sooner assistance referred to in the pate is an alternative in his own defense ground for the motion than she did. One is, right one. That has either to be one defense had not re- was the fact him represented by represent counsel or to examinations report of the mental ceived Burkhart, self, to conduct his own defense. Middle Tennessee-Mental conducted at the supra, entirely therein. It is cases cited However, al- the court Health Institute. rep grace a matter of for a defendant from the psychological evaluator lowed counsel, resent himself and have and such objec- over the testify Institute to State’s by the trial privilege granted should be tion, His witness for the defense. as a only exceptional court circumstances. favorable to Melson. testimony highly was The mere that a defendant facts customarily granted not Continuances are seeking is not to disrupt proceed the trial course, we can- merely as a matter of ings may intelligent and that he be do not in this case where it not reverse the verdict require judge a trial to allow a defendant trial court clearly cannot be shown that the represented participate. counsel denying abused his discretion in the contin- These are threshold considerations. uance. Further, length we do not find that the of a trial or the penal involvement of the death VENUE ty “exceptional constitute circumstances.” 23, 1980, moved for a May Melson On These present factors are far too often to to the motion change of venue. Attached “exceptional.” hybrid representation be If newspaper transcripts were articles and every lengthy to be allowed in and/or event, along about the with affi- broadcasts case, capital then by definition could not asserting davits from individuals that Mel- granted be “sparingly and with caution.” son could not reeeivé a fair trial in Madison Burkhart, 541 S.W.2d at 371. We shall not County. The asserted that a fair trial set forth exceptional what would constitute had, submitting could be its own affidavits. circumstances. transcribed, hearing, A was held on represented by very two com- 30, which the court overruled the May petent attorneys, and there is no indication motion. June the court ordered On opportunity that he did not have the and the everyone involved for the State give consult with them or them his views. defense, make, not to issue or disseminate There is no evidence support the defend- concerning the any extrajudicial statements judge ant’s contention that the trial abused litigation. in failing discretion to allow him to opinion, the trial court ruled cor- our participate certainly at his trial. We do not rectly. pretrial publicity occurred be- feel proba- that denial of this Motion more indictment, tween the death and the bly than not affected the outcome of the died down af- publicity stated above. case, 36(b). TRAP mid-May, ter the and the trial indictment not held until mid-October. All

CONTINUANCE nature, except for reportage was factual in paper. A week before the scheduled trial from each Jackson editorial date, event of Melson filed a for a These were restricted to the sad Motion Continu death, ance, trial did not deal supported by an affidavit. The Mrs. Lawrence’s motion, suspect, investigation, apparently court overruled the with the concerning contains de- appeals. weapon, anything defendant The record else 360 case, general facts about the but their an- articles or tran- None of the news

fendant. sensational, poor or in scripts improper, affirmatively showed lack swers to voir dire attorneys by remaining taste. A statement one of six veniremen were of bias. The which is com- general, publication of per- These had peremptorily challenged. defendant, from quotation is a plained by of the facts recollections haps specific more prelimi- argument to the court at feelings crime, their or described whether or not nary hearing, concerning How- being shock or horror. about it as bail should be set. ever, expressed also their abili- people these fair, impartially; to hear the case ty to be dire, relate the fol- We to voir turn opinion no they had formed and stated that The lowing place perspective: to it in facts Melson himself. guilt as to the half; ve- fifty and a day voir dire took regular were examined for niremen governing reviewing the law for the selection of the panel and seven venue, note that under change of we first fif- The excused for cause alternate. court 21, of whether or not the decision T.R.Cr.P. regular panel and teen veniremen for the for the sound discre change the venue is these, six stated four for the alternate. Of may not be the trial court and tion of against vote automatically would absent a clear abuse appeal reversed on venire- penalty. the death One alternate State, 550 Rippy discretion. S.W.2d such he had heard man was excused because Hoover, 636, 594 (Tenn.1977); 638 something room waiting mentioned in the (Tenn.Cr.App.1979); Seelbach v. 743 S.W.2d voir being asked on questions about State, (Tenn.Cr.App.1978); 267 S.W.2d knew the personally dire. veniremen Six (Tenn.Cr. State, Adams v. already formed family and six others had therein. App.1978); and cases cited opinion in the matter. an jurors against whom de- twenty Of the case in this pretrial publicity The alleges bias due specifically fendant’s brief possi cannot has been described above among were those excused publicity, ten extent or sen intensity, bly compared be was not ex- for cause. the venire Since in, example, for to that outlined sationalism ceased, dire defendant hausted when voir Louisiana, 373 U.S. S.Ct. Rideau v. the exclusion of these prejudiced by was not Dowd, Irvin v. (1963); 10 L.Ed.2d jurors. possible veniremen as 717, 725-727, 81 S.Ct. 366 U.S. defense, chal- Adams v. (1961); which had sixteen L.Ed.2d 751 eight, coverage did not exhaust of this lenges to the State’s supra. By comparison, in the voir peremptory challenges early Memphis its and one case in the Jackson media were challenges peremptory dire. Three and re dignity newspaper was a model of the alternate. exercised on selection de submitted straint. The affidavits Motion as exhibits fendant heard noth- Eight veniremen had indeed Venue, although there Change of perempto- crime. Five were ing about the simply contained all alike and many, were jury. on the challenged and three sat rily that because conclusory statement specifically mentioned of the latter was One not obtain could publicity, extensive being biased as in the defendant’s brief county. trial in the a fair school with the gone she had because 1940’s, and This had been in the victim. held Supreme Court States United then. Fur- had no contact since they had therein, that, Rideau, the facts supra, under daugh- ther, taught juror this voir to examine necessary it was not ter; attorney was a close and one defense was im- a fair trial to determine that dire was the who we infer friend of someone In that question. parish possible daughter. juror’s times case, three there had been televised interrogation between an on a local station nine other veniremen points Defendant containing a and the defendant the sheriff publicity. Three having been biased charged to the crimes confession They remembered some detailed jury. sat on the

361 putative either the crimes or the criminal (armed murder). robbery, kidnapping however, us, by itself to render a trial In cases such as that it is not sufficient before in this constitutionally unfair. Petitioner held to deter always necessary has been communi- simply has shown that the which was case jury mine whether or not the charges made well aware of the ty was actually impanelled preju showed bias and “ asks us on that basis to against him and against dice ‘The affirma the defendant. of constitutional presume unfairness challenger. tive of the issue is magnitude his trial. This we will not at Unless he shows the actual existence of atmosphere in absence of a “trial do opinion juror such an in the mind of the corrupted by press coverage,” utterly ... presumption partiality, will raise the Florida, at Murphy supra, v. U.S.] juror [432 need be set necessarily phy v. aside....'" Irvin the United at S.Ct. S.Ct. State, supra, 563 went on to See Dobbert v. Dobbert v. .court.’ totally ignorant of the facts and issues sufficient involved. impression prospective juror’s impartiality would be innocence of an “Qualified any preconceived notion as sufficient dict based on S.Ct. Dowd, Several cases have S.Ct. at 723, “‘To hold that Petitioner’s establish an 2290, 2031, 2035-36, 81 Florida, ” S.Ct. 2303; 53 L.Ed.2d 344 807. As the Court in Dobbert Florida, say, States if ^[1642] U.S. jurors need . . or Florida, rebut the ., quoting at 1643 421 U.S. argument opinion the evidence Adams v. impossible S.W.2d 717, 723, accused, Supreme v. (1961). juror supra, the mere existence of 44 L.Ed.2d 589 Dowd, adopted 432 (citations omitted). and render a ver- at 806. can presumption not, however, (1977); 794, 799-800, without U.S. from standard. L.Ed.2d supra, Court lay the words of presented U.S. 282, 302, the exten- supra, Adams v. aside his Irvin 366 U.S. more, in Mur- guilt at (1975): of a It is 97 be 95 81 selected, or it at particularly close attention. cised in mind and stated trial. There was a only through the time of the indictment. publicity was denying trial court did not abuse its discretion in Melson an formed an crime, shall relate several of these to the facts of this case in factors to be considered in 432 whether to Five additional months da dering 798 sonably circumstances,” no constitutional violation with to convince us that under the main U.S. at there was listed a Supreme pretrial publicity. [95 and those who did had jury anonymous. time his children change S.Ct. at impartial suspected of 303, grant support opinion, few knew selection. Of the Hoover, supra, factual, fair, Court clearly 97 happened, of venue to Melson. The Murphy, a 2035]. great S.Ct. of our trial. change and all had Petitioner has failed cannot group of seventeen nothing [in elapsed at 2303. deal of care exer- wrong (Even One who is rea- holding supra, the Flori- without Dobbert mur- and took they of venue. 594 S.W.2d at expect No panel finally determining “totality before the about could those respect to an heard one had finding paying ] to re- place open give who We coverage by sive the media denied him a challenged, who men- peremptorily entirely upon fair trial rests almost “seeing something passing tioned about quantum publicity which the events having the criminal on television” or heard received. has specif- He directed us to no who had that “she was killed someone record, ic portions particular husband,” stated employed by been her voir jurors, dire examination of the lay aside they without hesitation that could require finding would of constitutional try the de- whatever had heard and jury unfairness as to the method of selec- fairly only upon fendant based the evidence jurors tion court.) willingly or as to the character of the The court presented in had, ap- ex- actually Murphy, anyone selected. But under cause who excused for have, opinion. Melson knowledge community peared tensive formed an Houston, we out in not challenges pointed his the peremptory did not exhaust defendant, State, is Although but also the entitled to very until late in the voir dire. impartial Id. at 272. “A a fair and trial. personnel prosecution law enforcement and who cannot follow the law and in- appear juror not press, were it does quoted said; judge capital pun- struction of the trial was anything inflammatory that ishment is not to the state. impartial with the appears everyone complied [Cita- it that tions Id. A defendant’s inter- extrajudicial prohibiting omitted.]” court’s June order quite represented on sufficiently ests are discussion of the The defense’s affi- case. jurors are jury by presence the the of who support davits in of motion were conclu- its impose penalty; to death such reluctant the sory only, appear and it not there does same jurors essentially represent the cross- against or any were threats demonstrations jurors society section of as would who County Melson. Madison is one more it. automatically against would vote Such state, enhancing areas of the populous capriciously jurors will see that it is not of untainted obtaining jury by likelihood a jury is not to imposed. function of have fatal bias even if its did an members law, conscientiously carry to make the but awareness of the case. by law as to them given out the it is holding difficulty We have no fairly to the apply court and to facts no error there was in the court’s dismissal the case. Change of the Motion for of Venue. assertion that the third was tainted case jury by discussion JURY SELECTION As we have not waiting the venire room. In addition to above treatment ed, day. jury selection took over At process, respond we to three voir dire shall tentatively day, end of the first selected concerning other issues raised night. jurors sequestered were for the On jury process. selection day, tentatively first twelve the second before trial Melson filed a motion by one jurors questioned selected de were sequestration for individual voir dire what anything fense counsel as whether to this allowed for during voir dire. The court would in happened soever had publicity questions regarding the effect at length, them. way questioned affect He on the death and the veniremen’s views broadly possi as questions phrasing Thus, the of voir dire penalty. only portion re accept We must what the record ble. relating to panels conducted was that flects, jury and hold was taint that the health, activi employment, family, outside up point. ed to that ties, rights amply were etc. Defendant’s that, first twelve was After one of the voir dire in this protected by conducting the and more venire- challenged peremptorily manner. was excused for men were called in. One prevent also to Defendant filed a motion cause, challenged, third be- was opposed jurors who were disqualification As to the alter- juror. the twelfth came would automati- penalty to the death nates, op- for two were excused veniremen against argued vote He cally it. A third penalty. position to death jurors such violate his consti- exclude would her voir dire challenged, but peremptorily trial and rights impartial to an tutional uneventful. The death penalty on the opposed to equal protection; persons juror number person became alternate next capital punishment are an identifiable 1. rep- should be society as such group There followed some discussion be jury is to fair. resented on the if the trial bench, remarked when defense counsel alternate, who had the third candidate We have eases considered challenged, “attempted peremptorily did hold as we in been upon by relied Melson and what (Tenn. ques- floor jurors tell on the second Houston 593 S.W.2d being was asked asked. She issue merit. As tions 1979) that this is without him the case jury who has never heard of jurors downstairs. I believe prospective her, there is Deputy stopped actually impanelled. but Sheriff’s until are going a lot of conversation on about might want

questions the Court [and] CERTAIN IN ADMITTING ERROR that.” question the next alternate about EVIDENCE that deputy present who had been said by Melson the issues raised One of juror say anything. he had not heard that declaring in Herbert is that the court erred if jurors any- The court determined to ask witness and ad expert L. MacDonnell an body had talked to them. However, the de testimony. his mitting excused, Two more veniremen were one only object fense not failed to to the court’s cause, peremptorily and one for without him, ruling but also it conducted qualifying being asked they defense whether during no of him cross-examination had heard discussions about the voir dire. of qualification As the Court process. The next venireman about questioned was State, Appeals Bryant held in v. Criminal things other and the defense indicated that (Tenn.Cr.App.1977), S.W.2d questioning, it was finished when the State assignment even “we could not consider this asked for court a bench conference. The if it merit.” had whether, then asked while the venireman downstairs, had been waiting anyone had the defense did do was move What presence being discussed in his what was and cross ex after Mr. MacDonnell’s direct juror responded asked in this court. The testimony amination to strike his entire questions capital punish- that some about that he made.” “based on the last statement being ment were simply discussed. It had This was that he was not aware of the been capital punishment stated that was having accepted Tennessee courts of being dire, asked about in the voir and that in principles pattern on which blood stain “some of they against them said were it and based, being a terpretation had been as why that’s being were relieved.” De- subject expert testimony. recognized fense counsel wanted to know whether it expert The area in which Mr. MacDonnell’s had previous day been discussed on the sought basically to ex testimony was only day, just on that because she had which were plain pattern of blood stains people heard a rumor that “last had talked pants, from spread over Melson’s shirt and night” about what their answers would be. bottom, top as well as to some extent on However, only the venireman had heard cap and boots. talk day. that The court then said to de- objection appears to be to The defense’s counsel, fense you spe- “Unless have some expertise in recognition of this area of incident, cific that closes coun- it.” Defense education, Tennessee, rather than to his further; object sel did not that venireman background His and ex- background, etc. carry was excused and the court did not on partici- were formidable. He had perience further voir dire. crimes, investigations many of pated in the opinion We of the court in no are writings, conducted numer- published many way abused his discretion in the manner in seminars, long done research over a ous which he dealt with this situation. The fact gener- in in period years forensic science capital punishment being asked and, phys- particular, principles al in against it people about and that who were He had applied patterns. ics as to blood excused, no being probably were came as courts, many state and federal testified surprise jurors. We do not feel that hearing Memphis con- including a 1974 it likely jurors’ is so answers cerning Ray. James Earl his discre prejudiced that the court abused Mac- argues that none of Mr. The defense Groseclose, tion. See State pattern in blood experiments Donnell’s 142, 148 (Tenn.1981). Again, as we noted humans, had been carried out change argu analysis our of venue discussion course, However, ment, expect a defendant cannot to obtain a on animals. but request. discovery to its The court allowed had investigated crimes which he had Further, testify objec- Ingram he Mrs. over involved humans. testified out, because, physics very pointed “in differ- tion as her it makes little name been called out numerous times origin ence as to what the blood dire, earlier, three during days is—whether soaked with voir polyurethane really blood or it hand —it witnesses. is a human the State’s energy doesn’t matter. You transfer We the court was correct hold get erup- blood hydrostatically you an objection. The overruling the defense’s could spatters.” tion of blood The witness furnishing witness- purpose of the names of way tell in which differences Aldridge es is prevent surprise, how depending upon blood would spatter (1971); Tenn.Cr.App. 470 S.W.2d much force blood to be shed. caused the mentioning of her name repeated prevented surprise is no when urges during The defense that there voir dire also con- Further, testimony pat- “blood she called. her such area of as stain was expertise However, may nothing a be new or different although terns.” field tained narrow, who to Melson. She certainly persons damaging be would have been may there employees of group are that experts Certainly merely there verified are therein. at the in, example, phys- nuclear and their relatives was Shanklin experts fewer Mel- noon crime. house the after fingerprint ics than there are in identifica- tion, prejudiced by the of a should son not the admission of but narrowness field was con- testimony. “The record Ingram’s of who has Mrs. preclude testimony not intimating nothing to tains so much as proved expertise therein the satisfac- been other- testimony tion of the trial court in the reasonable ... would have [her] case, able any exercise of his the wise counsel had been to discretion. if defense interrogate before the witness testified that he had trained over interview and [her] area; supra, were 45. people Aldridge, 300 and there trial.” 470 S.W.2d ex- (including others the defense’s chosen a series of of As to the admission training The pert) people. who were also scene, ar photographs of the crime as as subject has been written on far back far out effect gues prejudicial their 1898, and the knew of over a hun- witness Generally, weighed probative their value. said, reference As the witness dred works. admissibility of has been that “the law testify “there are who people other [as a matter be determined photographs is I am pattern experts]. blood one of in of its court the exercise the trial say few I wouldn’t that there certainly State, discretion,” v. 507 Cagle sound number, ever large but there is an are (Tenn.Cr.App.1973). S.W.2d increasing number.” gruesome in nature photographs, “When clear, testimony was Mr. MacDonnell’s of emotions appeal likely understandable, dem- accompanied by contested jury, probative not of some are obviously onstrations to He knew jury. are admissible. If they factual issue not was spoke, whereof he and we hold that he are. Hawkins probative, they [Citation.]” clearly competent give testimony (Tenn.Cr.App. State, v. Further, gave. which he we repeat 1977). objection the basis of could and defendant’s sub- on the leading Tennessee case should have elicited before the witness been Banks, ject 564 S.W.2d is State No was qualified expert. an error case, (Tenn.1978). In that one Smith committed. by blows from blunt brutally murdered instrument, case was made strong court and a complains Defendant that the circumstantial Ingram, against Banks based testimony allowed the of one Dora case, had been photos In that neither endorsed on evidence. because her name was and Banks (according body; of head and indictment nor to Melson’s the victim’s relevant to not pursuant argued defendant brief) furnished to the issue, photographs have admitted. We contested but rather had the sole these purpose agree of with the trial court that their admis- prejudicing jury. Court justified as relevant to the issues Appeals Criminal found that the admis- sion was been, that there essentially, sion of the relied on and hold photos had showing that the court abused his reversible error. is no admitting Additionally, discretion them. acknowledged We the rule of liber affirmatively appear not certainly does evidence, ality including the admission of has photographs that the “admission of the placing broad photographs, discretion Banks, the results of the trial.” affected “Moreover, trial court. the trend mod also, supra, at 953. See United States authority ern is to vest more discretion 1979). (6th F.2d Cir. Brady, 595 respect.” trial court in this Id. at 949. Agents FBI were al Special Two is, course, One requirement that the evi analysis one as to his testify, lowed to dispute. dence be relevant to an issue in A for blood clothing other items second factor is evi that “even relevant thereon; as to his comparisons and one dence prejudi should be admitted if its samples hair found on the evidence with outweighs cial effect probative its value samples known hair taken from Melson gruesome .... The more photographs, the victim. The substance of their testimo the more difficult it is to establish that ny opinion; is related elsewhere in this probative their value and relevance out here, we deal with Melson’s contention that weigh their prejudicial effect.” Id. at 951. speculative their was too to be testimony argues photo that the admissible; prejudicial that the effect out graphs probative admitted here were not of weighed probative Although value. he issue, a disputed he because does not dis concedes that the two witnesses were ex pute the cause of Mrs. Lawrence’s death. perts, he that there are addi asserts three Thus, prejudicial their effect as a matter of admissibility for “prongs” tional test law outweighs probative their value. He expert outlined in testimony, United States argues of, testimony example, for Brady, supra, following United States v. the pathologist and the coroner “adequately Brown, (6th 1977), 557 F.2d 541 Cir. explained” established and better the cause prop were not met here. These three are: of death. subject, conformity generally accept er to a ed explanatory theory, probative value The State has made arguments compared prejudicial effect. the photos did have probative value because the amount of blood and the conditions at samples, particularly As to the blood on the scene premeditation hammer, showed and delib- peen Melson’s clothes and the ball eration; further, because the defense chal- testimony highly Al- relevant. lenged on cross-examination the conclusion though large enough no stain was to test reached by the officers at the scene that the type, presence for blood of human blood blood; substance all over the room was hog positive- and the absence of blood were photos further because the disproved tied in with the This ly established. Melson’s ex- testimony planation Mr. MacDonnell as to how the given at the time of his arrest for got (i.e., blood where it presence clothing—that did on surfaces of blood on his Also, all hogs. around the room and on Melson’s cloth- if giving he had been shots to course, ing). source, Of photo- the admission of the there blood had come from such graphs was discussed presence appear outside the would be no reason for on jury; and the peen State indicated that it ball hammer found in his truck. other, gruesome, pictures more which it samples, As to the hair the witness de- seeking placed was not to have into evi- samples compared scribed how hair are dence. twenty or so characteristics each hair

Thus, the fact and cause of death were which are examined. It is true that two sought not the issues on which may possibly matching the State to individuals have statute, penalty date the Tennessee death hair, fingerprints, unique. which are unlike study, agent stated that in a Canadian 39-2404. The Court Criminal TCA § experience, and in his it had been own explained why observations Appeals well people found that the hair of two different opinions do not appellate contained in court 4,500 to every would match in one out of jury basis for instruc- satisfactory form a Further, 5,000 individual cases. the other State, tions in Henderson v. S.W.2d place would have to have been in same Also, (Tenn.Cr.App.1976). the idea 847-849 being the same time as the individual to a de- “mercy” could be extended Thus, unlikely extremely examined. it was in the instructions incorporated fendant is hair, Lawrence’s found on Mrs. factors; the admonition mitigating hair, exactly matching blouse and prejudice being by passion ruled against head. would have come from someone else’s Thus, requested in- throughout. runs these highly unlikely It was also the hair instructions were reflected in the structions peen embedded in blood on the ball ham- given. Edwards actually mer, which matched Mrs. Law- exactly (Tenn.1976). hair, anyone from rence’s would have come even else. This likelihood was rendered jury need not 3 and 4. That the hair on more remote the fact that in order mitigating circumstance find than the hammer was broken off rather sentence; a life sentence a life to return out, having fallen having pulled been out of of the evidence. may regardless be returned have come out and thus could sentence, impose That in order to death application of force. unanimous; jury if the must be jury holding We have hesitation in that the no decision, de reach a unanimous could not agents clearly of the FBI met all testimony impris life sentenced to fendant would be holding admissibility. fully tests This onment. holding consistent with the in defendant’s case, supra. own Brady, simply instructions requested These law. If of the are not correct statements TRIAL COURT’S REFUSAL TO GIVE proved by is no circumstance aggravating REQUESTED IN INSTRUCTIONS doubt, then a reasonable beyond the State SENTENCING PHASE without return a life sentence jury must trial, sentencing phase Before the of the mitigating circumstanc having to consider requested special five in- Melson’s counsel However, prove an es. if does the State structions, give. which the court declined a reason aggravating beyond circumstance object except did not or to this Counsel that doubt, jury finds able then unless request that the be includ- ruling, but asked outweighs aggra and mitigation exists record, objection. in the an implies ed circumstance, only impose can vating it instructions, holding and our requested penalty. death each, as to follows: prong, TCA 39- unanimity As to the § the decision to af and 2. That 1 any jury -imposed punish- mercy does 2404 is clear ford an individual defendant Thus, in set unanimously not violate the That reached. Constitution. ment must be weigh ting punishment, jury was to considering its choices jury when the is mitigation, aggravation the evidence in with reach- punishment, it is concerned by passion, but was not to be influenced result, jury is just ing a unanimous prejudice, arbitrary or other factor. Coun of a trial. guilt liability phase in the or sel cited v. 96 Gregg Georgia, U.S. v. in Houston point This was considered (1976). S.Ct. 49 L.Ed.2d 859 (Tenn.1979), wherein S.W.2d held, jury’s of a delib- we “The after-effect

These made basically observations for the proper eration is not a consideration by the in the course of the Supreme Court opinion, explain jury.” do not or eluci- Gregg Id. 278. deliberations, killing up

5. That in its wherein the victim is struck jury presume was to if imposed times, causing a life thirty an entire room to be sentence, spend blood, Melson would the rest of spray flying covered with a his life in prison, imposed and if it a death causing the victim’s brains to extrude sentence, electrocuted; Melson would be skull, through gaping hole in her evinc- jury and the was to pre make no other depravity es of mind. sumption. argues aggra He the second Again, this is not a full and fair reflection vating (§ 39-2404(i)(6), circumstance found consider; jury what the was to and dealt prevention prosecution, of arrest or does more with the effects of the verdict than jury to him. We apply find that itself, Houston, with the verdict supra. could have found that this factor was law correctly given jury to the doubt, since present beyond reasonable Edwards, charge,

court’s supra. expose Mrs. Lawrence had threatened to alleged gasoline. theft of He had told Hen CONSTITUTIONALITY OF DEATH trouble;” Shanklin, ry heap “I’m in a PENALTY STATUTE Lewis, and he had told Mattie can’t “She challenges addition the above coming tell Mr. Jack have Mr. Jack trial court’s refusal to give requested jury raising back there hell with him.” instructions, challenges the constitu- argues Defendant tionality of the penalty Tennessee death death penalty disproportionately severe statute, TCA 39-2404. Most of § punishment, considering the crime and the grounds advanced Melson have ex- been compare defendant. Counsel this case with amined previously by this Court and found they urge several others their prove point. to be without merit. However, comparing this case with numer argues He aggravating ous imposition others illustrates that (§ circumstance jury found 39- penalty death does not demonstrate that 2404(i)(5), the murder was especially hei aberrant, jury arbitrary capri nous, atrocious, or cruel in that it involved agree Nor can we with Melson that cious. torture or depravity mind), is unconstitu sentencing process review established tionally vague overbroad, a contention (former under 39-2406 and Rule 12 TCA § which we rejected have v. State Pritch 47) ly Rule of this is unconstitutional Court ett, (Tenn.1981); 621 S.W.2d 127 v. State ly inadequate meaningful pro to afford a Strouth, (Tenn.1981); 620 S.W.2d 467 State Pritchett, portionality review. v. su State Groseclose, (Tenn.1981); Strouth, pra; supra; v. Cole State Dicks, and (Tenn. State v. 615 S.W.2d 126 man, (Tenn.1981); 619 112 v. S.W.2d State 1981). Strouth, In ag we stated that this Groseclose, supra. gravating interpret circumstance should be We is have held that constitutional ed to refer to a pitiless conscienceless or act 39-2404(h) under not inform the TCA to § which was unnecessarily torturous or jury agree unanimously if to that fail mind; a depraved evinced state of that the punishment, impose will the trial court heinous, torture inflicted must atrocious be Simon, life sentence. v. 635 State S.W.2d agree killing or cruel. We of Bar that the (Tenn.1982); Harrington, 498 v. 627 State test, bara Lawrence met this despite Mel- Pritchett, (Tenn.1981); v. S.W.2d State son’s argument that no torture occurred Strouth, supra; supra; v. Houston v. State because Mrs. immediately. Lawrence died State, (Tenn.1979). 593 S.W.2d First, theory plausible. This is not the un- proof presence contradicted shows that Mrs. Law of the exclusive list of injuries rence had defensive to possible aggravating her arms circumstances set out hands, 39-2404(h) and there was time for notice proving adequate in TCA is § defendant, happening, being her to realize what was to feel without his thereof to a fear, Second, protect and to to herself. try specifically by notified the State factor; great it has a significance any or to relying. is

particular upon ones which it Groseclose, Strouth, supra; jury aggra- v. v. If a finds State State deal of latitude. supra; Berry, outweighed, v. 592 S.W.2d there vating State circumstances are (Tenn.1980). change can do to nothing is which the State outcome, finding is opposite this while an statute, the TCA argument Melson’s may Defendants by this Court. reviewable the 39-2404(f) (g), specify fails to § carry will out the this be assured that Court proof to be proof and standard of burden 39- of TCA statutory requirement § determining aggravating used in whether sentence 2406(c)(3) reviewing “in the mitigating circum outweigh circumstances degree, the murder in the first of death for addressed, previously stances has been determine shall Supreme Tennessee Court Johnson, (Tenn. v. State supports evidence whether ... Coleman, 1982); supra; v. v. State State any miti- the absence of Dicks, jury’s finding of Pritchett, supra; supra; State substan- sufficiently circumstances Houston, gating supra. State circum- outweigh aggravating tial to argues that TCA 39- § so found.” stance or circumstances failing re 2404(j) is unconstitutional to quire mitigating what jury specify that TCA point last is circumstances have been considered right 39-2404(d) him the denies § out found to be and insufficient absent jury at the present argument” “final circumstances weigh aggravating provides The statute sentencing phase. (which beyond a rea must have been found by then by first closing argument jury sonable doubt to exist before This defendant, the State. by and last circumstanc mitigating reaches the issue exists which argument is the same order of shortcoming pre es). argues He that this having party proceeding, with any this Court under adequate by vents review first and last. proof arguing the burden 39-2406(c)(3). disagree. TCA We § prejudicial Thus, inherently this order is not weighing aggravation/mitigation favorable to State to the defendant or for a jury fraught safeguards is with stage of a death sentencing in its use at the aggra- certain defendant. There are cit of the cases proceeding. None penalty may be con- vating circumstances which holds, implies, even oth ed defendant in the stat- spelled sidered. These are out York, 422 Herring v. New U.S. erwise. it may ute and the is instructed that jury 2550, 45 (1975),the L.Ed.2d 593 95 S.Ct. factors. The any consider other a conviction Supreme overturned Court a reason- proving beyond has the burden of jury trial. place taken without which had that one or more factors exist. able doubt al exercised discretion judge The trial a New York statute lowed him under circumstances mitigating

The statute lists of the evi any summation considered; had disallowed but, in be contrast may Such part of the defendant. circumstances, dence on the of aggravating to the list this We hold inapposite here. case is to these factors. jury way is in no limited without merit. its issue is factors on may It consider other initiative, in this in fact the court own Tennessee death hold that We instructions: others in its case added several constitutional; penalty statute discharge from the Melson’s honorable 39-2406, we hold review under TCA § our history prior Navy, significant his lack of arbitrarily, capri applied it was family he was a activity, criminal and that this case. passion with in ciously or productive peaceful man who was a all issues rulings on The trial court’s is no community. There member of the herein, jury, factors; the verdict of raised mitigating proof burden of all penalty, are of the death imposition factor out- find that jury may and the is fixed execution The date of affirmed. any aggravating circumstance. weighs 15, 1982, stayed unless is, weight November may great attach jury That otherwise ordered this Court or other

proper authority. ap- Costs are assessed to

pellant.

HARBISON, J.,C. and COO- FONES

PER, JJ., concur.

BROCK, J., part dissents in and concurs part.

BROCK, Justice, concurring part

dissenting part.

For the reasons stated in my dissent Dicks, Tenn., (1981),

I would penalty hold that the death is un-

constitutional; but, I concur in all other

respects. PICKETT,

Frances Annette

Plaintiff-Appellee, BROWN,

Braxton Defendant-Appellant, Leech, Jr.,

William M.

Intervenor-Appellant.

Supreme Court Tennessee.

Aug. 1982.

Case Details

Case Name: State v. Melson

Court Name: Tennessee Supreme Court

Date Published: Aug 16, 1982

Citation: 638 S.W.2d 342

Court Abbreviation: Tenn.