*1 Tennessee, Appellee, STATE of NESBIT, Appellant.
Clarence C. Tennessee,
Supreme Court of
at Jackson.
Sept. 1998.
Rehearing Denied Nov. *4 Defender, Wharton, District Public
A.C. Ward, Assistant Public Memphis, W. Mark Johnson, (Appeal only), S. Ronald Defender Thomas, Betty Public Defender *5 Assistant J. (Trial Appellant. Only), Memphis, for Attorney Walkup, General John Knox Moore, Reporter, E. Solicitor Gen- Michael eral, Attorney Cauley, P. Assistant John Gibbons, General, Nashville, District William Henderson, General, Attorney D. Thomas Nichols, District Attor- Assistant Jennifer General, neys Memphis, Appellee. for OPINION DROWOTA, Justice. defendant, capital Clar- this Nesbit, premeditat-
ence was convicted C. sentencing degree At the ed murder. first aggravating cir- hearing, jury found one (1) especially was murder “[t]he cumstance: heinous, that it involved cruel in atrocious or beyond that physical abuse torture or serious produce Tenn.Code necessary to death.” 13—204(i)(5)(1991 Finding Repl.). §Ann. 39— out- aggravating circumstance beyond a weighed mitigating circumstances doubt, the de- sentenced reasonable to death electrocution. fendant appeal to the Criminal On Court direct challenged his both Appeals, the defendant sentence, raising eleven claims conviction subparts. Af- error, numerous some with claims, considering the fully ter defendant’s affirmed Appeals Criminal the Court of Thereafter, pursuant judgment. trial court’s (1997 39-13-206(a)(l) approximately for § known the defendant to Tenn.Code Ann. killing. The victim’s prior one month to her Repl.),1 the ease docketed in Court. this Cannon, sister, testified Constance The defendant raised numerous issues murder, day p.m. on the of the around 1:00 Court, examining carefully but after stopped by the victim’s she and a friend law, including entire record and the the thor- grocery apartment to drive the victim to ough opinion Ap- of the Court of Criminal at the door Although Cannon knocked store. peals briefs of the defendant and the minutes, As no one answered. several Court, 30, 1997, September they leaving, friend noticed were Cannon’s limiting argument entered Order oral looking out the one of the victim’s children issues, setting five the cause for oral By window. the time Cannon returned argument April at the term of Court in Jack- door, opened it. The the victim had son.2 See Tenn. S.Ct. R. 12.3 ready to that she was not told Cannon hearing carefully argument After oral p.m. go to return at 3:00 and asked Cannon record, reviewing the we have determined Contrary practice, to her usual the victim did assignments require none of the of error ask to come inside. Nonethe- Cannon Moreover, supports reversal. the evidence less, door, saw the from the back Cannon jury’s findings aggravating as to the sitting living room couch on the circumstances, mitigating and the sentence of with one of the victim’s children. Cannon arbitrary disproportionate death is not day had seen the defendant once before the cases, imposed the sentence in similar consid- murder, only by knew him but ering the nature of the crime and the defen- nickname recalled that “Red.” Cannon Accordingly, judgment dant. day victim had been barefoot on the Appeals upholding Court of Criminal the de- murder, fully although otherwise clothed. fendant’s degree conviction for first murder *6 seeing a horizontal Cannon also recalled by and sentence of death electrocution is mark neck that on the victim’s she had affirmed. day seen the before the murder. Cannon left, requested, as the victim but later tele- FACTUAL BACKGROUND phoned p.m. the victim around 3:00 to con- undisputed nineteen-year-old It is answer, plans. Upon receiving firm them no defendant, Nesbit, Clarence killed the twen- Cannon assumed the victim had made other victim, ty-year-old Cannon, by Miriam shoot- arrangements and did not return to her sis- ing her once in the on head the afternoon of apartment. ter’s May 1993. While Nesbit admitted that Shaw, boyfriend a James of the defen- victim, he shot the he claimed that the shoot- aunt, apartment dant’s in the lived victim’s ing an had been accident. complex. Shaw testified that he had been guilt phase sitting apartment
The at introduced of outside his on the after- gunshot this trial established that the victim of a lived noon the murder when heard young Pershing nearby apartment Shortly her in with five children4 at the unit. after- ward, Apartments Memphis, area Tennessee. She Shaw saw the defendant leave the nessee, (Su- penalty imposed part 1. "Whenever the death for of this Court’s S.C.A.L.E.S. degree judgment preme Advancing Legal first murder when the has Court Education for Stu- court, dents) become final in the trial the defendant project. right appeal shall have the of direct from the trial Appeals. court to the Court of Criminal Supreme provides 3. Tennessee Court Rule 12 affirmance of the conviction and the sentence of pertinent part setting as follows: "Prior to the of automatically by death shall be reviewed argument, the Court shall review the oral record Supreme Upon Tennessee Court. the affirmance assigned. and briefs and consider all errors Appeals, clerk the Court of Criminal shall designating Court enter an order those is- Supreme docket the case in the Court and the argument.” at sues it wishes addressed oral proceed in accordance with the Ten- case shall Appellate of Procedure.” nessee Rules ages 4. At the time of the trial in of the ranged arguments victim’s children from three to seven heard in this case on 2. Oral were 4, 1998, years. Dyersburg, Dyer County, March Ten- sounded, brain, right her ear gunshot had exited behind from which the casual- Oldsmobile, car, height According of ly 4’11”above the floor. walk to his a blue Smith, complex gunshot wound would have away apartment from at a Dr. drive instantly incapacitated speed. the victim. normal rate of Shaw described normal, except behavior as defendant’s on Dr. Smith also had observed burns “funny had in the look” Shaw observed neck, abdomen, chin, and forearm. victim’s Shortly eyes. defendant’s after defen- at various The burns had been inflicted departed, Shaw saw the victim’s chil- dant points in from hours mere min- time six parking complex. in the crying dren lot of Dr. utes before the victim had died. Smith mother, inquired one When Shaw about their side described the burn on left responded, “She’s dead.” children shape the numeral victim’s neck as (“1”). Davis, viewing photographs Tracy Upon the victim’s one close friend Cannon testified neighbor, day body, testified that on the victim’s Constance base crying in the at the murder she had heard children horizontal bar had seen appeared the mark she apartment victim’s and had seen three of the burn to be the afternoon walking apart- her on her neck victim’s children toward sister’s soot and testified that ment. The told Davis their murder. Dr. Smith children triangular asleep blistering burn under and could not be woken. another mother was on been result, apart- chin indicated that As a Davis went to the victim’s the victim’s Although the pool open oth- lying in a caused flame. ment found the victim origin, Dr. thermal in front of the door. The er burns had also been blood kitchen precise identify the cause youngest victim’s child was on the floor be- Smith could not trying side her mother to wake her. Davis those burns. her apartment
returned to and called bruising scraping Dr. found Smith also police. during the of the victim’s feet on the soles arrived, injuries had they spoke autopsy. opined first that these police He When feet by striking the victim’s them that with the victim’s children who told been caused rod hard, object such as a long, “Red” thin “Red” had shot their mother. hanger. no defensive Dr. Smith found one of defendant’s nicknames. When the coat body. they victim’s police apartment, the victim’s wounds entered *7 clothed, fully body lying up, her face found actions on respect to the defendant’s With body her sandals on her feet. Next to with murder, day proof the showed the of the butt, match, cigarette police found a a a book that, left the shooting, after Nesbit matches, and a hair barrette. Four car- Royal to the Pershing and drove Apartments refrigerator tridges top found of the were on Nesbit, Ashley Motel, uncle where his Oaks fragment a bullet on kitchen and lead there, privately he spoke had a room. Once living room. A hot at the door to the floor uncle, weapon, a murder his and hid the with lay on A curling iron the kitchen counter. revolver, Magnum the bathroom .357 was mark made a bullet found ricochet body had the victim’s the motel room. After ground 4’8” on the approximately above to the returned the defendant been found behind the stove. wall green Pershing in his cousin’s Apartments Smith, encountered pickup The defendant examiner truck. Dr. O.C. assistant medical had him that the victim Shelby County, autopsy on James Shaw and told performed the Roulette. playing Russian that the vic- shot herself while victim. Dr. Smith testified truth, Nesbit gunshot Upon advice to tell the single from wound to Shaw’s tim had died victim, but he shot the opined gun admitted to Shaw that head. Dr. Smith her it The defendant approximately claimed was accident. inflicting had been the wound gun left at the told Shaw he thirty-six inches from the victim’s also twelve pre- were and the defendant entered motel. Shaw when it was fired. The bullet head ear, apartment complex paring body through to drive out her left about the victim’s stopped their gun police when floor, retrieve the traveled in a downward to 5’0” above the A apprehended defendant. through skull and vehicle and trajectory the victim’s inflicting the burn person a The defendant denied search of the defendant’s revealed injuries upon the victim. police per- bruise beeper and cash. With $602 motel, proceeded to the re- mission Shaw cross-examination, attempted the State On gun, police. it trieved the surrendered between emphasize the inconsistencies meantime, pretrial statements and his In the the defendant was inter- Nesbit’s several rogated by police spent testimony. also elicited an and stated that he trial The State had been night killing victim’s from Nesbit that he before at the admission first, apartment. police and her children on the At Nesbit told alone with the victim “playing” gun day been of the murder. Based the victim had above, Later, discharged found the defen- when it and killed her. summarized mur- accidentally premeditated degree first guilty related that he dant the defendant victim, sentencing proceeded to the claiming pulled shot the that he had der. The trial believing phase. trigger gun to be unloaded. pre- upon the evidence At trial Nesbit testified that he had been The State relied and, visiting night during guilt phase his uncle’s of the trial motel room on the sented addition, testify killing police when Dr. before officers arrived recalled Smith began at found on the motel and a search of the about the burns and bruises dresser, premises. Observing gun body. again Dr. stated that victim’s Smith injuries long Nesbit removed it from the room before the these were inflicted as as six hours, placed search and it under the car. little mere minutes before the seat of his or as receiving message After from the victim on victim’s death. He said the burns on degree beeper, apartment, body ranged from severe first Nesbit went to her victim’s arriving approximately degree 3:00 a.m. Nesbit second and were to moderate burns inside, bullets, gun comparable carried the to a severe sunburn or scald removed the placed top refrigerator. by touching something them on hot. burns caused opined He and the victim have talked for awhile before he Dr. Smith that the victim would asleep living pain fell on the room sofa. Nesbit from the individual suffered “moderate” day awoke at 10:00 a.m. on the of the murder burns. and talked to the victim until her sister ar- Smith, According scrapes to Dr. p.m.
rived at 1:00 Nesbit heard the victim tell con- bruises found on the victim’s feet were p.m. her sister to come back at 3:00 relatively type sistent with a rare of torture preparing anticipation to leave in of Cannon’s forcefully “falanga,” called which involves shooting arrival when the occurred. striking person’s the soles of a feet with Nesbit, instrument,
According to which had retrieved the rod or some similar context, gun refrigerator typically military from the in a holding and was is inflicted and, extent, through as he looked outside the blinds cov- to a lesser child abuse cases. *8 injuries ering the window next to were severe the kitchen door. While none of these 'window, away hospitalization, enough require As he turned from the he held to Dr. Smith gun pointed necessary the in it to cause both hands and side- said the amount of force ways bruising person’s to his left. he the of a feet would As “fumbled” with on the soles Nesbit, any gun, discharged. According “great pain,” applied it and if to to the cause victim, left, standing part body, who was to his was hit other such force would be by pistol accidentally respect the break the skin. to the bullet when sufficient to With bruises, Dr. discharged. pan- The defendant said that he both the burns and the Smith have suffered apartment. icked and left the Nesbit admit- testified that the would inju- departure through great anticipating the ted that his route of the a deal of distress past they had been inflicted over an front door had taken him the victim’s ries since Although Dr. period of time. body dead and allowed him to retrieve his extended body cap for found no marks on the victim’s from the sofa. Nesbit did not call Smith restrained, he though indicating that she had been emergency assistance even he knew ligatures have left no leaving young opined four in an that soft would that he was children body. Additionally, he stated that the vie- apartment them mother’s dead marks. might by explained that the cash tim have been restrained mental but he found $602 he person intimidation. Dr. found no defensive his when had been arrested con- Smith body signs money the he had wounds on victim’s and no sisted of had saved or been activity. Finally, given. sexual assault the doctor opined not ordinarily that torture is inflicted proof, jury the found that Based the produce
to death. proven State had existence only aggravating beyond a other witness for the circumstance reason- (1) impact especially “[t]he the victim’s mother who described the able doubt: murder was heinous, atrocious, family, in including victim’s death on her or cruel involved parents siblings physical beyond particularly her and torture or serious abuse necessary produce victim’s children. to death.” Tenn.Code 13—204(i)(5)(1991 Repl.). Finding §Ann. 39— mitigation, presented aggravating out- circumstance in participated Shelby that he had weighed beyond mitigating circumstances County Jail choir. Nesbit’s brother and sis- doubt, jury reasonable sentenced the de- spare ter asked the defendant’s The trial fendant death electrocution. nice, life and he testified that is a kind broth- judgment in accordance with court entered a given previously good er who had them ad- jury’s of Criminal verdict and the Court helped vice them to correct mistakes reviewing the Appeals affirmed. After rec- they made. The defendant’s had mother and considering assigned by ord and the errors grandmother testified Nesbit had been defendant, judgment of affirm the kind, good, person. They and well-behaved judgment trial court of the Court him described as an honest and sincere Appeals. Criminal young always who told truth man right path. and followed the Nesbit had WAIVER dropped grade tenth out school Appeals, grand- moved to Nashville to care for his As the Court of Criminal experiencing argues health first mother who had been this Court there, timely his problems. file motion While he had obtained sev- defendant’s failure jobs grandmother appellate review of all precludes eral his in meet- for trial assist new sufficiency except to the ing obligations. her financial Both the defen- those related issues sentencing. disagree. grandmother We dant’s mother and asked the the evidence or jury to spare defendant’s life. this case correct The State is Nesbit, beyond behalf,
Testifying in
for
trial was filed
his own
nine- motion
new
33(b),
teen-years
thirty-day period provided
Rule
old when the offense had been
committed,
indeed late
plans
told
his
to im-
The motion was
Tenn.R.Crim.P.
and,
expressed
non-capital
appellate
review
prove himself and
remorse for
3(e);
P.
happened. While the defendant would be limited. See Tenn.
RApp.
what had
Givhan,
613-614
State v.
juvenile
having
admitted to
record
tres-
However,
license,
both the
driving on
pass,
(Tenn.Crim.App.1980).
a revoked
as-
sault,
this Court
explained
Appeals
of Court of Criminal
circumstances
obligation
statutory
minimized
criminal
have a
under Tenn.Code
those convictions and
(1997 Repl.)
review the
culpability
§Ann.
for each one. The defendant had
39-13-206
*9
degree murder
of first
no adult criminal record. Nesbit also related
defendant’s conviction
Moreover, our statu-
dropped
he had
out of school
and sentence of death.
tory duty
of death
grade
grandmother
to
the sentence
tenth
to care for his
who
review
appeal by
of
had
in the absence
an
lived in Nashville. Nesbit
not been
exists even
light
this clear statuto-
steadily employed
killing,
of
time
defendant.5
punishment
relating
and the same
to
5. "If the defendant has been convicted
first
record
degree
by
to
but
murder and sentenced
death
does
clerk
the trial court
shall be transmitted
murder,
degree
appeal
the conviction of first
Appeals....”
Tenn.
to
Court of Criminal
certify,
ninety
trial
shall
within
then the
court
(1997 Repl.)
§
Code Ann. 39-13-206
final,
(90) days
judgment
after the
has become
anomalous,
s
directive,
the character witness
ry
in our
tions which test
it would be
view,
precluded
knowledge
specific instances
to hold that review is
be
of “relevant
timely
by such
purposes
cause the motion for new trial was not
served
conduct.”6 The
any
By
holding,
inquiries
explained
filed.
so
we do not
been
as follows:
has
suggest
attorneys in
approve
means
or
permissi-
are
Specific instances of conduct
capital
practice
filing
make a
of late
eases
rea-
ble on cross-examination
several
defendant’s motion for a new trial. To
First,
credibility
they
sons.
test
contrary, attorneys representing capital de
by providing information
character witness
diligently comply with all
fendants should
upon
underlying data
which
on the
Indeed,
filing
the failure to do so
deadlines.
If an
reputation was formed.
opinion or
support
a claim
some circumstances could
witness,
opinion
who testifies that the de-
of ineffective assistance of counsel.
sim We
criti-
person
an honest
at the
fendant was
ply
light
statutory duty
to
hold that
our
time,
that the defendant
cal
did not know
cases,
capital
jurisdic
review
this Court has
conviction, prior
had a
embezzlement
appeal
tion to review the issues raised in this
opinion may have
formed on the basis
been
despite
timely
failure
file
the defendant’s
inadequate
information or a careless
Bigbee,
his motion for new trial.
Cf.
(and
suspect) approach to assess-
therefore
(Tenn.1994);
885 S.W.2d
State v.
Second,
ing
person’s reputation.
Martin,
(Tenn.1985);
702 S.W.2d
help
fact assess
specific acts
the trier of
Duncan,
(Tenn.
State v.
67-68
by the character wit-
the standards used
Strouth,
1985);
467, 471
State v.
example,
gave
ness. For
if a witness who
(Tenn.1981).
honest
opinion
that the defendant is an
person also knew
the defendant
IMPEACHMENT OF CHARACTER
convictions,
trier of fact
shoplifting
ten
WITNESS—RULE 405
opinion
may choose to discount the
evi-
next
tri-
The defendant
contends that the
dence because of the character witness’s
erroneously permitted
al court
the State to
measuring honesty.
low standards for
examine a character witness
about
Paine,
Cohen, Sheppeard,
Tennessee Law of
knowledge
alleged
of the defendant’s
satanic
(3rd
Evidence,
405.3, p.
§
ed. 1995 &
practices. Specifically,
beliefs and
the de-
(hereinafter “Evidence, —, p.
§
Supp.1997)
fendant asserts that no reasonable factual
—”)-
for the
instance of
specific
basis
conduct
alleged
existed because the
rumor surfaced
Though inquiries
specific in
into
killing,
questioning
after the
did not
impeachment
valid
stances of conduct serve
properly
credibility
address the
of the wit-
hearing
purposes,
prevent
from
testimony,
probative
ness’s
and the
value of
potentially prejudicial alle
inadmissible and
inquiry
outweigh
prejudicial
did not
its
character,
gations
about
defendant’s
responds
inquiry
effect. The
procedural prereq
certain
Rule 405 includes
proper
applicable evidentiary
under
be satisfied before such
uisites which must
standards.
First,
attorney
an
inquiries
permissible.
are
405(a),
Evid.,
application to the court before
Pursuant to Rule
Tenn. R.
a must make
offering testimony
utilizing
specific
instance of conduct
witness
about the defen-
witness. Since the rule
may
impeached by ques-
impeach
character
a character
dant’s
be
(1)
405(a)
request
a hear-
provides
The court
must hold
6. Rule
as follows:
ing
jury’s presence,
outside the
or a
In all cases in which evidence of character
admissible,
(2)
person
determine that a reason-
character
The court must
trait of
proof
and,
by testimony
reputation
inquiry,
for the
able factual basis exists
(3)
testimony
opinion.
After
in the form of
proba-
determine that the
The court must
court, inquiry
application
on cross-ex-
specific
of conduct on
tive value of a
instance
specific
amination is allowable into relevant
credibility outweighs
the character witness’s
conduct. The conditions which
instances of
prejudicial effect on substantive issues.
its
*10
allowing inquiry
must be satisfied before
on
specific
of
cross-examination about
instances
are:
conduct
provides
limit, application may
evaluating
no time
factu-
be
whether a “reasonable
immediately
established,
the question
made
before
is
al
the
basis” has been
trial court
asked,
opposing
but if
counsel is unable to
purpose
this
should be mindful that the
of
respond
surprise,
of
a
because
recess
requirement,
by
as noted
the Court of Crimi-
Evidence,
405.3,
§
appropriate.
p. 197.
nal
in
Appeals
this
is to ensure that
faith,
questions
proposed
good
such
are
in
Second, Rule 405 mandates that the
in
place
rather than
an effort to
before the
court, upon request,
hearing
trial
a
conduct
jury unfairly prejudicial
sup-
information
jury’s presence
outside the
to determine
ported only
Though
rumors.
unreliable
inquiries
specific
whether
instances
into
of
previously
we have not
addressed the “rea-
permissible.
jury-
are
During
conduct
this
requirement
factual
Rule
sonable
basis”
of
hearing,
out
the trial court must determine
Court,
ago,
long
decided
re-
that
specific
whether
the
instance of conduct
ports of a defendant’s bad character which do
inquiry
proposed
which
is
relevant
about
is
to
not arise until after the crime for which he or
the character trait
which the
about
witness
being
inherently suspect.
she
tried are
is
example,
has testified. For
this Court held
Sims,
(Tenn.1988),
example,
For
Powers v.
117 Tenn.
questions
pri-
(1906),
regarding
the defendant’s
during
S.W.
the
or
shoplifting
arrests for bad checks and
degree
trial for first
murder for
defendant’s
permissible
impeach
death,
to
stabbing
were
the character
his
to
a wit-
school teacher
who
prosecution
witness
had testified
the defendant
ness for the
testified on cross-
good reputation
truthfulness in
good
had
for
the
the
examination
character
However,
community.
impermissi
we held
Purporting
test the witness’s
defendant.
redirect,
questions
prior
regarding
credibility,
prosecution,
ble
the defendant’s
battery
they
arrests for assault and
because
if he
heard that the
asked
witness
trait about
stepfather
were
relevant
the character
“run his
home
defendant had
from
knife,
which
witness had testified —the defen
kill an-
with a
and had threatened to
school-teacher,
Though
weight
dant’s truthfulness.
the decision
other
and had lain in
adoption
shotgun.”
Sims was rendered before
of
him
[sic] for
with a
The witness
responded
reports
the Tennessee Rules of Evidence
it
that he had heard these
interpretation
language
is
of
killing
an accurate
after
had occurred. Powers
convicted,
permits inquiries
of
into
argued
Rule
which
“rel
before
Court
(Em
specific
conduct.”
reports
alleged
evant
instances of
of a defendant’s
misconduct
added.)
phasis
of
crime
which arise after the commission the
prosecution to
should not be used
satisfied,
relevancy
If the
standard is
impeach a character witness. This Court
trial court must
determine whether
next
defendant, stating:
agreed
with
factual
for the
“reasonable
basis” exists
has
reputation which a defendant
pro
specific instance of
Rule 405
conduct.
subject
upon
quietness and
made
of
specific guidance
respect
no
vides
with
good citizenship
against
for or
available
showing required
nature of evidence or the
puts
him in a criminal cause when
“reasonable
establish
existence
at
which he
character
issue
bore
Nonetheless,
agree
basis.”
factual
taking place of
act for
and before the
Appeals
Criminal
that whenever
Court
trial,
reputation
he is
not a
which
possible,
extrinsic
should be offered at
subsequently acquired
or created
jury-out hearing to establish the “reason
against
put a
him. A different view would
factual
If the realities of trial
able
basis.”
manufacturing
premium on
of evi-
so,
attorney
impossible
to do
make
dence.
should, at
proposing
question
to ask the
Powers,
minimum, clearly
the record the
trial). pre inquiry permissible under the that an our decisions Powers While safeguards of viously procedural delineated predate adoption Tucker of the Tennes requires the trial Rule Tennessee law Evidence, logic and ratio see Rules of specific court to instruct with, are nale of those decisions consistent for the limited acts of conduct were admitted by, factual ba and reflected the “reasonable credibility of the purpose evaluating the requirement of Rule Because of sis” Sims, supra. witness. character manufacturing, potential for evidence person and because a accused of a crime is Having governing legal set out the likely subject more to be the of rumor apply principles, we must now these rules innuendo, reports specific Here, instances alleged the facts of this case. conduct which do not arise until after a trial during guilt phase error arose inherently counsel, crime has been committed are at the end of his cross- when defense suspect in Shaw, not form the basis for a witness for the examination James addition, quiry Rule 405. In trial under asked if he was familiar with Shaw permitting court should exercise caution community for reputation in the defendant’s inquiry if Shaw, under Rule 405 the character wit peacefulness and violence. who subject impeachment ness first heard re aunt and known the dated the defendant’s ports specific instance of conduct after years, responded, for twelve the crime circum know, occurred. Under those nobody. “Yeah. He didn’t bother You stances, to establish a factual ba could, reasonable help you if but he never did— he’d he sis, prosecution must offer some nobody. He seemed like he never did bother jury-out hearing specific in from, away you always stay to me he tried to reported stance of conduct had been before know, trouble.”
the crime occurred. redirect, beginning prosecu- At the tor, conference, specific during
If a advised the instance of conduct is bench knowl- supported by relevant and a reasonable fac trial court that to test Shaw’s basis of basis, edge proposed to ask Shaw wheth- tual the trial court must next deter probative “spe claimed mine whether the value of a er he had heard that the defendant peo- kill worshiped and had to two cific instance of conduct on the character Satan credibility ple get power. requested The defense outweighs prejudicial witness’s its recogni jury-out hearing, In at which Shaw admitted effect on the substantive issues.” allegations uniquely prejudicial impact of that he had heard these after the tion of the conduct, the defendant’s allegations the murder was committed from of instances bad them,” again trial evidentiary place tighter restraint on “auntie and before rules prosecuting attorney. prosecu- permissibility inquiries about relevant from the placed then remarked that he had heard specific instances of conduct than is on tor people “from or three admissibility evidence. information two of other relevant that, Evid., having Indeed, argued provides R. well” and Shaw’s Rule Tenn. it, only if its also heard a “factual basis” existed that relevant evidence is excluded outweighed” asking question. prosecutor ex- probative “substantially value contrast, inqui plained to the trial court that “Ms. Cannon prejudicial effect. its told several of victim] under is the one who specific [the ries into instances of conduct *12 you. I them that the defendant told her that.” Prosecutor: understand. Thank questions, No that further Your Honor. Shaw then indicated defendant’s allegations aunt heard of satanic had gentlemen, Ladies JUDGE: and the Court worship family after you from victim’s if charges jury that find that concerning specific murder. No other evidence this instances of bad character of the allegation worship brought have in of satanic was offered. been out trial, information, you only then can consider it for Based this the trial court accuracy purpose testing exchange and inquiry. following allowed the The witness, credibility of the character and presence jury: occurred in the developed that evidence is not sub- thus your forming opinion In Prosecutor: his good stantive evidence of the defendant’s reputation in community in which he right. may, All bad character. You peacefulness works and lives for you if have recross-examination. quietude, you had heard that the defen- opinion your peace- of his Defense: What worshiped told dant had others he quietude your fulness and now? What is people kill Satan and needed to two opinion of him? get power? order to some Well, in my opinion, Shaw: he’s a nice No, I had Shaw: not heard that. said, know, you young man. I Like Prosecutor: You had not heard that? know, my you he bother opinion, didn’t not Shaw: I had heard that. said, always helped he nobody. Like I him, him I him go me. I to tell need to just you testify Prosecutor: Didn’t a few me; it, you do work for he do ago hearing some moments out of the didn’t, just type you He he Cyn- know. you heard from had know, respected he his aunties and thia Nesbit? else, know, you everybody things and Oh, you yeah,' thought I Shaw: but was elders. talking I heard from him. about had it you opinion heard never Defense: So No, talking I’m not about Prosecutor: no. mean, you directly anybody? I from Let me careful. heard that. You’ve your knowledge personal don’t know of Nesbit; Cynthia it from from— least that; anything about that correct? is that correct? No, No, I don’t. I Shaw: don’t. Right. Shaw: charge The final in this case said; Prosecutor: is that That’s what “specific in- repeated the admonition that correct? stances of bad character the defendant” No, I that’s she Shaw: heard that what only accuracy used are to be to test heard. credibility the character witness not as substantive evidence of defendant’s you And Prosecutor: did take into good or bad character. your forming opinion of his account reputation quie- for peacefulness and view, case indi- our record tude? of Rule 405 requirements were cates that the the trial prosecutor sought satisfied. The you do mean that? Shaw: What questioning the permission court’s before peaceful Does that sound Prosecutor: al- the defendant’s character witness about quiet you? leged At defense counsel’s worship. satanic Well, I still don’t’ understand what Shaw: hearing request, trial court held outside you saying. are jury’s the issue. presence to consider somebody they If Prosecutor: said that specific which of conduct about instance power, people get kill two needed inquiry to the proposed was relevant quiet peaceful would that sound issue had testified— about which the witness you? community reputation defendant’s No, wouldn’t, A reasonable peacefulness quietude. but I ain’t heard Shaw: prosecu- that. factual basis was established. nothing from him like proof in case was origin Appeals also held tor identified the source and physical torture specific on the record at sufficient to establish instance conduct that the indi- jury-out hearing. Though the character Dr. had testified because Smith *13 only allegations “moder- said he had not heard the caused the witness vidual burns murder, “severe,” pain. worship ate,” physical until after the of satanic than rather prosecutor’s identifying Nonetheless, statement the victim court found the intermediate report torture, of the murder as the source of the to sufficient proof showed mental obviously proof had is some that the incident circumstance be- support aggravating reported been before the murder occurred. had testified that the victim cause Dr. Smith A the record not demonstrate review of does antici- “great degree of distress” suffered specific in prejudicial that the effect of the repeated infliction of the burns pating the stance of conduct on the substantive issues and bruises. outweighed probative impeachment value. its court, agrees with In this the defendant inquiry directly The was relevant to the char Appeals of the Court of Criminal the decision peacefulness quietude acter traits of physical and serious physical as to torture Im about which witness testified. abuse, that the intermediate but asserts mediately following inquiry again in cir- upholding aggravating court erred in properly in charge, its final the trial court of mental torture cumstance on the basis limit permissible structed the as to the testimony that the vic- Dr. because Smith’s pre of the evidence. The ed use “great degree of distress” tim suffered a to instructions. sumed have followed those speculative. Walker, (Tenn.
State v.
910 S.W.2d
contrast,
in-
agrees with the
In
the State
1995);
Lawson,
v.
respect
to
termediate court’s decision with
(Tenn.Crim.App.1985).
The
defendant’s
torture,
mental
but avers that the Court
allowing
claim that the trial court erred
finding
the evi-
Appeals erred
Criminal
inquiry
is without merit.
physical
to establish
tor-
dence insufficient
(i)(5)
AGGRAVATING CIRCUMSTANCE
physical abuse since the
ture and serious
“moderately” painful
evidence of numerous
Sufficiency
A.
of the Evidence
injuries
cumulatively is sufficient
considered
jury imposed
In this
the death
support findings
physical
torture and
to
penalty upon
finding7
its
“[t]he
that
murder
physical
serious
abuse.
heinous, atrocious,
especially
was
or cruel
stated,
has
previously
torture
physical
that
it involved torture or serious
As
phys
beyond
necessary
produce
abuse
that
defined as “the infliction of severe
been
13—204(i)(5)
he
pain upon
§
Ann.
or mental
the victim while
death.” Tenn.Code
ical
39—
(1991).
challenged
alive and conscious.”
appeal,
On
the defendant
she
remains
Williams,
proof
sufficiency
support
this
There no to this rale for a severe is victim, again we do capital prosecution upon is re inflicted eases. The solely upon Dr. quired expert testimony as our conclusion to offer to the not base testimony that victim would have precise pain level of a Smith’s inflicted victim. offered, degree antici testimony great if “a of distress” previ Even such suffered stated, jurors injuries. of various accept pating are ously not bound the infliction Indeed, knowledge expe testimony expert Utilizing witnesses. their common race, the jurors human are free to use their common knowl rience as members evaluating proof judgment experience, jurors edge capable were derived from observation, the victim suffered determining whether and reflection to decide whether beyond when, physical pain torture or serious abuse severe mental over the course of produce body necessary to death.” Without period, six hour her was burned time instruction, home, contends clarifying the defendant beaten in her own with four of her present. sufficiency aggravating circumstance fails young children jury’s support jury’s finding sufficiently discretion and the evidence to channel eligi- depend upon meaningfully narrow the class of death torture does not whether an magical Specifically, the defendant expert witness utters the “se- ble defendants. words physical pain.” phrase relevant contends that the “in that” misleads vere or mental whether, any appellate of torture or question court to believe that act reviewing light beyond necessary physical after the evidence in abuse most serious heinous, State, any produce “especially favorable trier atro- rational death is cious, cruel,” fact could have that without found the existence contends two-step analy- beyond setting out aggravating circumstance a reason- an instruction Cazes, sis, inappropriately find the cir- able doubt. State S.W.2d 253 (Tenn.1994). standard, only proof Applying based of torture or cumstance sup- physical conclude that the is sufficient to serious abuse. *15 jury finding port physical a that both severe disagree. We The in this ease was upon pain and mental was inflicted the victim properly in accordance with the instructed she
while
remained alive and conscious.
language of the statute and the definitions
Williams, supra.
provided in
have re-
We
view,
Moreover, in our
evidence
recently upheld
peatedly and
the constitu-
finding
to support
is also sufficient
a
of “seri
tionality
aggravating
of this
circumstance.
physical
necessary
beyond
ous
abuse
that
to
Odom,
e.g.
According-
See
that
death.
both this Court and the United States Su-
preme
recognized that victim im-
Court have
Jury
B.
Instruction
punishment
pact evidence
relevant
as con
under both the federal
state
The defendant also attacks
admissible
pun-
it
fusing
language
aggravating cir
constitutions. Because
is relevant to
ishment,
argues
impact
especially
the State
that victim
“[t]he murder was
cumstance —
heinous, atrocious,
evidence is admissible under
Tennessee
cruel
involved
impact
victim
argument regarding
statutory
provides
which
that evi- dence and
scheme
may
presented
any matter
While acknowl-
dence
be
“as to
violated Booth and Gathers.
punishment.”
the court deems relevant
of victim
irrelevance
edging the technical
argues
probative
Booth,
The State also
this Court held
impact
under
evidence
value of the evidence
this case was not
Payne
argument
the evidence and
substantially outweighed by
prejudicial
its
constitutionally unaccepta-
“did not create
effect.
imposition
arbitrary
ble risk of an
beyond a
harmless
penalty,
death
and was
govern
The constitutional standards
Id.,
at 18.
reasonable doubt.”
ing
impact
argument
evidence and
at a
arguments
respect
prosecutor’s
With
to the
capital sentencing proceeding have varied
held,
are
Payne,
“[w]e
this Court
greatly
past
years.
over the
In Booth
eleven
argument
opinion
prosecutor’s
496, 504,
Maryland,
482 U.S.
S.Ct.
personal respon-
relevant to this defendant’s
2529, 2534,
(1987),
889 unfair, fundamentally extinguish the trial which a defendant chose to renders life Fourteenth family Due Clause demonstrating the to the victim’s Process loss for re- provides a mechanism society which have from the resulted Amendment 825, 111 at at S.Ct. Payne, Payne, at 501 U.S. defendant’s homicide.” 501 U.S. lief.” (internal 822, 111 at S.Ct. citations and omitted). Payne reit- quotations The Court Therefore, Payne proposi- stands for that, “justice, though to the ac- erated due not Eighth does tion that Amendment cused, is The con- due to accuser also. impact evi- of victim preclude the admission cept must till it of fairness not be strained is argument about the prosecutorial dence or keep naiTOwedto filament. We are to Moreover, Court decisions evidence. Payne, 501 U.S. at balance true.” also Payne, have subsequent rendered Snyder (quoting v. Massachu- S.Ct. prose- impact evidence held that victim 330, 338, setts, 97, 122, 54 S.Ct. U.S. precluded by argument is cutorial (1934)). L.Ed. 674 Shepherd, State v. Tennessee Constitution. Therefore, overruling decisions (Tenn.1995); State Gathers, Payne stat-
Booth the Court (Tenn.1994). Brimmer, 876 ed: contention that Accordingly, the defendant’s now of the that a argument
We are view is impact victim evidence and properly conclude that for to as- by the and state constitutions barred federal meaningfully sess the defendant’s moral merit. without blameworthiness, culpability and it should next contends that The defendant sentencing phase it at have before impact is inadmissible under evidence specific harm evidence caused capital sentencing statute. Tennessee’s a legitimate defendant. State has in- permits responds the statute all counteracting mitigating terest in evi- punishment and victim relevant to evidence dence which defendant is entitled to impact is admissible because it in, put by reminding the sentencer punishment. relevant to
just as the should murderer be considered *17 individual, as an so too the victim is an of this issue begin We our consideration represents unique individual whose death language Tenn.Code with the of statute. society particular to to loss and his 39-13-204(c) (1997 provides as Repl.) §Ann. family. By turning the victim into a face- follows: stranger penalty phase less at the of a sentencing proceeding, evidence trial, capital deprives Booth of may any to matter that presented as be may full force and moral of its evidence punish- relevant to the the court deems having prevent from before all include, may be limited but not ment and necessary information determine the to, nature and circumstances of proper first-degree punishment for a mur- character, crime; back- the defendant’s der. condition; ground history, physical and 825, Payne, 501 at 111 at 2608 U.S. S.Ct. any tending to rebut evidence establish omitted). (internal quotations citations and enumerated aggravating circumstances Therefore, if a the Court held that (i); any tending evidence subsection of victim permit chooses to the admission mitigating fac- any or rebut establish argument, impact prosecutorial evidence the court Any which tors. such evidence Eighth per Amendment erects no se “the on the issue probative to have value deems at 111 at Payne, 501 U.S. S.Ct. bar.” regardless may punishment be received admissibility rules of evi- under the of its dence; ac- is However, provided that Payne not admis- did authorize any to rebut opportunity a fair impact all corded any evidence sion Howev- so Indeed, hearsay statements admitted. argument. noted that Court er, construed shall not be this subsection impact is intro- in the event victim any evi- the introduction unduly prejudicial that it to authorize is so duced “that 890 cases). Indeed, (Tenn.l994)(citing
dence secured
violation of the
constitu-
tion of the United States or the constitu-
recognized
carefully
have
that evidence
limit
tion of Tennessee.
sentencing
ed to allow “individualized
de
upon the defendant’s
language
termination” based
of the statute is
its
broad. On
appears
face the statute
the circumstances of the crime
authorize
character and
any
Nichols,
admission of
reliable evidence that
constitutionally required.
punishment,
only
relevant
with the
re-
opined
at
have also
S.W.2d
731. We
quirement being that
the defendant be ac-
capital sentencing jury
once a
finds that
opportunity
hearsay
corded a fair
to rebut
legislatively
defendant falls within the
de
statute,
statements. The
consistent with
category
persons eligible
fined
for the
mandate, permits
constitutional
admission of
penalty,
death
is free to consider a
evidence,
mitigating
all relevant
whether or myriad of factors to determine whether
category mitigation
not the
in the
is listed
appropriate punishment to the
death is the
Cazes,
statutory scheme. State v.
875 offense and the individual defendant. Nich
(Tenn.1994)
S.W.2d
(discussing
cases).
ols,
(citing
at 731
In our
Carolina,
McKoy
433, 442,
v. North
494 U.S.
view,
impact
of the crime on the victim’s
(1990)
1227, 1233,
110 S.Ct.
891
2607;
822,
however,
111
at
at
S.Ct.
Payne,
not
501 U.S.
emphasize,
We
830,
2611
111
at
501
at
S.Ct.
any
impact
prose
Payne,
U.S.
and all victim
evidence
State,
(O’Connor, J.,
Cargle
sentencing
concurring);
v.
capital
at a
cution wishes
offer
806,
(Ok.Ct.Crim.App.1995).
hearing
Although such evi
P.2d
826
is admissible.
909
by
Eighth
regarding
entirely precluded
proof,
not
evidence
types
dence is
Of these
Amendment,9
may
impact
be
on the
impact
victim
evidence
of the murder
the emotional
unduly prejudicial
closely
“that
so
introduced
most
scruti
family should be
victim’s
unfair,”
fundamentally
it
greatest
renders
trial
threat to
poses
nized because
Due
implicating
thus
Process Clause
prejudice,
undue
process and risk of
due
Payne,
Amendment.
501
Fourteenth
particularly
proof is
if no
offered
825,
Moreover,
111
U.S. at
S.Ct.
909
types
impact. Cargle,
of victim
other
any
sought
other
to be admit
Parks,
evidence
830;
494 U.S.
P.2d at
v.
cf. Saffle
ted,
may
impact
the trial court
exclude victim
1257,
484, 493,
415
108 L.Ed.2d
110 S.Ct.
probative
substantially
proof if its
value is
(1990) (“It
very
recon
be
difficult to
would
by
outweighed
prejudicial
its
effect. Tenn.
allowing
a rule
the fate of defendant
cile
Therefore,
impact
R.
403.10
victim
evi
Evid.
jurors’
vagaries
particular
turn on the
threatens to render the trial
dence which
longstanding
our
sensitivities with
emotional
fundamentally
poses
unfair or which
a dan
all,
that,
capital sentencing
recognition
above
prejudice
ger
appropriate
of unfair
is not
reliable, accurate,
nonarbi
be
must
judge.
should be excluded
the trial
However,
bright-line
no
trary.”)
there is
836,
Payne,
troduction of this victim evidence transcript, approximately pages five way no relieves the of its burden to concisely the fi- clearly and related Cannon prove beyond a reasonable doubt at least nancial, emotional, physi- psychological, aggravating one circumstance which has the victim’s impact cal of this murder on alleged. vic- been You consider this family. Although mentioned the emo- she impact determining tim murder, impact focused tional Cannon appropriateness penalty only of the death financial, physi- psychological, you if first existence of one or find impact the defen- cal of the crime. Because aggravating more circumstances has been acquainted with dant this case had been proven beyond a reasonable doubt evi- month, he knew that the victim for about a independent impact the victim dence from young chil- single of five she was mother evidence, aggravating find that also knew that four dren. The defendant circumstance(s) outweigh finding found apartment in the were the victim’s children mitigating of one or more circumstances of the murder. at the time beyond a reasonable doubt. required prove is not in substance The State This instruction should be used knowledge specific has capital trials where vic- that a defendant all future murder admissibility family to secure impact introduced and about a victim’s tim evidence has been impact As stated Jus decision is of victim evidence. is effective from the date this *20 Payne: 828; concurring opinion in in a Cargle, 909 P.2d at see tice Souter released. See youngest living child had been trial. 12. The victim’s paternal grandmother at the time of with his danger outweighed far proof in this case consequences.
Murder has foreseeable impact happens, always prejudice. victim When it it is to distinct of unfair its individuals, vic- happens and after it other violated nei- admitted in this case Every are left tims behind. defendant process, nor the ther the constraints of due knows, compe- if endowed with the mental evidentiary Tenn. R. strictures of Rule responsibility, for criminal that the tence Evid. by he will take behavior life homicidal However, argument prosecutor’s himself, unique person, is that of a like and of purpose and function about probably has person to be killed pertinent impact evidence was erroneous. associates, “survivors,” suf- who will close part argument was as follows: deprivations from the vic- fer harms and that tim’s death. Just as defendants know in front of proof no he did it There’s ciphers, they they are not faceless human bleeding, just her left there them. He their victims are not valueless know that knowing young those four babies were just fungibles appreciate as defendants house a mother. He didn’t with dead relationships dependencies the web of know, they try guess, going I to that were live, they they their in which know that mommy try to shake her out wake to islands, victims are not human but individ- No, maybe of and the the blood brains. children, spouses parents uals with or testimony. you But saw his didn’t know. Thus, dependents. a de- friends or when care. didn’t care either. He didn’t He kill, or risk fendant chooses to to raise the Well, you weigh do this? have you How death, necessarily this of a victim’s choice impact That’s to at the crime. look of being to a whole human and threat- relates people testify here to about why the are others, may of who ens association Cannon, life, [w]e her Miriam because distinctly hurt. defen- The fact that the that, while forget in these trials sometimes may dant not know the details of a victim’s here to take care we’re of defendant characteristics, or life and the exact identi- him, justice provide there is some- may ties and needs of those who survive just this it is not one else in any way further should not obscure the babies, There those Miriam Cannon. are ‘unique’ always that death to a facts is orphan are children. There the rest those individual, group and harm to some society family. is the rest her There consequence survivors is successful deprived that has been Miriam Cannon. so homicidal act foreseeable as be virtu- particular are in this There lots victims ally inevitable. case. Payne, at 501 U.S. S.Ct. family like would Now the defendant’s complete agreement we are in While right. against, him. All Balance that see analysis, opinion we are also of the little everybody understand that doesn’t consider the defendant’s trial court would the children Térrica and rest of knowledge family specific about the victim’s mother, Sure that like to their too? see evaluating probative value of victim when They Eveiybody knows that. balances. impact proof appropriateness on the like them as well. would to be able see determining pro- if penalty death and when person who is And the relatives by substantially outweighed bative value you will facing death electrocution tell view, prejudicial probative In our effect. it please spare his life. Wouldn’t have particularly great, where the value [of nice if Ms. and the rest been Cannon ease, shows, did beg family could have been there the] specific knowledge about victim’s They life? could have looked for Miriam’s family when the crime was committed. Ac- said, “Please, my kill at him don’t holding cordingly, have no hesitation her, but daughter. and torture Go ahead impact probative of the victim value kill don’t her.” substantially proof in case out- the chance to. We prejudice. they get But didn’t danger of unfair weighed chance, get give but doesn’t him that she contrary, probative value To the *21 (4) you go that chance. So when to balance improper cumulative effect of the aggravating against any circumstances conduct and other errors the rec- mitigation, ord; that remember it had been if possible they beg- would have been there (5) strength the relative and weakness of ging daughter’s their Those chil- for the case. life. begged dren would have their mother’s Though prosecutor’s argument they given opportunity. been that life miseharaeterized the function of victim im you against So mitiga- balance that evidence, pact argument based tion. proof properly evidence, into admitted says Defense counsel he shows re- prosecutor there is no indication that morse- He has no remorse. There is Moreover, jurors acted in bad faith. no mitigating circumstance of remorse. were instructed the trial court the final only There aggravating is factor of charge sentencing hearing at the apply ours, pain agony torture and provided by law as the court. trial court family. this had on the effect jurors they also instructed the could not impose penalty a death without a unanimous added). (Emphasis finding statutory aggravating cir Dissenting in Ap- Court Criminal beyond proven cumstance had been a reason peals, Judge recognized Wade argu- that this outweighed mitigating able doubt and beyond ment crossed permissible the line proof beyond Again, a reasonable doubt. latitude in closing afforded counsel when the presumed to follow the instructions of prosecutor impact characterized the victim Walker, the trial court. S.W.2d aggravating evidence as an circumstance and Considering complained in light the error urged weigh and balance the of the including, previously entire impact victim against mitigating evidence discussed, strength to estab proof. is, Although impact victim circumstance, statutory aggravating lish the said, previously as we have one of those opinion improper we are of the myriad jury may factors which the consider prosecutorial appear argument does not in determining appro- whether death is the have affected the verdict to the defendant’s priate punishment, carry it does not the force Therefore, prejudice. the error does not re aggravating and effect of an circumstance quire reversal. sentencing prosecutor’s calculation. The argument erroneously in this case character- PROPORTIONALITY REVIEW ized the impact aggra- evidence as an next We must consider whether vating weigh against mitiga- circumstance to dispro the defendant’s sentence of death is proof. tion portionate penalty imposed to the in similar cases, considering the nature of the crime
To determine
this errone
whether
§
and the defendant. Tenn.Code Ann.
39-
argument
grounds
ous
constitutes
for rever
13-206(c)(4) (1997 Repl.).
If this case is
sal,
improprie
we must consider whether the
“plainly lacking in circumstances consistent
ty
prejudice
“affected the verdict to the
with those in similar cases in which the death
Bigbee,
the defendant.”
at 809
penalty
previously
imposed,” the
has
been
(quoting Harrington
v.
Tenn.
disproportionate.
sentence of death is
(1965)).
Factors rele
(Tenn.1997).
Bland,
vant to that determination include:
However,
dispro
a sentence of death is not
(1)
complained
the conduct
of viewed in
portionate merely because the circumstances
light of the facts and circumstances of the
offense are similar to those
another
ease;
offense for which the defendant has received
(2)
the curative measures undertaken
role, in
a life sentence.
Id. at 665. Our
prosecution;
the court and the
conducting proportionality
review not
(3)the
prosecutor in making
intent of the
assure that a sentence “less than death was
arguments;
improper
imposed
never
in a case with similar charac-
*22
knowledge that
obviously
Instead,
duty
had
Id.
our
to assure
the defendant
teristies.”
“is
Though
helpless.
not exten-
victim was
no
death sentence
affirmed.”
the
aberrant
sive,
nineteen-year-old
a
defendant had
the
Id.
The record
juvenile
record.
prior
criminal
comparing simi
choosing
In
and
cooperated with
that the defendant
reflects
variables,
cases,
many
some
lar
we consider
expressed
apprehension, and
police after his
(2)
(1)
death;
include,
which
the means of
of
trial. With re-
for the murder at
remorse
(3)
death;
the manner of
the motivation for
rehabilitation, the
spect
capacity
for
(5)
(4)
death;
killing;
place
the
of
the
the
jury
planned
he
told the
defendant
circumstances,
similarity
in
of the victim’s
if
high
sen-
complete his
school education
conditions,
cluding age, physical and mental
Considering
imprisonment.
tenced to life
during
killing;
treatment
and the victims’
defendant,
of
crime
the nature
(6)
presence
premeditation;
the absence or
of
imposition of the death
we conclude that
(7)
presence
provocation;
or
of
the absence
senseless, torturous, and cru-
penalty for the
(8)
justification;
presence
the absence or
twenty-year-old
woman is
murder
this
el
(9)
injury
to and effects on nondece-
imposed
the penalty
disproportionate
not
reviewing
victims.
Id. at 667.
dent
When
cases,
places
and that
murder
in similar
this
defendant,
the characteristics of the
we con-
for whom
Nesbit into the class of defendants
(1)
prior
sider:
the defendant’s
record or
punish-
penalty
appropriate
the death
(2)
prior
activity;
criminal
the defendant’s
review,
upon
ment. Based
our
we conclude
(3)
race,
age,
gender;
defendant’s
following
in
the death
that the
eases which
(4)
condition;
mental,
physical
or
emotional
imposed
many similar-
penalty has been
have
or
in the
defendant’s involvement
role
this
ities with
case.
(5)
murder;
cooperation
the defendant’s
with
(6)
(7)
authorities;
remorse;
(Tenn.
the defendant’s
Bland,
In State v.
tence death Ave., Poplar Suite fashion, supports, as trary that the evidence Memphis, TN 38103-1947 discussed, jury’s finding previously Mark Ward W. circumstance, statutory and the aggravating aggravating circum- jury’s finding that Ronald S. Johnson outweighed mitigating circumstances stance Betty J. Thomas beyond Ann. a reasonable doubt. Tenn.Code *24 Public Defenders Assistant (1997 13—206(c)(1)(A)—(C) Repl.). § We 39— Jefferson, 147 Suite 900 assignments the defendant’s have considered Memphis, TN 38103 have mer- of determined that none error and Appellee For respect specifically not it. to issues With herein, affirm the decision of Walkup addressed John Knox by Appeals, Criminal authored the Court of Attorney Reporter General fully by Judge Hayes, joined in David G. Cauley John P. joined par- Judge M. Barker and William Attorney Asst. General tially by Judge Gary por- R. Wade Relevant Pkwy. Robertson 450 James opinion published are hereafter tions of that Nashville, TN 37243-0493 of appendix. as The defendant’s sentence William Gibbons by is affirmed. sen- death electrocution Attorney General District provided out as law tence shall carried day the 29th January, 1999 unless of D. Henderson Thomas or other otherwise ordered this Court Nichols Jennifer proper authorities. Attorneys Asst. District General Poplar Ave. 201 ANDERSON, HOLDER, J., C.J., and Memphis, TN 38103 concur. 22,1997 April FILED: OPINION BIRCH, J., separate dissenting see CONVIC- FIRST DEGREE MURDER opinion. AF- DEATH TION AND SENTENCE FIRMED APPENDIX Haynes David G.
(Excerpts from the Court Criminal Judge Decision) Appeals’ IN THE CRIM- TENNESSEE COURT OF OPINION INAL APPEALS ANALYSIS
AT JACKSON 1996 SESSION NOVEMBER OF THE EVIDENCE SUFFICIENCY issue, appellant contends his first Tennessee, Appellee, at trial is insuffi- that the evidence adduced of law sustain cient a matter guilt penal- in both the returned verdicts Nesbit, Clarence C. appel- Specifically, ty phases of trial. NO. 02c01-9510-CR-00293 C.C.A. presented the evidence argues lant establish, beyond a reasonable failed to County Shelby doubt, premedita- requisite elements Bennett, Judge T. Honorable Arthur Additionally, ap- and deliberation. tion gunshot single wound pellant argues that the Murder) Degree (Capital First support head does to the victim’s Appellant: For the atrocious, “heinous, application of the Ann. Tenn.Code aggravating factor. cruel” AC. Wharton 13—204(i)(5). § District Public Defender 39— 898 challenge
When there is a establishing the sufficien the State has the burden of first evidence, cy convicting Brown, degree this court must murder. 836 S.W.2d light review the degree evidence in the most favor First murder not committed prosecution able perpetration statutorily and determine designated crime “any “intentional, whether requires premeditated rational trier fact have could found the essential elements of killing the crime deliberate of another.” Tenn.Code beyond 39-13-202(a)(l) (1991). Thus, § doubt.” reasonable Jackson v. Ann. 307, Virginia, 319, 2781, 443 prove premeditation U.S. 99 S.Ct. State must and delibera 2789, (1979); Cazes, 61 degree L.Ed.2d 560 State v. tion to offense to murder. raise the first (Tenn.1994), own, Br S.W.2d at 543. cert. de Premedita nied, previously design U.S. tion “a S.Ct. necessitates formed (1995); 13(e). kill,” West, L.Ed.2d 644 R.App. Tenn. P. intent to State v. (Tenn.1992), do not reweigh We or reevaluate the evi and “the exercise *25 dence; these by are issues resolved judgment,” the trier reflection and Ann. Tenn.Code (1991). 39-13-201(b)(2) Cabbage, 832, § of fact. State v. 571 S.W.2d re Deliberation (Tenn.1978). Furthermore, guilty quires 835 ... purpose ver a “cool formed the Brown, testimony dict accredits passion provocation.” the of absence witnesses for of State, (citations presumption the and a guilt of 836 internal re S.W.2d at 538 and omitted); places § the presumption quotations of innocence. Tenn.Code Ann. 39- State Grace, 474, (Tenn.1973). 201(b)(1); v. 493 Sentencing S.W.2d 476 Com Commission 13— appeal, ments, § On the Ann. Delib State entitled to the 39-13-201. Tenn.Code strongest legitimate reflec requires period view of the eration “some of evidence and also the may during all reasonable inferences that be tion the mind is free from drawn which Harris, 54, Brown, therefrom. State v. 839 S.W.2d influence of 836 S.W.2d excitement.” (Tenn.1992). appellant 538; § 75 The bears Ann. 39-13- the see Tenn.Code also 201(b)(2). proving burden of the evidence was support to insufficient the verdict in his jury may engage Again, although the not 913, Tuggle, case. State v. 639 S.W.2d 914 Bordis, speculation, v. 905 S.W.2d State (Tenn.1982). 214, appeal (Tenn.Crim.App.), perm, 222 to denied, (Tenn.1995), jury may pre These applicable findings rules are to the infer predicated guilt upon evidence, direct from the circum cir meditation and deliberation evidence, surrounding killing. cumstantial or a v. combination of stances the 1, (Tenn.Crim.App.1993), direct Gentry, both and circumstantial 3 evidence. 881 S.W.2d (Tenn. denied, (Tenn.1994); 93, pe Carey, appeal State v. 914 S.W.2d 95 to rm. (Tenn. Brown, State, 175, Crim.App.1995). Taylor See also State v. S.W.2d 178 v. 506 (“the 530, (Tenn.1992) supreme 836 S.W.2d 541 has de Crim.App.1973). Our court cases long may recognized necessary have be ele lineated several circumstances deliberation, first-degree may murder and premeditation ments be shown indicative of evidence”). deadly by weight including weapon upon circumstantial The of a the use “ given victim, killing evidence fact that the was circumstantial and unarmed ‘[t]he cruel, evidence, particularly by defen inferences to be from such declarations drawn victim, kill the extent to dant of his which circumstances intent killing making for guilt preparations are consistent with and inconsistent before the Brown, innocence, questions primarily purpose concealing are the crime. ” State, jury.’ also Marable v. 203 Tenn. 836 S.W.2d at This court has 541-542. (citation (1958) omitted). recently 457 noted several factors from which elements, jury may including In this both infer two direct circumstantial by jury’s planning activity was for the before evidence available consid killing, concerning the defendant’s eration. evidence
motive, Bor killing. and the nature of the dis, 222 2 PHASE (quoting 905 W. LaFave GUILT S.W.2d at Scott, Jr., proven, Law a homicide been it is and A. Substantive Criminal Once has (1986)). murder, degree § presumed to 7.7 be second apartment. signifi- prior his visit to the victim’s argues only appellant The that the separate distinct appellant The inflicted premeditation delibera- cant evidence of over a six i.e., injuries upon an unarmed victim presented, tion circumstantial evidence appel period preceding hour her death. victim, relating alleged to the torture of the one of calmness follow lant’s demeanor elements. is not sufficient establish those immediately after ing the murder. Calmness that, assuming that evidence He asserts even cool, dispas of a killing be evidence a motive for the mur- of torture establishes West, sionate, premeditated murder. der, standing alone is not sufficient to motive Browning, v. (citing S.W.2d at premeditation or delibera- establish either (Tenn.Crim.App.1983); Sneed Moreover, factors, applying the tion. Bordis (Tenn.Crim. injuries that the to the victim contends Moreover, App.1976)). shows inflicted torture not to the are relevant weapon appellant hid the murder clearly killing. nature torture scene in a different and returned victim. The occurred before death The fact that the concealment oc vehicle. expert testimony appellant also relies killing “sup immediately after the curred suggesting usually inflict- that torture is ports theory appellant commit Additionally, ined to cause death. order passion].” killing [in ted the the absence appellant clearly contends that the evidence Id. planning appellant, reflects lack of *26 because, although brought appellant record, entire we con- Having reviewed the gun him to im- apartment, the victim’s a rational trier of fact could have clude that arrival, following mediately his he unloaded premeditated found the essential elements of gun placed top on beyond it and bullets degree first a reasonable murder 13(e). issue, refrigerator. P. This R.App. doubt. Tenn. therefore, merit. is without appellant
The case law to cites California evidence, argument support his PHASE PENALTY motive, i.e., arguably which could establish a torture, by is insufficient to sustain itself OF APPELLANT’S INTRODUCTION degree People a first murder conviction. See BEEPER AND MONEY 1210, Cal.Rptr. Pensinger, v. 52 Cal.3d 278 Next, appellant contends that the trial 640, (1991); People P.2d v. 805 899 erroneously introduction permitted court Anderson, 15, 550, Cal.Rptr. 70 Cal.2d 73 447 beeper in into of his and $602.00 evidence (Cal.1968). P.2d 942 The forth in factors set cash, person were on at the which found his Bordis, however, merely provide guidelines Specifically, argues time his arrest. reviewing ques- The court. ultimate of these items was irrele- the admission evidence, tion remains whether the circum- unduly sug- prejudicial, vant because direct, support stantial or can a rational appellant gested to the that the was jury’s finding beyond a reasonable doubt. drug activity. illegal in Tenn. involved Banks, 403; v. see also State R.Evid. response appellant’s argument, to the (Tenn.1978). S.W.2d the State asserts that the evidence does in prove beyond fact a reasonable doubt that initially sought The to introduce State appellant planned the murder killed “simply to what show was contested plan. in with his The the victim accordance any appellant] found on and discount [the contrary appellant’s argues, State robbery appellant The made con- motive.” claim, part killing of a “torture that the was objection, was temporaneous which over- period sequence long ruled, over a that occurred was claiming that the evidence irrele- jury, when premeditation. time.” The evidence before Under vant to the issue light in the most favorable the Rule “all evidence is admissible viewed relevant beyond except ... which supports guilty provided verdict Evidence 401 defines not admissible.” Rule The establishes that relevant is reasonable doubt. having any “evidence gun immediately relevant evidence as appellant obtained a tendency any in make the existence of fact turned a different vehicle and was about to consequence again appre- that is leave the scene when he was to the determination find no error in the probable probable hended. We submission action more or less jury. of this instruction to the than it would without the evidence.” argues appeal The State also that the CLOSING ARGUMENT DURING GUILT PHASE appellant’s testimony adequately justified his appellant prose- also contends that the possession beeper currency. Both by cutor committed reversible error inter- question items in were introduced jecting opinions personal during closing during appellant its case-in-chief. The argument. The that the ar- State contends subsequently testified that he went to the or, alternative, gument proper, in the was apartment night victim’s before the mur- merely harmless error. response “beep” der in to a he received from Closing arguments important are tool cash, Regarding the victim. the $602.00 parties during process. for both the trial appellant testified that he had been sav- Consequently, attorneys usually given are ing money he had earned from several odd scope argu wide latitude of their jobs. ments, Bigbee, see 885 S.W.2d at agree We the introduction of the courts, turn, trial are accorded wide dis beeper and in cash was not relevant $602.00 arguments. cretion their control of those any to the existence of issue that the Zirkle, See State v. and, thus, required was im- to decide denied, (Tenn.Crim.App.), perm, app. conclude, however, properly admitted. We (Tenn.1995). Moreover, a trial court’s find appellant unfairly preju- was not reversed, ing absent an abuse of will not be Nothing diced their admission. Payton, that discretion. suggests appellant record before us (citations (Tenn.Crim.App.1989) illegal drug activity. was involved in omitted). discretion, scope Such howev appellant’s testimony sufficiently explained *27 er, completely is not unfettered. To deter possession his of the contested evidence. Ac- prosecutor mine whether the committed re any cordingly, admitting we find that error in during closing argument, versible misconduct currency beeper the and was harmless. reviewing the court must ascertain “whether 36(b); R.App. Tenn. P. Tenn. P. R.Crim. improper the conduct could have affected the 52(a). prejudice verdict to the of the defendant.” State, 338,
Harrington v.
215 Tenn.
385
758,
(1965);
Judge
INSTRUCTION ON FLIGHT
759
see also
v.
S.W.2d
State,
340,
(Tenn.Crim.App.
appellant
The
contends that the trial court
539
343
S.W.2d
1976).
in
incorrectly provided
jury
Five factors should be considered
the
with an instruc-
1)
making
the conduct
this determination:
flight. Specifically,
argues
tion on
he
of,
complained
light
viewed
facts
negat-
to
crime
his ultimate return
the
scene
2)
case;
the cura
and circumstances of the
any
to flee.
ed
inference that he intended
by the court and
tive measures undertaken
asserts that
the instruction was
The State
3)
prosecu
the
prosecutor;
the
the intent of
properly given, noting that
the instruction
statement; 4)
making
improper
tor
the
itself,
provides
flight, in
not
and of
improper con
the cumulative effect of the
guilt.
evidence of one’s
The trial court’s
record;
any
other errors
the
duct
flight
on
mirrors the instruction
instruction
5)
strength
relative
or weakness of the
§
found in T.P.I. —Crim.
37.16. The court
Buck,
v.
609
ease. State
S.W.2d
appel-
instructed the
that whether the
(Tenn.1984); Judge, 539
at 344.
S.W.2d
solely
question
lant fled was a
for their deci-
argument,
they
flight,
During
closing
sion that
need not infer
the State’s
colloquy
prove guilt.
following
occurred:
flight
insufficient to
alone was
case,
hope
In
the evidence demonstrated that
I
the end of
this
MR. HENDERSON:
at
trials,
my
guess,
I
appellant
indeed leave the scene of
all of this trial and
other
did
that,
say
Apostle
I
Paul wrote—
weapon. He re-
can
as
the murder and hide the
appel-
unless
Honor,
error
put-
constitute reversible
Your
MR. JOHNSON:
they had some
clearly
lant can
establish that
closing
personal
into
ting his
observation
Stephenson, 878
on the verdict.
effect
argument.
Kirkendoll,
541;
at
S.W.2d
my personal
It’s not
MR. HENDERSON:
religious
no
to
254.
reference
feelings, Your Honor.
was
We
this isolated
law
made.
conclude
This it [sic]
THE COURT: Overruled.
in this
upon
no affect
the verdict
remark had
may
argument.
proceed, Mr.
You
Moreover,
comparison by
no
case.
find
Henderson.
Apostle
Paul.
prosecutor
of himself to
I
done what
can
MR. HENDERSON:
I’ve
This issue is without merit.
you,
as much of it
present
the truth
possible
long
as is
after
offense
OF PHOTOGRAPH
INTRODUCTION
given
nature
the crime
that the introduc-
appellant
The
contends
you
say
I
that I can
evidence.
submit
family photograph
of a
of the victim with
tion
fought
good fight, I
that I
have
have
guilt
during
phase
two of her children
course,
my
kept
I have
the faith.
I
run
solely
was
introduced
trial
irrelevant
was
you
say
able
12 to be
same
want
jury.
inflaming the
purpose
for the
Addi-
you.
it is
Thank
when
over.
tionally,
photograph had
he contends that the
Closing
temperate,
arguments must be
jury’s
on
prejudicial
a
effect
determina-
upon
introduced dur-
must
based
during
sentencing phase of the trial.
tion
trial,
pertinent
ing
and must be
to the issues
policy
Tennessee courts have followed
being tried. Coker v.
911 S.W.2d
liberality
photographs
the admission
denied,
(Tenn.Crim.App.), perm,
app.
Banks,
criminal
v.
both civil and
cases. State
(Tenn.1995);
Tyson,
(citations
(Tenn.1978)
(Tenn.Crim.App.1980).
prosecutor
omitted).
policy
into
rule
This
translates
opinion,
express personal
must
belief
lies
admissibility
photographs
“the
qualifies
a misconduct
but whether that
Id.
of the trial court.”
within the discretion
specific
depends upon
terminology
often
respect,
“ruling, in this
will
The trial court’s
Coker,
appel-
used.
203
755
our
court held
at 608. Absent
S.W.
necessary
generally
error
benefits the defendant
that the evidence
“to establish
Cazes,
require
875
does not
reversal.
S.W.2d
corpus delicti in
homicide
show
[a
case] must
Smith,
1,
267;
at 15
at
State v.
857 S.W.2d
being
a human
the life of
has been
(Tenn.1993).
appellant con-
taken,
Although the
question
which
involves the subor
harmless,
has
held
cedes
this issue
been
inquiry
identity
per
dinate
as to the
supreme
disagrees
with our
court
Thus,
charged
son
to have been killed....”
Specifi-
to him.
this error is one “beneficial”
case,
present
required
in the
cally,
this “serves to
appellant
claims
case-in-chief,
prove,
person
that the
its
mitigation, empha-
undermine
actual
[his]
person
killed was the same
named in the
jury
mitigating
number of
sizes for the
indictment.
Homicide
See also
C.J.S.
missing from the
circumstances
(1991); Annotation,
§ 170
identi
Homicide:
distinction between
highlights
further
person
victim as
named in indict
fication of
non-statutory mitigating fac-
statutory and
722,
information,
ment or
86 A.L.R.2d
tors.”
(1962). Thus, employing
espoused
the test
Banks,
949,
we ñnd no error in
previous
supreme court’s
In view of our
during
photograph
the admission of the
any showing
prejudice,
rulings, and absent
See,
guilt phase
e.g.,
of the trial.3
State v.
is without merit.
conclude
this issue
we
Scott,
(Tenn.Crim.App.
Dicks,
1981);
THEDEATH
But see
OF
CONSTITUTIONALITY
denied,
(Tenn.),
PENALTYSTATUTE
cert.
U.S.
(1981)
(pictures
102 S.Ct.
Next, (6) appellant verdicts; contends that the trial returning guilty the defendant by charg- judge committed reversible error opportunity to address is denied the factors, parole ing statutory mitigating misconceptions all of the about jury’s popular incarceration, deterrence, relying though appellant eligibility, even was not cost of *29 (7) execution; jury Only is upon all of them in his defense. those and method to a life unanimously agree by raised the evi- instructed it must mitigating circumstances Buck, sentence, being told prevented from charged. 670 and is dence should be S.W.2d alive, alone statements say a able doubt and the defendant’s that was bom was material child Morgan v. element. State element of the offense of murder. See State, are not sufficient to establish 417, 433, (1923). 557, (Tenn.Crim. Tenn. 256 S.W. 434 148 Shepherd, 564 v. 862 S.W.2d being” phrase creature in has "reasonable App.1992). application current criminal code. The no to our killing "anoth criminal code defines the 1989 identity also recognize proof of is We that 3. being. include a viable fetus of a human er” to rules, and, governed by evidentiary where the such, (1989). § 39-13-214 As Tenn.Code Ann. already proven, identity further has been victim’s being is no of a reasonable creature therefore, and, proof may inadmis- be cumulative longer necessary. identity, The deceased’s how 403. sible. See Tenn. R. Evid. Indeed, ever, remains a material element. corpus proved beyond must be a reason delicti
903
(8)
verdict;
Barker
the effect of a
William M.
non-unanimous
/s/
Barker,
juries
William M.
fail to
courts
instruct
on mean-
Judge
circumstances;
ing
mitigating
function
(9)
deprived making
the final
is
Justice,
BIRCH,
dissenting.
(10)
penalty;
decision about the death
part
respectfully
I
from the
must
dissent
is
argument
denied the final
dur-
concerning
majority opinion
victim
(11)
sentencing phase;
ing the
electrocution
acknowledge
impact
I
evidence. Because
(12)
punishment;
is cruel
unusual
Tennessee,
808, 111
Payne
501 U.S.
v.
appellate
process
penalty
review
in death
(1991), controls,
2597,
Boyd,
gravating weighed against Appellee, factor to be STATE majority mitigating proof. concedes argument was error but finds that that the PIKE, Appellant. Gail Christa appear the error not to have affected did prejudice. verdict to the defendant’s Tennessee, Supreme Court I,like Wade, Judge conclude that cannot at Knoxville. argument, considered with the State’s 5,Oct. 1998. testimony, lengthy impact did not af- stating, I draw no fect the verdict. so Rehearing Nov. Denied imposed. regarding penalty conclusions only I that a be allowed to find should penalty under the correct sen-
reconsider
tencing guidelines. I remand this case would hearing. sentencing
for new ON PETITION
OPINION
FOR REHEARING rehearing for have been filed on
Petitions of both the Nesbit.
behalf Clarence grant rehearing
The State asks the Court to capital that our review in cases is
and hold only those issues identified
limited 39-13-206(c)(l)(1997 § Ann.
Tenn. Code
Repl.). opinion initial ade- We decline. The
quately this issue. addressed argues opinion of
The defendant only justices four
the Court is invalid because justices
participated in decision. Three quorum may sit as a Court
constitute a judgments. Trust and render valid Radford Co., 126, 137,21 S.W.
Co. v. Lumber 92 Tenn. (1893). justices participated in the Four constituting
decision in this with three majority. judgment is valid. rehearing
Accordingly, petitions the defendant are
filed the State and
denied, equally between the with costs taxed and the defendant. the views ex- Birch adheres to
Justice dissenting opinion. original
pressed in his Drowota, F. III Frank
/s/ Drowota, III, Frank F.
Justice HOLDER, J.,
ANDERSON, C.J., and
concur. Justice,
REID, participating. Special