*1 Tennessee, Appellee, STATE
Sidney K. PORTERFIELD Gaile
Owens, Appellants. Tennessee,
Supreme Court of
at Jackson.
Jan. 1988.
Rehearing Denied Feb. 1988. 16,1988. May
Certiorari Denied
See
W. Mark Asst. Defender, Memphis, Sidney Public for Port- erfield. Stein, Memphis, Marty,
Brett James 0. K. Gaile Owens. Report- Cody, Atty. W.J. Michael Gen. & er, Ballard, Crippen Atty. Asst. Norma Gen., Nashville, for the State. OPINION COOPER, Justice. appeal
This is direct
from the sentences
defendants, Sidney
imposed on the
of death
Owens, for the
Porterfield and Gaile K.
husband,
killing
Ronald
of Mrs. Owens’
defendant, Sidney
The
Owens.
murder in the first de-
was convicted of
defendant,
gree.
Gaile K.
accessory
fact,
convicted of
before the
en and
splattered
blood was
on the wall
degree.
wit: murder
the first
and floor. Mr. Owens was found in the
unconscious,
den
his head covered with
question
The defendants
the sufficiency
blood. Mr. Owens died some six hours
evidence, rulings
by the trial court
multiple
later from
blows to his head.
pre-trial motions,
dire,
on voir
the ad-
evidence,
argument
mission of
autopsy
revealed that Mr. Owens
state,
jury by the
and the court’s instruc-
twenty-one
struck
at least
times
jury.
tions to the
The defendants
in-
instrument,
with a
blunt
described
sist that the
provisions of the
pathologist
long,
cyl-
forensic
as a
striated
Act,
Tennessee
Penalty
Death
T.C.A.
inder such as a tire iron. The blows had
39-2-203, are unconstitutional.
§
floor,
driven his face into the
crushed his
After consideration of the several issues
fragments
skull and driven bone
into his
record,
and of the entire
we are of the
brain. Mr. Owens also had sustained ex-
opinion that no reversible error was com
injuries
tensive
to his hands and strands of
*4
guilt
mitted in either the
hair
fingers
between his
indicated he had
phase
trial,
of the
the verdicts and
covering
been
his head with his hands
evidence,
sentences are sustained
he
when
was beaten.
and that the sentences of death under the
James,
After
killing, George
one of
circumstances
way
of this case are in no
the men solicited by Mrs. Owens to kill her
arbitrary
disproportionate.
See State v.
husband,
police
contacted the
and told them
Harbison,
of Mrs. Owens’ offer. James then assisted
Austin,
(Tenn.
State v.
Mr. Porterfield also
to
made a statement
her
represented
attempt-
to
father-in-law
police
which was
evidence.
entered into
a
to secure
loan.
According
Porterfield,
to Mr.
met
he
with
Mr. Porterfield insists that the trial court
Owens on three
Mrs.
occasions to discuss
admitting
erred in
codefendant Owens’ out-
plans
killing
for the
Mr.
last
of-court confession into
evidence.
being
p.m.
February
at 2:30
on Sunday,
argues
that the recitals in Ow-
He
1985.
stated that Mrs.
offered
Owens
ens’
that she
statement
would
have
$17,000
husband,
him
kill
her
that he
money
pay
days
Porterfield three to four
her he
told
would
out the
have
check
murder,
after the
that Porterfield told her
(Shortly
situation.
after her
fu-
husband’s
Mrs.
“he had
been able
up
neral
Owens had
father-in
never
to catch
asked her
with
$17,000
bills.”)
pay
law for
"to
He
some
him
nothing
had ever
[Mr. Owens]”
further stated that he
Owens’
went to the
right,
give
and that she did
Porter-
evening
p.m.
house
at about
On
9:00
key
the house
field a
did not “interlock”
leaving
automobile,
his
put
tire iron in
a
confession,
with
Porterfield’s
defendant
pocket
his
dog.
case he
encountered
their admission into evidence was
walking
Porterfield stated he
in the
rule
Bruton
violation of the
set forth in
*5
yard
back
of the Owens’ house when Mr.
States,
123,
1620,
United
391
U.S.
88 S.Ct.
home;
Owens came
that Mr. Owens would
(1968).
446
Recently, however,
the United
penalty
death
if
found the evi
Supreme
States
Court abandoned the rea
dence sufficient. The trial court’s denial of
in Parker regarding
soning
plurality
of the
a severance under these circumstances was
interlocking confessions and held in Cruz
not an abuse of discretion. Peabody v.
— York, U.S.-,
v. New
State,
1714,
107 S.Ct.
547,
556 S.W.2d
550 (Tenn.Crim.App.
(1987),
95
State,
1977);
L.Ed.2d 162
where a nontes-
Seaton v.
Tenn.Crim.App.
tifying
452,
codefendant’s
905,
confession incrimina-
(1971).
472 S.W.2d
ting the defendant is
directly
not
admissi-
separate action,
In a
both defend
defendant,
against
ble
the Confronta-
severed,
ants moved to have their cases
tion
joint
Clause bars its admission at their
insisting that
the denial of a severance
trial,
even if the
is instructed not to
interfered with their use of peremptory
against
consider it
the defendant and even
challenges. A motion for severance is ad
if the defendant’s own confession is admit-
dressed to the discretion of the trial court
against
However,
ted
him.
the defendant’s
and its decision
will
be reversed absent
may
confession
be considered at trial in
showing
prejudice
to the defendants.
assessing whether his codefendant’s state-
Coleman,
619 S.W.2d
ments
supported by
are
sufficient “indicia
8(c)(1)
Rule
of the Tennessee
of reliability”
directly
to be
admissible
provides
Rules of Criminal Procedure
against him (assuming the “unavailability”
mandatorily joined
defendants shall be
codefendant)
despite
op-
the lack of
where,
here,
“each of the defend
portunity
may
for cross-examination and
be
charged
ants is
accountability
with
for each
appeal
assessing
considered on
whether
offense included.”
any Confrontation Clause violation was
Harrington
California,
harmless.
The record shows that counsel for
395 U.S.
89 S.Ct.
447 mistrial, prospective jurors pre-trial several on publicity, when the court was careful newsreporter’s story nothing inflammatory overheard a preju- to see that proceedings, jurors and when two made dicial to defendants revealed. was voir dire. prejudicial during And, Fur- jurors actually remarks the answers of the ther, the charges give any defendant Porterfield in the case do seated indica- using state their peremptory jurors pre-tri- with chal- tion that the remembered lenges systematically to blacks publicity any exclude al detail or were carefully from jury. prejudiced We have con- against or biased the defend- ants, them, sidered each these and contentions result of either as a found them pre-trial publicity. to be without merit. The ulti- Under these circum- dire is goal voir stances, mate of a to see that see no abuse of discretion in we jurors competent, unbiased, impar- individual, are denying seques- the trial court dire, case, voir dire reading tial. On voir any prejudice resulting this tered nor impressed we are with the fact his ruling. the defendants because of goal. counsel attained We are further Exception taken was no opinion prejudicial error prospec of a defendants exclusion committed the trial court in numer- its Pickett, juror, Charlayne for tive cause. voir dire. rulings during ous of Ms. statements substance Pickett’s on voir dire was that she would automati request for the indi basis for vidual voir dire was the fear prospec cally impose penalty not to vote the death jurors exposed any tive had been regardless to and remem this or other case television, newspaper, bered re disqualified and radio law and evidence. This her as ports of the for juror, correctly crime which the defendants the trial ex court being Wainwright cause. highly tried. Where a crime for is cused her grant Witt, publicized, procedure the better is U.S. 105 83 L.Ed. 469 S.Ct. individual, (1985) sequestered, defendants 2d 841 However, voir dire. only it is there where dire, During the voir defendants “significant juror is a possibility” that a (1) prospec one for a mistrial when moved has exposed potentially prejudicial juror in answer to defense counsel’s tive voir dire is material that individual man why question he could not consider life Claybrook, dated. 95 S.W.2d degree murder stat punishment as first State, Sommerville v. amount of ed that there was a certain person serving a life term time that a case, something judge stay the instant “in there” and that the trial would questioned crime; jurors existing done prospective their had to about be knowledge (2) his having juror the case from indicated that wife had either when a *7 neighborhood, discussed it in their hav told him the case and that knew or about ing having read in and “there is a newspaper, it or “what went down” that jurors peremptorily heard it on or of were chal the radio television. Most case.” Both prospective by court. We jurors lenged who had ex and were excused been resulting from posed type pre-trial prejudicial error publicity to some of see no responded prospective juror they only The first vaguely recalled these remarks. Many merely responding coun they what read or heard. did was to defense had why refuse a they question not recall heard. as to he would anything had read or sel’s every pro The revealed inquired The trial court of life second never also sentence. case, spective about the and trial juror exposed pre-trial publicity, what he knew him, prospective admonished any they whether set aside their court and could recollec anything they hearing, upon jurors tion and decision within render a based to trial pro prior about the case presented evidence at had learned trial. Five spective juror’s in the jurors they used as evidence stated could not could not be Further, defendants by were Dur excused court for deliberations. cause. jury questioning jurors this failed to demonstrate that prospective have prejudiced jury finally heard the case was selected consisted of two which pro- males, of the biased the statements two black five white males and five spective jurors. The comments did not in The unused white females. state had four presumption any way challenges, affect the of inno- have ex- peremptory could way any jury or in lessen the burden cence cluded the two black males from the prove the state to its case. goal had their the exclusion of blacks. dire, During the voir it was discov sentencing hearing, the In the bifurcated newsreporter had called in a ered that a pathologist again testified for the forensic proceedings using paya report of the court concerning the circumstances of Mr. state courtroom, located telephone inhaled, outside death, being such as blood Owens’ prospective jurors and that several brain, fragments being driven into his bone nearby. report had to do with a state had six and the fact that Mr. Owens lived counsel that some news ment of defense beating. photographs Two hours after reporting Mrs. agencies were Owens by Mr. showing the head suffered wounds charges against her. plead guilty had to the introduced. Owens also were to elimi agreed at the time that Counsel addition, presented proof In the state prejudice, the trial any possibility of nate convicted of that Mr. Porterfield had been potential jurors whether court would ask deadly weapon in 1968 and robbery with a con any conversation had overheard simple robbery twice 1971. The state them that cerning the case and admonish kill- of the on the circumstances also relied When any report news was not evidence. guilt phase ing as shown prospective jurors developed that several it of the trial. reporter’s telephone call overheard the mitigation, the defendant Owens In (none anything indicating they had heard treat- that she had been presented evidence moved for a mistrial specific), defendants in 1978 one occasion by psychiatrist on ed jury panel. new or in the alternative a problems. She for severe behavorial motion, grant de did court denied the but employees who testified jail two called inci on this fendants individual voir dire good prisioner who Mrs. Owens was individually on questioned those dent. Of work, problems, no volunteered caused issue, anything had overheard none study classes. attended Bible It follows prejudicial or even substantial. mitiga- presented no evidence Porterfield preju commit that the trial court did not tion. motion denying defendants’ dicial error
for a mistrial. death, the imposing the sentence aggravating circumstanc- three jury found in Porterfield The defendant Porterfield, respect and two with underrepre es with the blacks were sists that mitigating cir- No respect to Mrs. Owens. jurors prospective panels sented on the Specifically, found. cumstances were systematic due to the and that this was (1)had been found that Mr. jury in the selection exclusion blacks felo- or more of one previously convicted charged that the process. He further or threat violence involving the use nies proof refusing an offer judge erred (2) he committed person; is to the exclusion systematic the issue. While promise of or the remuneration murder for court, not the basis it was charged in this remuneration, another to com- employed in the panel objection *8 remuneration, or the for the murder mit However, a defend whenever trial court. remuneration; (3) the that of and promise spec raises the in identifiable class ant an atrocious, heinous, especially murder was of in selection ter discrimination the or de- torture in that it involved given or cruel the jurors, he should be prospective 39-2- of mind. T.C.A. pravity See charges. §§ How develop his opportünity to (4) (5). 203(i)(2), found the jury and The us, preju no ever, from the record before in sen- aggravating circumstances same the from to Mr. Porterfield dice resulted finding except the tencing Mrs. for The in this area. rulings by the trial court
449
previous
felony involving
allowing
conviction of
her to
not
show that she
filed
person.
the
threat of
asking
use or
violence to the
the
a motion
court to
her to
allow
accept
plead guilty and
the
of life
sentence
challenges
Defendant Porterfield
proffered by the state. The
indi-
state had
sufficiency of the
to
the
evidence as
the
accept
plea,
it would
cated that
such a
jury’s findings
hearing.
sentencing
the
upon both
pleading
conditioned
defendants
points
He
out that the earlier convictions
guilty. The state withdrew the offer when
Porterfield, Jr.,
that of Sydney
shown were
plead.
Mr. Porterfield declined to
Mrs.
argues
and
there is
to
no evidence
negotiations
Owens wanted to show these
Porterfield,
Sydney
show that
and
Jr.
mitigating
as a
jury
to the
circumstance.
issue,
person.
are the same
On this
the
fingerprint
record shows that a
Ohio,
586,
technician
438
S.Ct.
Lockett
U.S.
98
Shelby County
Depart
from the
2954,
Sheriffs
(1978),
the fashion described hei nous, atrocious, or cruel in that involved it Both defendants insist that depravity of torture or mind. State v. in permitting trial court erred the introduc McNish, 727 S.W.2d photographs tion of at the two Williams, hearing to show nature and extent upon injuries inflicted victim. directly challenging
While suffi- insist photographs defendants ciency the jury any probative evidence on which without value and predicated death, the sentence of prejudicial photographs Mrs. Ow- effect of the *9 ens does insist that the erred in con- trial court mandates a reversal the defendants’ argu-
victions. We see no merit in this aggravating circumstances the state in- ment. It is well-settled prove that the admissibili- given tended to was not the defend- ty photographs is a matter committed to ants until day began. the the trial Rule judge, 12.3(b) the sound discretion of the trial of the Tennessee Rules of Criminal ruling provides whose will not be overturned on Procedure give that the state shall appeal showing absent clear abuse notice both of its intent to seek the death Banks, discretion. penalty 564 S.W.2d aggravating and notice of the cir- photographs in cumstances not less thirty days prior than question were to proving relevant one of provides trial. It further that “if notice statutory aggravated the circumstances— is filed later than days], this time the [30 is, that especially whether the murder was judge grant shall upon the defendant heinous, atrocious or cruel in that it in- his motion a reasonable continuance of the depravity volved torture or of mind. While trial.” sought The defendants no continu- defendants, undoubtedly prejudicial to the ance in this By failing case. to move for a sentencing stage continuance, in proceedings the the defendants waived the in aggravating view of the circum- requirement giving time for the of notice. alleged, they highly probative stance nothing were We note further that there is in the injuries the nature and extent of the record to indicate either that the defend- upon every surprised inflicted Mr. Owens. ants While were when the state an- beating death is not as aggravating a matter law nounced the circumstances it to be category “espe- prove, included within the intended to or that the defendants heinous, atrocious, cially prejudiced any way by timing or cruel ..." the were the heavy, repeated, infliction of and vicious of the notice. helpless, may blows to a conscious victim Defendant Porterfield also raised the easily be found a trier of fact to fall specter prosecutorial during misconduct category.
that See State v. McNish 727 closing argument sentencing the in the S.W.2d 490 phase carefully of the trial. We have read argue photo- The defendants that argument opinion and are of the graphs were inadmissible because of argument pertinent to the issues during state’s assurances voir dire and predicated upon present- and was during guilt phase of the trial that it during ed the trial. morgue
would not seek to introduce the
There are
issues directed
several
photographs. Defendants insist that was
given by
instructions
the trial court to the
stipulation,
an oral
which caused them to
stage
jury
sentencing
in the
of the trial.
jury.
alter their voir dire of the
We find
complaint,
In his first
Mr. Porterfield in-
nothing
argu-
support
in the record to
that the trial court erred in instruct-
sists
ment of the defendants. The fact that the
they
sym-
jury
must not allow
state stated
not introduce the mor-
it would
pathy
prejudice to influence them in
gue pictures
guilt phase
in the
of the trial
reaching their verdict. We see no error
pictures
was not a commitment that the
Brown,
this instruction.
California
in the
would not be offered to the
479 U.S.
107 S.Ct.
451
totally
hearing
capital case,
would
from the
in
be
divorced
evidence
which contains
Id.
during
penalty phase.”
language
adduced
the
the
of
statutory
T.C.A.
39-2-203(g),
it is in our
opinion
§
He also
judge
insists that the trial
charge.
sufficient and correct
failing
erred in
to define
or
“torture”
“de
argues
jury
also
Mr. Porterfield
that the
pravity
jury
of mind” for the
and erred in
interpreted
instructions could be
man-
as
“heinous,”
its definitions of the terms
dating
penalty.
the
“atrocious,”
death
instruction
and “cruel.” It would have
questioned
language
is in the
of T.C.A.
judge
been better had the trial
used the
39-2-203(g),
Williams,
previ-
which this court has
State v.
§
set
in
definitions
out
ously
mandatory
held does not create a
517, 532,
(Tenn.1985),
690 S.W.2d
533
as
See
Teague,
State v.
penalty.
death
680
they
approved
have
this court.
785,
(Tenn.1984).
S.W.2d
790
However,
given
the definitions
were in our
opinion adequate. Further, we
no
find
Finally,
argued
it is
the
judge
that
trial
prejudicial error in the trial court’s failure
in failing
committed error
to
the
instruct
“depravity
to
the
“torture”
define
terms
or
jury
presume that
to
the defendant would
of mind.” The
case sup
evidence
this
sentence,
actually
life
if
serve a
that were
ports
aggravating circumstance,
Tenn.
jury’s
argument
verdict. A similar
has
Ann.,
39-2-203(i)(5),
Code
as defined in
§
been made in
to
other cases and found
be
Williams, supra,
State v.
as the defendant
Melson,
v.
State
without merit.
638 S.W.
repeatedly struck the victim with a tire
State,
(Tenn.1982);
Houston v.
2d 342
593
iron, inflicting horrible head wounds. Fur
(Tenn.1979).
267,
S.W.2d
278
thermore,
remaining
aggravating
two
question
The defendants
the consti
charged
circumstances
correctly
and tutionality
Penalty
of the Tennessee Death
supported by
are
the evidence. Under
They
being
Act.
concede the issue is
these
prejudice
circumstances there
nowas
preserve
raised
to
it
later review
to
the defendant
failure
the trial
re
acknowledge
this court has
judge
“depravity
to define “torture” or
of peatedly upheld
constitutionality
King,
mind.” State v.
2d 241
Rowan
212 Tenn.
conceding
constitutionality of
While
(1963).
the Constitution upon
incumbent Porterfield to show discriminatory with “acted McCleskey
purpose” in his case. -,
Kemp, 481 U.S. 107 S.Ct. (1987). This has
L.Ed.2d fact, argued. it is not even
done. assignments
All of error are overruled. judgment of conviction each case imposed pursuant thereto
and the sentence The sentences will be car-
are affirmed. April provided by law on
ried out as stayed or modified unless otherwise authority. are
by appropriate Costs taxed appellants. FONES,
HARBISON, C.J., and O’BRIEN, JJ., concur.
DROWOTA and REHEAR
OPINION ON PETITION TO K.
Defendant-Appellant, Gaile has petition
has filed a to rehear which by the court and found
been considered
be without merit. petition is denied. Costs are ad- against petitioner.
judged CORCORAN,
Christopher J.
Plaintiff-Appellant, GMC, INC., Fos
FOSTER AUTO a/k/a World, Group, and Orion
ter Auto
Inc., Defendants-Appellees. Tennessee,
Supreme Court of
at Jackson. 1, 1988.
Feb. 7, 1988.
Rehearing Denied March