*1 STATE of Tennessee REID,
Paul Dennis Jr. Tennessee, Supreme Court of at Nashville. Feb. 2005 Session. May *10 A. and Thomas F.
James Simmons Tennessee, Bloom, Nashville, Ap- for the Reid, Paul pellant, Dennis Jr. Summers, Attorney General and Paul G. Moore, Reporter; Michael E. Solicitor Smith, General; L. Jennifer Associate General; Attorney John Car- Deputy W. General; Jr., ney, Attorney District Bieber, District Attor- Arthur F. Assistant General, ney Appellee, for the Tennessee.
OPINION ANDERSON, J.,
E. RILEY delivered court, in which FRANK opinion III, DROWOTA, C.J., F. and JANICE M. BARKER, HOLDER M. and WILLIAM JJ., BIRCH, JR., joined. ADOLPHO A. J., concurring/dissenting separate filed Reid, defendant, Jr., Paul Dennis premeditat- was convicted of two counts murder, of es- degree ed two counts first aggravated kidnapping, and one pecially robbery. especially aggravated count of each sentence for imposing a death murder, degree of first count circumstances, aggravating three found i.e., con- previously that the defendant was whose statu- of one or more felonies victed use tory of violence elements involved espe- the murders person, heinous, in that cially or cruel atrocious physical they torture or serious involved *11 process and confrontation under the Unit- beyond necessary produce abuse 12) death, Constitution; commit- the trial court and that the murders were ed States purpose avoiding, interfering admitting photographs ted for the did not err in with, or or preventing pros- during lawful arrest at the crime scene sentenc- victims 13) another, ecution of the defendant or the trial court did not commit ing; beyond proven been a reasonable doubt. in failing charge reversible error the (6) 39-13-204(0(2), (5), §Ann. Tenn.Code jury statutory provision “catch-all” on the (2003). addition, 14) the found that circumstances; mitigating as to aggravating the evidence of circumstances in denying the trial court did not err a new outweighed mitigating evidence of circum- prosecutorial trial based on misconduct beyond stances a reasonable doubt. Tenn. during sentencing. agree also with We 39-13-204(c) (2003). § Code Ann. The Appeals’ conclusions the Court Criminal Appeals Court of affirmed the Criminal issues, remaining the respect convictions and the death sentences. portions relevant of which are included in opinion. Accordingly, to this appendix
After the case was docketed Court, Appeals’ judgment the Court of Criminal identifying we entered an order argument. numerous issues for oral is affirmed. We 1) now hold as follows: trial court did Jr., defendant, Reid, The Paul Dennis in finding not err that the defendant was premeditat- was indicted for two counts of 2) trial; competent to stand the trial court murder, felony ed two counts of murder in excluding during did not err during perpetration robbery, of a two 3) competency hearing; the trial court especially aggravated kidnap- counts of refusing did not err in to hold new aggravated robbery. and one count of ping, competency hearing on the basis that presented during The evidence trial 4) biased; court-appointed expert was as summarized follows. support evidence was sufficient to the de- 5) convictions; fendant’s trial court did Phase Guilt denying not err in the defendant’s motion 23, 1997, night April Angela On the aggrava- dismiss on the basis Holmes, twenty-one, age and Michelle ting circumstances were not stated Mace, sixteen, age working were at a Bas- 6) indictment; the trial court did not err in Rudolph kin-Robbins store on Wilma Bou- allowing the prosecution to amend the in- Clarksville, levard Tennessee. 7) dictment; the trial court did not commit regularly p.m. store closed at 10:00 At in limiting reversible error extrinsic evi- p.m., Craig around 10:10 Mace arrived at 8) statements; dence of inconsistent sister, pick up the store to his Michelle. support ag- evidence was sufficient to Angela He noticed that car was in Holmes’ gravating jury; circumstances found parking lights lot and that the inside 9) death arbitrary sentences were not the store on. He entered the store were disproportionate imposed in this no through an unlocked door and found 10) ease; the evidence was sufficient to Mace called 911. one inside. jury’s support finding that evidence of dispatched Officers were to the scene aggravating outweighed circumstances evi- 11) They and searched the store. found the circumstances; mitigating dence of register empty, except cash drawer capital sentencing statutes are not uncon- coins, in an some and a safe office with they stitutional on the basis that allow top purses evidence to be admitted violation due removed.1 victims’ $1,565.58 1. The owner of the store testified that had been stolen. *12 police that he contacted store; stein admitted money
found at no had been mop pictures A he of the purses. taken from the and bucket June of 1997 after saw area, found in the customer car on the television news. defendant’s open. was left freezer acknowledged pri- that he told a He also car he saw had investigator vate 24, 1997, morning April On doors, the defendant’s car two whereas Michelle Angela bodies of Holmes and had four doors. found at the Dunbar Cave Mace were Montgomery Natural Area in Coun- Perdue, Mace, Jerry a friend Michelle Tennessee, 2.1 and ty, which was between that a small red car in the testified he saw miles from the Baskin-Robbins store.2 3.6 shortly lot after parking Baskin-Robbins deep stab Both victims had suffered 23, 1997. He further p.m. April 10:00 on necks, wounds to their as well as stab of the defen- photographs testified that wounds, cuts, parts and abrasions to other very well the car he dant’s car “could be” Both bled to death. of their bodies. had acknowledged parking saw in the lot. He Lavanda Zimmerman testified that she officers that that he told law enforcement Baskin- with the victims visited the car he saw a two-door hatchback was p.m. until 10:00 Robbins store from 9:20 He also longer that he was no sure. but 23, April point, 1997. At one a p.m. on that the car had stated that he told officers early thirties man his late twenties bumpers. black entered the store and became “obnoxious” that a Elfrieda Lane testified she was “very prices loud” about the before lived friend of the defendant and that she leaving. Zimmerman left the store at As miles from the Baskin-Robbins store three “shiny red” car enter p.m., 10:00 she saw Clarksville, Lane testified Tennessee. Although testified parking lot. she “once or that the defendant called her car— photograph that a of the defendant’s February April from twice” week red, Ford Escort —was a 1997 four-door the defen- they 1997 and that discussed seen, the car she had she “consistent” with Shoney’s at a dant’s effort to be re-hired private investiga- that told a conceded she Lane testified that the defen- restaurant. prior tor to trial that the car was “dark 18, April at her home on or about dant was reddish or maroon.” She also conceded driving a red that he had been car that she did not tell officers about the Lane, the defendant According to car. May was interviewed in of 1997. when she 24; her April on he told telephoned her testified that he was George Hertenstein previ- her the planned that he had to visit April on driving p.m. to work at 9:59 too late. evening gotten that it had ous but driving slowly on when he saw car revealed that the de- Business records Road near the BaskinRobbins Rossview gasoline at Texaco purchased fendant attempted to store. When Hertenstein p.m. April at 9:45 station Clarksville car, car turned onto pass abruptly 23,1997. 0.7 miles The Texaco station Road, Hall which one road after Union and 0.9 miles from from Lane’s home to the Baskin-Robbins store. the entrance A credit signed store. Baskin-Robbins the car was Hertenstein testified the defendant receipt card showed of the defen- photographs “identical” cross-examination, gasoline. purchased worth Herten- $11.95 dant’s car. On ranged driving three routes from three time for the Miller testified that 2. Detective Robert from routes could be taken to travel different four to five minutes. park. to Dunbar Cave Baskin-Robbins testing. DNA She Handwriting experts confirmed that fied about additional found in the signature receipt sample on the was the defen- testified the DNA copy receipt A was also blood on the defendant’s left shoe was dant’s. profile Angela found in the the DNA defendant’s wallet. consistent with in the sample Holmes. The DNA found Jay and Shannon Reeves testified Smith did not right blood on the defendant’s shoe they a car saw near Dunbar Cave defendant, Angela exclude the Holmes or *13 p.m. night April around 10:30 on the of that a Michelle Mace. Clement testified They at were the home of Smith’s analysis combined statistical revealed that Schmidt, girlfriend, Holly who lived across probability the blood found the street from the Dunbar Cave entrance person left from a defendant’s shoe was parking lot. Smith testified that the in Angela other than Holmes was one car was a red four-door and that he 1,810,000 population, in the Caucasian one thought it was “odd” car because the 3,250,000 popu- in the African-American Smith, parking space. not in a a of friend lation, 4,950,000 one in in the Southeastern Mace, Michelle conceded that he had told 4,520,000 Hispanic population, and one in officers the car looked like several makes Hispanic in the population. Southwestern cars, of none of which matched the defen- dant’s car. Littlejohn, Smith nonetheless testified Linda comparison a fiber that the car he specialist saw was “consistent” with with the Tennessee Bureau of photographs of the defendant’s car. Investigation, testified that found on fibers Reeves testified that he saw a car in clothing compared the victims’ to fi- Dunbar parking Although Cave lot. he bers in the defendant’s car. According any could not make out Littlejohn, details about the Angela three fibers found on car, he noticed that headlights the car’s clothing Holmes’ were consistent with and, were on at point, changed one from samples taken from the defendant’s back- high low to beam. Similarly, eight seat and floor mats. fi- bers found on clothing Michelle Mace’s Zavaro, Samero serologist and DNA shoes were consistent with fibers from the specialist with the Tennessee Bureau of backseat, carpet, edge defendant’s and the Investigation, sample testified that a DNA Littlejohn of the backseat. testified that it taken from blood found on the defendant’s very you was “a rare case that find eleven left tennis shoe was consistent with the Moreover, fibers that match one source.” DNA profile Angela of Holmes. In addi- the evidence showed that the floor mats tion, sample a DNA taken from small found the defendant’s car were not stan- blood right stains found on the tennis shoe Escort, rather, dard the Ford but had was consistent with a mixture of two or purchased by been the defendant at Wal- more Angela donors from which neither 25,1997. Mart on March Holmes nor Michelle Mace could be ex- cluded. probabil- Littlejohn Zavaro testified that the testified that she also ana- ity selecting an lyzed photographs unrelated individual that of footprints found at Cave, would have the same profile DNA as the Baskin-Robbins Dunbar as well sample on the defendant’s left shoe was pairs belonging as nine shoes 6,800 one in Littlejohn Caucasian individuals and one defendant. conceded that 4,400 African-American prints individuals. shoe did not match the defendant’s shoes. Clement, Meghan as associate director identity
of forensic testing Laboratory at Two witnesses testified that the defen- Corporation (“LabCorp”), of America testi- dant had told them that he could make wound,' money by committing Danny robberies. which was consistent with knife inches, eight Tackett that he was working testified with blade or nine transected Shoney’s January jugular the carotid vein. artery defendant Dr. suggested 1997 when the defendant rob- Harlan testified Mace suffered wounds, bing a place including [in the] “fast food middle of fourteen stab fatal the night” there were wit- stab wound in neck. Dr. Harlan because “no her stat- thought a compound penetrated nesses.” Tackett defendant ed that incision Likewise, Jeffery backbone, joking. Potter testi- Mace’s consisted of three direction, fied January changes that in defendant and was consistent expressed job According sawing dissatisfaction his and with motion. Dr. suggested Harlan, robbery way as a mon- both taken make victims would have five ey. to fifteen to death minutes to bleed , percent have eighty would been conscious evidence showed defendant *14 that time. of very was unemployed money and had little in his in the checking spring account testified for the Several witnesses de- However, Patton, 1997. in Linda a friend of fense guilt phase proceeding. defendant, that shortly Naylor testified after Catherine testified that she a saw April 23, paid the defendant half of dark red or car in the parking maroon lot her air fare to travel p.m. Nashville from Baskin-Robbins at 9:48 on April 23,1997. Texas. Patton further According Naylor, testified that the car she meals, for her paid lodging, photographs defendant cash saw did not match of the de- and entertainment in Nashville. fendant’s car and was not a Ford Escort. Keller, Tammy and Dustin Thompson stu- Additional circumstantial Peay University, dents at Austin testified by prosecution. introduced Loretto they that at at were Baskin-Robbins 9:50 son, Diorio twelve-year-old and her Ste- 23, 1997, p.m. April they on and that were phen, they they that testified believed saw driving, They 1993 red Nissan Sentra. the defendant at the Dunbar Cave on park a man saw in Baskin-Robbins with shoul- however, 17, 1997; February they were der-length Thompson hair who described Jayroe not 100% certain. Barbara testi- “scraggly.” Thompson Both Keller fied that she saw the defendant at the testified that defendant not the man park April Dunbar on Cave She they night. in saw the store that told the acknowledged police that she she was not sure the defendant was the same Barbara and Martin McIn- McWilliams man in park. tyre, employees she saw the Mitchell Rob- at Riverbend Maximum Nashville, Security erts that the defendant him in testified prison testified asked they lot of the getting Shoney’s parking about re-hired in late Dunbar p.m. May park of 1997. to Rob- 10:50 and 11:30 on According June Cave between erts, driving April the defendant was a small red 1997. Both McWilliams and McIntyre they car of a did not possession and was knife with testified see lot “eight long.” any parking during blade or nine other cars in the about inches that time. Dr. per- Harlan testified that he Charles victims, Shields, professor Dr. autopsies
formed the on two William N. biology, Dr. the defense as Angela Holmes and Michelle Mace. testified for an zoology expert analysis Harlan that Holmes as a testified died DNA disagreed her of the result of a wound to neck that with the results combined stab way analysis performed LabCorp. went “all the to her backbone.” The statistical Black, view, killing. Connie the victim’s probability Shields’ mother, person Angela impact other than Holmes was testified as to the likewise of the blood on the defendant’s left family source and its effect on killing 122,000 one in and one shoe was between testified that the victim’s older sister. She 12,000,000 population. in the Caucasian girl anymore” “little longer she no had her 1,200,000. His estimate” was one “best killing caused a “void inside and that the there was no Shields also testified her.” mixed the LabCorp
reason for to have Harlan again Dr. Charles described right blood stains found on the defendant’s by Angela suffered Holmes wounds conducting analysis. its shoe before Both had massive Michelle Mace. victims evidence, considering After throats, to their as well as other incisions convicted the defendant of two counts of cuts, bruises, and abrasions. The wounds murder, degree first two premeditated had cut arter- to the victims’ throats vital murder, felony counts of two counts deep ies and veins. The wounds were aggravated and one especially kidnapping, enough injure spines. victims’ also robbery. count of especially aggravated repeated Dr. Harlan testi- guilt-phase his merged trial court the two counts of mony that the victims would have bled to felony murder of pre- with the two counts death in five to fifteen minutes and that A degree meditated first murder. sen- the victims would have been conscious *15 tencing hearing was then for the held pain eighty percent would have felt for punishment. to determine the depicting that time. the vic- Photographs injuries Dr. Har- by tims’ were identified Penalty Phase jury. lan and shown prosecution The testimony introduced Finally, prosecution introduced evi- from Angela family several of Holmes’ prior dence that the defendant had two husband, Holmes, members. Her Tobaris degree for murder3 and a convictions first testified that his “changed wife’s murder aggravated prior especially conviction life,” everyone’s infant including their County, robbery Davidson Tennessee. daughter who “would never know her addition, prior the defendant had one mother.” He believed he should have aggravated robbery conviction for in Tex- protect been able to Camp- his wife. Kim as. bell, mother, Angela’s testified that she relationship daughter
had a close with her In mitigation, presented the defendant and that she longer family could no take testimony extensive from mental health photographs because there is a “void.” Amador, experts. and Dr. medical Xavier She further testified that the murder had a clinical that psychologist, testified “traumatized” her youngest son. from condi- multiple defendant suffered para- chronic schizophrenia tions: prosecution also introduced testimo- type, cognitive noid disorder not other- ny family from several of Michelle Mace’s Mace, damage, wise documented brain Craig specified, members. the victim’s broth- er, and mental illness associated with brain testified about the effect of his sister’s Amador, dysfunction. According to Dr. family. murder on their He testified that sad, fearful,” change “angry, personality he had become the defendant also had trauma “totally destroyed” type and that his father was of a combined caused head Reid, appeal. 3. The defendant’s convictions and death sen- on direct State v. (Tenn.2002). tences for these offenses have been affirmed im- by aggressive listening characterized several hours to him talk about pulsive behavior. things nothing that had to do with the eventually, surveillance. But and this is Dr. Amador described the defendant’s twenty over the course of the initial family history, problems, behavioral interview, hours of I was able docu- history of mental illness. The defendant ment and detail and corroborate ... trauma, history had a documented of head people what other said he used to talk injuries which included several head suf- government about. That he was under fered in his childhood. The defendant had twenty-four day. surveillance hours a diagnosed having dysfunc- been brain psychotic tion in 1964 and 1966 and disor- Allen, speech Patricia language ders 1978 and 1984. Dr. Amador stated therapist at Medical Vanderbilt Center the defendant has believed he Nashville, testified that she evaluated the government been under surveillance since defendant for fifteen hours 1998. She 1978: testified that the defendant was born with
There are several delusions that or- are hearing deformed ear and loss. She ganized around one central delusion. speech stated that the defendant’s and lan- long-standing He has the belief that for guage skills were consistent with one who twenty years, over he’s been under con- had “significant acquired injury.” has brain govern- stant surveillance a secret She testified the defendant suf- him, agency. They videotaped ment inju- fered least four documented head they taped- audiotape, they bugged his injuries during ries and that the occurred — car, his house. He had been chosen for important developmental periods. The de- this surveillance he because of believes “problem fendant was unable solve special qualities possesses. some Allen, he ways.” integrated According to relationship Mr. Reid has to the “very poor defendant scored aver- below government agency that he believes is *16 lan- age” designed on tests measure doing very to him At this is mixed. guage reasoning skills. times, he feels tortured and ... para- Auble, neuropsy- Dr. Pamela a clinical noid At agency. about other that chologist, testified she interviewed time[s], great loyalty he talks about his defendant, testing, and reviewed conducted agency.... simply to this And this is the defendant’s and social histo- medical
the center or the core of his delusional ries. She testified that the defendant had beliefs. in in been struck the head his father Dr. Amador did not the defen- believe 1962 and that the defendant suffered addi- malingering; contrary, dant was to the he that injuries tional head from accidents stated that the defendant suffered from occurred in and 1990. Dr. anosognosia, symptom psychosis a testified that the defendant’s left Auble person injury compul- which a with a brain lobe, temporal the area of the brain con- sively he or she does not attempts prove behavior, trolling language a Although have mental illness. defen- According to “shrunken and distorted.” he nor- people dant “wants to believe is Auble, damage Dr. caused the the brain mal,” Dr. Amador stated that the delusions psychotic defendant’s disorder with delu- emerged after hours of interviews: in the impairments sions and resulted things explained that defendant’s behavior. Dr. Auble
He would make references about, difficulty thinking things he couldn’t talk he was not that the defendant aggression, psycho- I that he exhibited liberty say spend had to sis, identify be- any relationship and delusions. The defendant met the he “couldn’t disorder, criteria for antisocial personality injury and defendant’s] tween brain [the government plot and he believed that led to his arrest and events to kill control and him. killing of these two women.” Dr. Auble testified that the defendant deliberating, jury imposed After was not malingering. explained She that for of first death sentence both counts family history the defendant had a of men- degree murder. The found three tal illness and that documented evidence aggravating circumstances —the defendant the defendant’s delusions had “been previously convicted of one or more around a long time.” She testified statutory whose felonies elements involved testing person her measured whether a the use of mur- person, violence faking emotional or mental problems and heinous, or especially ders were atrocious measuring scales were elevat- they cruel in that involved torture or seri- applied ed when to the defendant. physical beyond necessary ous abuse Kessler, Dr. neurologist, Robert testi- death, produce and the murders were fied that he examined MRI and PET scans avoiding, committed for the purpose of the defendant’s brain. He described with, interfering preventing a lawful several abnormalities the defendant’s prosecution arrest or defendant or brain, including inju- evidence of traumatic proven beyond another —had been a rea- ry. Dr. Kessler explained that the folds of § sonable doubt. Tenn.Code Ann. 39-13- left temporal lobe shrunken and (6) (2003). (5), 204(i)(2), addition, In indicative of decreased function. He stat- jury found that the evidence of aggrava- ed that these kinds of brain cause lesions ting outweighed circumstances condition that schizophrenia mimics and mitigating beyond circumstances a reason- a strong bear psy- statistical association to § able doubt. Tenn.Code Ann. 39-13- chotic disorders. 204(c) (2003). rebuttal, the State offered the testi- appeal, Ap- On the Court of Criminal mony Bernet, of Dr. William a forensic peals affirmed the defendant’s convictions psychiatrist, who testified that he believed ap- and death sentences. The defendant’s malingering. Although defendant was peal automatically was then docketed the defendant had an personality antisocial this Court. *17 disorder, Dr. Bernet believed the defen- dant had his in fabricated delusions the ANALYSIS
past.
explained:
He
I
pat-
think that
has a
[the defendant]
Competency Issues
tern of malingering
symptoms.
...
And
by
I
malingering what mean is that —he
argues
The defendant
that
the trial
things up.
times makes
times
At
he
finding
compe-
court
in
that he was
erred
symptoms. Malingering gen-
fabricates
making
argu-
tent to
trial.
In
stand
erally
pretend
you
means that
that
you
ment,
specifically
the defendant
contends
something wrong
yourself
have
trial
the
by placing
that the
court erred
you really
when
don’t.
defense,
ex-
proof upon
by
burden of
the
evidence,
a
cluding
by relying upon
Dr.
and
Bernet conceded that
the defendant
damage
court-appointed expert.
of brain
a
The State asserts
had evidence
and histo-
ry
problems,
correctly
mental
that the trial court
found that the
including delusions.
testified, however,
competent
Dr. Bernet further
that
defendant was
to stand trial
He
scripted.
that had been
refused
conducting
competency
full
fair
trial
after
a
attorney, and
case with his
proceeding.
discuss that
trying to make
jurors
he
had been
believed
1999, eight days
before
September of
Au-
According
him.
to Dr.
comments to
a
begin,
the trial was to
the defendant filed
fin-
ble, the
also believed that
defendant
compe-
motion for a determination
his
been
and blood evidence had
gerprint
tency.
granted
The trial court
the motion
against him.
planted
hearing
over the
competency
and held
days.
begin our re-
course of three
We
examination,
As a result
her earlier
by summarizing the
of this issue
evi-
view
that
defendant was
Dr. Auble testified
hearing.
in the competency
dence
competent to stand trial. She stated
not
Auble, a psychologist,
Dr.
testi-
Pamela
that
believed
he was
that
defendant
fied that she examined the defendant on
being
by
government
monitored
January
in
of 1998.
beginning
six occasions
script
attorneys
part
his
evaluation, Dr.
part
As
of her
Auble also
that the defendant’s
Mil him.
stated
She
family
mem-
interviewed
defendant’s
injuries
damage
multiple
from
left
brain
records,
his medical
bers and reviewed
his own
defendant
assist
unable
histories,
records, social
educational
key
could not focus on
defense because he
According to Dr. Au-
other information.
issues;
indeed,
Dr. Auble noted that
ble,
January
the defendant told
preoccupied with irrelevant
defendant was
by
her that he
under surveillance
been
subjects
and the
of his delusions:
topics
years.
government for over thirteen
court-
people
that the
He believes
told Dr. Auble
The defendant also
innocent, including
know that he’s
room
body
his
with a
government had radiated
Attorney
the Judge
District
field,
magnetic
which
his actions
allowed
him, but
policemen who interviewed
monitored on a remote screen
be
charges have
these
that nevertheless
According to
Intelligence Agency.
Central
script
And
up.
set
there’s
been
Auble, the
Dr.
defendant believed
being
That is
acted out.
play.
people
developed
been
surveillance method had
therefore,
can
[the defendant]
And
...
Union.
Soviet
appraise
proceed-
the outcome of
Dr. Auble testified that concerns about
.... His delusions also interfere
ings
competency to stand trial
the defendant’s
own defense.
ability
his
assist
his
emerged during
prior trial
the defendant’s
reality is distorted.
defendant’s]
[The
charges in
degree
two first
murder
everything
predeter-
His belief that
County,
According
Tennessee.4
Davidson
That
it doesn’t
point.
mined at this
Dr.
from
to information
Auble received
his defense or not.
helps
matter if he
consultant,
counsel,
and a
defense
defen-
also
Dr. Auble
observed
investigator,
defendant
defense
normal re-
strong
appear
desire to
dant’s
with his
primarily concerned
seemed
*18
evi-
mitigating
in
that
sulted
his insistence
trial,
during the prior
and meals
snacks
in his own behalf.
presented
dence not be
that
appear
he
not
to realize
he
and
did
cross-examination,
con-
Dr. Auble
On
death sentence.
de-
might receive
diag-
that the defendant had been
judge, jury,
ceded
that the
and
fendant believed
in
cases in
during
malingering
as
earlier
attorneys
roles
nosed
playing
were
Reid,
See
court, and Competency that defendant was testified Defendant’s competent to stand trial. She testified Burden of Proof the nature that defendant understood the trial argues The defendant he charges against of him and believed finding compe- court that he was erred present could a successful alibi defense. placing tent trial the bur- to stand a good he had defendant believed upon him to establish incom- proof den of working relationship attorneys, with his responds The State petency to stand trial. though about they disagreed often defense rulings trial court’s were correct. strategy. According Dr. to Turner-Gra- ham, the impor- the defendant discussed to The Fourteenth Amendment of mitigation tance under- and Article United States Constitution to might be death. stood that he sentenced I, section 8 of the Tennessee Constitution thinking The defendant denied that he was prohibit trial of a who is men person being government or that watched Robinson, tally v. 383 incompetent. Pate being trial He said that scripted. his was 375, 378, 836, 15 815 U.S. 86 S.Ct. L.Ed.2d “achieve he “fabricated stories”.to certain Blackstock, 200, (1966); 19 v. S.W.3d things certain times.” Dr. Turner-Gra- (Tenn.2000). competent To be ham the defendant had an testified trial, a in a criminal case stand defendant antisocial but was personality disorder “ must ‘the capacity have understand “clearly trial.” competent stand object proceedings the nature and Following competency hearing, him, and to against to consult with counsel ” testimony trial court accredited the of Dr. v. assist in his defense.’ State preparing Bernet and Dr. Turner-Graham ruled (Tenn.1991) 166, Black, 815 S.W.2d competent that the defendant stand State, Mackey v. (quoting S.W.2d court fol- emphasized trial. The trial trial (Tenn.Crim.App.1975)). lowing: understood the that the defendant on findings appeal “are conclusive court’s that the defen- proceedings; nature of the other preponderates the evidence unless charges dant understood the nature 554, 559 Oody, v. 823 S.W.2d wise.” State possible punishment; against him and (Tenn.Crim.App.1991).
that the
was able to assist
his
defendant
issue,
we must de
As
threshold
by suggesting legal
defense
theories
proof
that the
termine who bears the burden
strategy; was able
defendant
or in
competency
a defendant’s
attorneys
about
establish
to communicate
his
competency. Although we have never ad
Although
his trial.
the defendant’s brain
issue,5
precise
the Court
it
dressed this
injuries and related conditions made
Appeals
Criminal
has concluded
him to
with his
“difficult” for
communicate
incompetence to
establishing
attorneys,
burden of
the trial court found
these
stand trial
rests with
defendant.
did
render
defendant
difficulties
Oody,
Oody,
at 559.6
incompetent
stand trial.
Black,
insanity
plea
as defense
v.
involved
5. This
decisions in State
Court’s
Jordan,
State,
at 329.
charged offense.
135 S.W.
(Tenn.1991),
and Jordan
(1911), did not
307
York,
presented a
v.
psychologist
(quoting
defendant
clinical
Id.
Patterson
New
432
202,
2319,
197,
U.S.
97
53 L.Ed.2d
that the defendant was
S.Ct.
who testified
bor-
(1977)). Moreover,
empha
retarded,
281
Court
psychotic,
incompe-
derline
and
provides a defen
“[o]nce
sized that
a State
State,
tent
be tried. The
on
other
a
procedures
making
dant access to
hand, presented testimony
psy-
from two
evaluation, ... we
no
competency
perceive
chologists who stated that
the defendant
holding
process
that due
further
basis for
malingering
competent,
and was
as
requires the
to assume
burden
testimony
well as the
of officers who relat-
...
persuading
of
trier of fact that the
ability
ed the defendant’s
to communicate
is competent
defendant
to stand trial.” Id.
Appeals
to them. The Court of Criminal
449, 112
at
S.Ct. 2572.
placed the
on
burden
the defendant
contrast,
Supreme
In
the United States
incompetence by
preponder-
establish
a
Court
an
has invalidated Oklahoma statute
upheld
ance of
evidence and
the trial
their
required
prove
defendants
finding that
court’s
defendant was
incompetency
convincing
clear
evi-
competent
559-60;
stand trial.
Id.
Oklahoma,
348,
Cooper
dence.
U.S.
517
7,
Leming,
see also State v.
3
14
S.W.3d
369,
1373,
116 S.Ct.
134
498
L.Ed.2d
(Tenn.Crim.App.1998)
(applying
same
(1996).
reaching
holding,
In
its
Court
standard).
forty-six
observed that
states
the fed-
Oody
standard is consistent with
government
eral
required
pros-
either
Supreme
the United States
Court’s hold-
ecution
compe-
to establish a defendant’s
ing
may
that defendants
be
properly
re-
tency
required
or
defendants to establish
quired to
their incompetency by
establish
incompetency by
of
preponderance
preponderance of the evidence. Medina v.
360-62,
evidence.
Id. at
116
S.Ct.
437,
California,
446,
112
U.S.
S.Ct.
emphasized
The Court further
(1992).
2572,
Medina,
L.Ed.2d 353
“clear
convincing
evidence standard
the Court held that a
requiring
statute
affects a class of
which the defen-
cases
defendants to establish their incompetency
already
dant has
he
demonstrated that
by preponderance
of the evidence did not
likely
incompetent.”
more
than not
Id. at
process.
due
In reaching
violate
that con- 364,
treatment of the
proof
burden
com- better reasoned choice is the
standard
petency proceedings,
operation
requires
in-
defendants to establish them
rule,
challenged
precedents,
and our
competency by a
preponderance of
evi-
say
we cannot
allocation
dence. This
standard
identified
proof
burden
criminal defendant
1991,
Appeals
the Court of Criminal
to prove incompetence “offends some
it
applied
has
been
since
time
no
principle
justice
so rooted
the tra-
apparent difficulty
prejudice
to either
people
ditions
conscience of out’
prosecution. Oody,
or the
defense
559;
ranked
Leming,
be
as fundamental.”
S.W.2d at
at 14.
54-56d;
Marsh,
§
Stat. Ann.
Ann.
Mo.
Stat.
State v.
278 .Kan.
3Q9 fully because the defendant declined waive Turner-Graham likewise testified *22 the clergy-penitent privilege. effectively Tenn. prosecution. See on behalf of the (2000). sum, § Code Ann. 24-1-206 In the exercise of defendant’s his trial privileges prevent did not the court Similarly, record the shows that the de- fully considering from the material evi- Mary during fense called Ann Hea the thorough and making dence a assessment competency hearing to testify about her of the relevant pertaining issues numerous interviews the defendant as competency to stand defendant’s trial. Ac- a social for public worker defender. we that the trial cordingly, conclude court determining After that part Hea of in excluding testimony did not err of team, the defense the trial court refused to the witnesses. testify allow her to because the defendant declined to the applicable privilege, waive Competency the CourL- i.e., the attorney-client privilege. Appointed Expert view, In our the trial court did not err in argues The defendant next excluding testimony. First, our con- trial erred in denying court his motion for clusion that a defendant bears the burden competency proceeding new on the of his establishing incompetency or her ground court-appointed expert, necessarily means that he or she has not Cynthia Turner-Graham, Dr. allegedly been found to be incompetent before or of knew one The victims. State main during competency proceeding itself. tains that there was no evidence establish result, nothing As prevents a defendant ing that Dr. Turner-Graham had conflict from invoking applicable privilege an dur- of interest or that prej the defendant was ing a competency proceeding as a matter any way. udiced Moreover, of law. the trial court is free to reconsider the issue of trial, the defendant’s in- of a part As motion for new privileges vocation of while of defendant introduced the affidavit of an Defender, defendant’s mental status presented Gary Assistant Public C. Tam- during hearing by both the defense kin. The affidavit that Tamkin stated prosecution. Dr. Turner-Graham friends and the latter had told him “she believed she Second, a right present defendant’s one of According met the victims.” evidence to meet burden of proof does affidavit, Tamkin’s Dr. Turner-Graham not eliminate the trial court’s discretion in said that her son of knew one the victims determining relevance materiality and that the victim had been her house. Here, the evidence. pre- defendant sented expert extensive testimony denying trial, show the motion for new competent he was not trial. stand trial court found it “inconceivable” that an The expert witnesses related basis of public possession assistant defender their opinions, analysis which included such information would wait until after family background, history defendant’s colleagues. trial to reveal it to his The injuries, of head and mental illness. Dr. trial court further noted the defense Auble, instance, testified presented testimony that evidence had no in support of gathered only “when, from the defendant the issue and had establish failed to well, but also attorneys, jmy the defendant’s long” how or for Dr. how Turner- consultant, investigators. Dr. Auble Graham knew one of the victims. The and Dr. effectively Amador testified Appeals upheld Court of Criminal the trial defense; behalf of the Dr. and Dr. ruling. Bernet court’s view, supports principles apply In our review even if a convic record ruling. trial The defendant failed upon court’s tion is based circumstantial evidence. (Tenn. Cole, to show that Dr. Turner-Graham had a State v. conflict testimony 2005). of interest or that her meeting allegedly
was affected
one
degree
of first
murder in-
offense
failed to pro-
the victims.
defendant
“premeditated
cludes a
and intentional kill-
any
regard
duce
facts with
Dr. Turner-
§
ing
Ann.
of another.” Tenn.Code
39-
*23
knowledge
the
Graham’s
of
victim and
13-202(a)(l) (2003). A
act
premeditated
is
any prejudice resulting
failed to establish
“an
done
the exercise
act
after
of reflection
testimony.
Dr.
from
Turner-Graham’s
judgment” and means that “the intent
and
Moreover, the record reveals that the trial
to
must
to
prior
kill
have been formed
the
competency
court conducted a full and fair
§
act
itself.” Tenn.Code Ann.
39-13-
proceeding
fully
and
considered the exten-
202(d) (2003). An
act refers to
intentional
by
presented
sive evidence
both the defen-
or
“the nature of the conduct
to a result of
prosecution.
dant and the
conclude
We
the
it
person’s
conduct when
is
con-
[a]
denying
that the trial court did not err in
objective
engage
or
scious
desire
the
a
the motion for
new trial and
new
the
conduct or cause
result.” Tenn.Code
competency hearing.
(2003).
39-ll-106(a)(18)
§Ann.
Guilt Phase Issues
Bland,
we identified
dis
Sufficiency
Evidence
that,
if
cussed circumstances
established
by
the
proof, may
the
warrant
trier of fact
The
argues
defendant
that
there
premeditation.
or
The
find
infer
cir
premeditation
insufficient
was
evidence
deadly
include
use of a
cumstances
the
support
and deliberation to
the first de
victim,
par
weapon upon an unarmed
the
gree murder convictions. The State main
any
cruelty
killing,
of a
threats or
ticular
that
the
was
tains
evidence
sufficient
kill
the
declarations of intent to
made
the
support
convictions.
defendant,
pro
proof that
the defendant
evaluating
sufficiency
the
When
any
to con
weapon,
preparations
cured a
evidence,
we must
wheth
determine
the
ceal
the crime undertaken before
“any
er
rational
trier of fact could have
committed,
the
defendant’s
crime
the
the crime
found
essential elements of
immediately
killing.
calm demeanor
after
v.
beyond
reasonable doubt.” Jackson
Bland,
at
S.W.2d
307, 319,
2781,
Virginia, 443 U.S.
99 S.Ct.
(1979) (emphasis
agree
the Court of Criminal
origi
3H (2003), robbery. especially aggravated ex from Baskin-Robbins. There was also 39-13-403(a) (2003). § connecting the Ann. tensive evidence defendant See TenmCode or his car to the victims: the defendant Dismiss Indictment Motion to Cave
had been seen
or near
Dunbar
area in which the victims’ bodies
asserts
the tri
defendant
found;
left
blood found on
defendant’s
failing
al court erred
to dismiss
a DNA
consis
profile
shoe had
the indictment did not
indictment because
Holmes;
that of
blood
Angela
tent with
charge
aggravating
circumstances used
right
found on the defendant’s
shoe had a
defendant,
penalty.
the death
seek
DNA
the de
profile
did
exclude
Jersey,
citing Apprendi v. New
530 U.S.
victims;
fendant
and fibers found on
466, 120
construed
include
of a
‘presentment
or indictment
right
argues
also
in a
The defendant
”
4,
Jury.’
597 n.
Ring, 536 U.S. at
Grand
trial
indictment
issue that
related
530
(quoting Apprendi,
ment.” et Tennessee Law Neil Cohen (4th ed.2003). Evidence, § 613.4 Penalty of Phase Issues view, In our the trial court erred Sufficiency Aggravating that the could not concluding defendant Circumstances summaries introduce of the the written contends that the evi- The defendant statements made Smith Zimmer 613(b) support jury’s dence was insufficient to Sgt. Knight. requires man Rule “heinous, atrocious, application or only given oppor an witnesses be deny aggravating cruel” circumstance set forth tunity explain prior their state Annotated 39- requirement during ment. This was met Tennessee Code section 204(i)(5)(2003). The State maintains the defense’s cross-examination Smith 13— during proof support and Zimmerman the State’s evidence was sufficient regarding prior their statements. More of this jury’s application aggravating 613(b) over, Rule expressly does not limit circumstance. form of impeaching party to one ex analysis de requires Our that we evidence, require nor it an trinsic does whether, evi viewing termine after party to between two impeaching choose light dence in a most favorable to available forms of extrinsic evidence. State, of fact have a rational trier could short, ruling, the trial court’s which limited aggravating found cir the existence testimony the defense to the use of the beyond cumstance a reasonable doubt. Sgt. Knight precluded the use of the State, Terry 160-61 statements, un
witnesses’ was erroneous (Tenn.2001). has Although defendant 613(b). Rule der challenged only aggrava one of the three however, conclude, We also case, ting circumstances in this we will the trial error did not affect the court’s Ann. address each turn. See Tenn.Code proceeding. result defendant 39-13-206(c)(l)(B) (2003) § re (requiring attempted to elicit inconsistencies between circumstances found aggravating view of in-court testimo Smith Zimmerman’s jury). ny prior their statements. defen *27 Zimmerman dant asked both Smith and 1. Tennessee Code Annotated on prior their statements about cross-ex 39-13-201p(i)(2) section amination; thus, giv witnesses both were aggravating deny to or their The circumstance opportunity explain en an sec then used found in Tennessee Code Annotated Sgt. statements. The defense 39~13-204(i)(2) (2003) tion is as follows: Knight’s testimony as extrinsic evidence of convicted previously “The defendant was prior inconsistent statements made (1) felonies, or more other than Although and Zimmerman. there one Smith statutory elements present charge, whose were written summaries of witnesses’ statements, to person[.]” did not the use of violence prior the defense es involve statutory language requires The plain written summaries would tablish that the prove that Sgt. prosecution than to defendant have been more effective (2) (1) conviction, felony a prior or for Knight’s testimony otherwise critical (3) sum, offense, statutory in- whose elements In the trial court’s er- the defense. than person. volved that” or more what “beyond the use violence to a “necessary Davis 618. death.” “Abuse” produce S.W.3d as an act that is “excessive” or is defined case, In the prosecution this established thing,” use “improper which makes aggravating relying this circumstance “in thing uses a a manner or which prior the defendant’s convictions contrary legal to the natural or rules for degree Tennessee for two counts of first its use.” especially aggra- murder and one count of robbery. vated These three convictions (Tenn. Odom, 18, 26 State v. felony clearly statuto- offenses whose 1996) (quoting Dictionary 11 Black’s Law ry elements involved use of violence (6th Morris, ed.1990)); see also State person. §§ See TenmCode Ann. 39- (Tenn.2000). 788, S.W.3d 13-202(a); prosecution also re- -403. case, In supports this the evidence lied on prior the defendant’s conviction physical of torture in- finding and serious Texas for the offense of aggravated rob- beyond necessary produce bery, parties which the stipulated was a Both death. victims were stabbed multi- felony. violent ple times. Both victims were stabbed in Accordingly, evidence was sufficient the throat or neck such severe force to support jury’s application of this penetrated bone; weapon that the murder aggravating beyond circumstance a rea- indeed, the inflicted on wounds Michelle sonable doubt. included five to her Mace cuts vertebral column “sawing” as a result of a motion. 2. Tennessee Code Annotated Both victims were and conscious alive 39-13-20k(i)(5) section they five fifteen minutes bled to The aggravating circumstance sum, great pain. death the evidence Tennessee Code Annotated section 39-13- jury’s support applica- was sufficient to 204(i)(5) applies where the “murder was aggravating tion of this circumstance be- heinous, especially atrocious, cruel in or yond a reasonable doubt. See State v. physical it involved torture or serious (Tenn.1997) Mann, beyond abuse that necessary produce (victim beaten, strangled, stabbed death.” The defendant argues times). eleven aggravating circumstance should not have applied been because the this case facts of Tennessee Annotated Code were not as or aggravated severe as other 39-13-20k(i)(6) section cases in which this circum aggravating applied. stance has been circumstance in aggravating “Torture” been in- has defined as “the Code section Tennessee Annotated 39-13- pain fliction of severe mental physical 204(i)(6) applies where “murder was upon the victim while he or she remains for the purpose avoiding, committed *28 Williams, alive and conscious.” State v. with, interfering preventing or lawful 517, (Tenn.1985). 690 529 S.W.2d “Serious or prosecution arrest of the defendant or physical beyond necessary abuse to 204(i)(6) Section focuses on a another.” produce death” has fol- been defined as committing motives a mur defendant’s in lows: der, it killings and is not limited the of eyewitnesses word “serious” to a matter or alludes those witnesses who know Terry,
of degree. identify The abuse the physical, must be or can defendant. See mental, Moreover, as opposed to must be at the and it 46 defen S.W.3d held, sentencing and prosecution ing hearing is the dant’s desire avoid arrest or killing need the sentence not be sole motive determines whether may just imprisonment, imprison- and be one of victim instead life life should be kill. motivating the purposes defendant parole, of or possibility ment without Id.; Davis, at 618-19. see also Godsey, v. 60 S.W.3d death. See State (Tenn.2001). 759, explained We have robbed,
Here, kid- the victims were degree first pool does not include area, stabbed, napped, taken a remote bargain a plea murder is cases which supported and The evidence abandoned. or respect punishment reached to the with pur- of the defendant’s finding one not in which the State does seek death poses committing the murders was penalty: robbery avoid or for the prosecution arrest kidnapping Accordingly, offenses. [Cjonsideration cases in which the of support evidence was sufficient to State, reasons, did not seek for whatever this cir-
jury’s application aggravating of re- penalty necessarily would death beyond a cumstance reasonable doubt. ultimately to scrutinize what is quire us discretionary prosecutorial decision. Proportionality previously declined to review We have a defendant has been sentenced Where discretion, prosecutorial of exercise death, apply comparative we must inappropri- it particularly and would be analysis to Ten- proportionality pursuant comparative conducting ate to so in do nessee Code Annotated section 39-13- review, our func- where proportionality (2003). 206(c)(1)(D) analysis identifies identifying tion limited to aberrant is aberrant, or arbitrary, capricious sentenc- sentences, identifying poten- death ing by the death sen- determining whether tial cases. capital “ punish- tence ‘disproportionate omitted) (citations (emphasis at Id. imposed ment others convicted of the ” added). Bland, at 662 same crime.’ 958 S.W.2d Harris, Pulley 42- (quoting 465 U.S. comparative Accordingly, our (1984)). 79 L.Ed.2d S.Ct. applicable proportionality review conducting analysis, this of numerous factors pool cases considers employs precedent-seeking Court (1) the means of regarding the offense: comparative re proportionality method of (3) death; (2) death; of the manner view, compare a in which we case (4) place killing; motivation for the involving similar defendants other cases (5) death; age, physical condi the victim’s Bland, 958 and similar crimes. See (6) condition; tion, psychological no defendants or S.W.2d at 665-67. While (7) premeditation; presence absence or alike, is dis crimes are a death sentence provocation; or presence the absence lacking “plainly if a case is proportionate (8) justification; presence the absence consistent with those circumstances (9) upon non- injury to and effect has been penalty cases where the death Bland, decedent victims. Id.
imposed.” at 668. numerous factors 667. We also consider (1) criminal prior about the defendant: repeatedly pool We have held (2) record, race, gender; any; age, if pro- by this Court its cases considered (3) mental, emotional, condi physical those first de- includes portionality review *29 (5) (4) tion; murder; coopera in role State gree murder cases which the (6) remorse; authorities; of level tion with penalty, capital death a sentenc- seeks the
317 (7) abnormalities, knowledge helplessness; including of the brain victim’s had several (8) Id.; potential injuries, brain a and for rehabilitation. traumatic bore Bane, strong psychotic State v. association to see also 57 428- statistical S.W.3d (Tenn.2001). pro- Although mental health 29 disorders. testified that the defendant was fessionals case, begin by reviewing In this we delusional, was schizophrenic and there nature the offenses. The defendant regarding also the defendant’s kidnapped robbed and victims in history malingering. Finally, no evi- Clarksville, Tennessee, 1997. April presented dence to show that the de- was defendant The drove the to a se- victims authorities, cooperated fendant with the cluded area and to death. stabbed them exhibited remorse for the or was killings, victims penetrating The suffered deep, amenable rehabilitation. stab wounds their The stab throats. had been wounds inflicted a knife reasons, with following For the we con several long enough blade inches the death applied clude that sentence as penetrate force their The vic- spines. defendant this case was not exces tims were alive five to disproportionate fifteen minutes after sive or when compared being stabbed and were conscious for other cases. defendants See Tenn.Code (2003). (D) eighty percent 39-13-206(c)(l)(A), (C), they § that time bled to Ann. death. defendant’s conduct inten- First, upheld this Court has sen death premeditated. tional and He acted alone tences in numerous similar where cases offenses, in these without any evidence of stabbed a victim defendant or victims. provocation justification. or Leach, 42; 148 Keough, See S.W.3d at 18 183; Bush, State v. S.W.3d 942 S.W.2d next regarding We consider evidence (Tenn.1997); Hines, 489 State v. 919 defendant and background. his (Tenn.1995); Thomp S.W.2d 573 State v. defendant was unemployed at the time of son, (Tenn.1989); 239 offenses, these and he prior convic- West, (Tenn.1989). 387 In sev S.W.2d murder, tions for first degree especially cases, case, eral present of these like the aggravated robbery, robbery. and He victim stabbed to death in course history also had a illness mental Leach, robbery of a felony. other damage brain stemming from number of 60; Bush, 507; S.W.3d at 942 S.W.2d at injuries. head Dr. Xavier Amador testi- Hines, West, 584; 919 S.W.2d at fied the defendant suffered from 397. S.W.2d at schizophrenia chronic paranoid of the cognitive disorder, type, documented Second, this Court has upheld numerous damage, brain and mental illness charac- death defen- involving sentences cases by aggressive impulsive terized be- prior dant with convictions for felonies Dr. havior. Pamela Auble testified that statutory whose elements involved the use damage the defendant’s brain caused the i.e., person, violence one significant defendant’s disorders mental aggravating applied by circumstances Leach, in pervasive See, and resulted impairments jury in case. e.g., this behavior, the defendant’s the defen- S.W.3d at As this has Court often said, had difficulty thinking, ag- dant aggravating exhibited circumstance delusions, gression, psychosis, objec- qualitatively persuasive “more that he govern- believed he was under than tively reliable aggravating other[]” Howell, ment surveillance and control. Dr. Rob- circumstances. State v. (Tenn.1993). Kessler ert testified that the defendant *30 318
Likewise, circumstances pen capital plainly case lacks upheld we have the death other those of cases alty involving pool in similar cases similar to cases applied upheld. a death has been aggravating two circumstances in which sentence heinous, reasons, case, i.e., Accordingly, foregoing for the murder imposed or cruel in it tor the defendant atrocious that involved sentences death injury beyond degree serious that neces in this ture or for the first murder offenses death, sary produce disproportionate. the murder was not and case are to avoid or the defen prevent committed Aggravating Mitigating and Weighing Leach, prosecution. or 148
dant’s arrest
Circumstances
at
circumstance
(aggravating
59
S.W.3d
(i)(5)); Bush,
(aggra
S.W.2d — disorder, pression, personality Process paranoid Confrontation neurosis, depressive paranoid chronic that Ten argues The defendant Howell, disorder); delusional violates capital sentencing scheme nessee’s (defendant damage). at 262 brain process to due and confrontation rights his be exact- under the United States Constitution not find that this case is We need apply do not nor the rules evidence prior every respect, case in cause ly like hear evidence permitted “more case is we determine that this must trustworthy. See reliable penalty that is not Ike other similar death or less” (rules 39-13-204(c) § Instead, Ann. identify aberrant Tenn.Code we must eases. during penalty applicable analyzing whether death sentences *31 responds the phase). The State that the de- trial. The defendant contends that argument fendant’s is without merit. the photographs of the victims taken at gruesome crime scene and intended were recently rejected argument We have jury. of the The passions inflame the raised In Berry, the defendant. we State the trial court proper maintains that observed that under Tennessee An- Code ly of photographs support admitted the in 39-13-204(c), notated section evidence that an aggravating circumstance. relevant the circumstances of the murder, the aggravating circumstances re- State, upon by
lied or mitigating A trial court is afforded broad circumstances if is admissible such evi- determining discretion in whether to admit probative dence has value the determi- photographs of the deceased a murder punishment. Berry, nation of 141 S.W.3d Odom, prosecution. 137 S.W.3d at 563-64. Although gives statute (Tenn.2004); Morris, 24 State v. wider discretion to the trial court than (Tenn.2000). 810-11 The deci normally permitted under the Tennessee sion to photographs admit will be reversed Evidence, explained: Rules of we if only the trial has court abused its discre discretion judges [T]he allowed and at- Odom, tion. at 588. 137 S.W.3d torneys during sentencing in first de- The record shows the trial court
gree murder is not cases unfettered. admitted of photograph one each victim Our constitutional require standards in- photographs crime scene. color quiry reliability, relevance, into the val- ue, and showed prejudicial deep effect of stab wounds sentencing inflicted preserve evidence to fundamental fair- the victims’ necks. The trial court con- ness protect rights of both the cluded that photographs proba- defendant and family. the victim’s in establishing tive an aggravating circum- rules of evidence can some instances stance, i.e., heinous, the murders were be helpful guides reaching these de- atrocious or in that they cruel involved admissibility. terminations of Trial physical beyond torture or abuse that nec- not, however, judges are required to ad- death, essary produce and that pro- strictly here rules of evidence. bative the photographs value of out- These rules are too restrictive and un- weighed unfair prejudice. the risk of wieldy in capital the arena sentencing. view, In our trial court did not abuse Sims, (quoting Id. State v. its photographs discretion. The were rele- (Tenn.2001)). an vant to aggravating establish circum- Accordingly, the standards set forth in stance not and were introduced for Tennessee Code Annotated section 39-13- purpose inflaming jury. Though 204(c) allow trial courts to exclude evi- graphic, unduly photographs were not may dence violate the constitutional gruesome unfairly prejudicial. More- guarantees process of due or confronta- over, the trial allowed court the admission argument, tion. The defendant’s there- only one of each photograph victim fore, is without merit. depict injuries the nature and extent of the Admissibility Photographs Accordingly, inflicted the defendant. the trial court did abuse its discretion argues
The defendant that the tri admitting admitting photographs al court erred in the crime scene photographs of during phase the victims penalty the victims. a trial must Jury Although
Failure Instruct on “Catck- court instruct all” Mitigating statutory mitigating Provision on the “catch-all” *32 provision, the in this was not omission case The that the tri argues defendant plain error. The court instructed the trial failing jury al court in the erred instruct jury statutory non-statutory on miti- and mitigating the “catch-all” circumstance on gating that could consid- circumstances be set out Tennessee Code Annotated sec ered. The trial court also instructed the 13—204(j)(9). tion allows This statute 39— jury mitigating that circumstances were jury “[a]ny other mitigat the consider statutory to” and specific “not limited the ing by factor which is the raised evidence sum, In trial non-statutory factors. the produced by prosecution the or either de encom- court’s instructions as whole guilt sentencing fense either the or passed statutory provision the “catch-all” hearing.” that responds Id. The State the jury and the that it could consid- informed court Ap trial and the Court of Criminal any by mitigating er circumstances raised peals properly held that the issue was penalty phas- the in the and guilt not waived the defendant did ob because Accordingly, trial. the trial es the motion ject or include the issue in the for statutory court’s on the failure instruct new trial. not af- mitigating provision “catch-all” did The that the trial record shows court rights fect the substantial defendant jury statutory instructed the on numerous P. plain not error. Tenn. R.Crim. non-statutory mitigating circum- 52(b). 13—204(j). §Ann. stances. Tenn.Code 39— non-statutory mitigating The circum- Misconduct Prosecutorial jury to the included charged
stances
the
Penalty
Phase
childhood,”
“history
defendant’s
“mental
disturbance,”
or
illness
emotional
contends that
the
defendant next
damage.” Although
injury
“brain
the
in failing
grant
trial
erred
a new
court
correctly asserts that the trial
defendant
hearing
prosecutorial
sentencing
due to
on
jury
court failed to instruct
argument. The
during closing
misconduct
above,
provision
“catch-all”
noted
tran-
argues
prosecutor’s
that
defendant
gave
script
that the trial court
shows
referring to a
misconduct included
victim’s
following instruction:
jury’s
thoughts, appealing
passion,
arriving
that in
provides
Tennessee law
using
photos of the
crime-scene
victims
punishment,
jury
at the
shall consid-
projector,
telling
indicated, any
previously
mitigat-
as
er
four
people
had
defendant
murdered
ing
raised
the evidence
circumstances
responds that
“cold
The State
blood.”
phase,
guilt-finding
sentencing
in the
prosecutorial misconduct and
there was no
include,
both,
phase, or
which shall
but
object many
that the defendant failed to
to,
[specif-
following:
not
are
limited
of the prosecutor’s statements.
statutory
non-statutory mitigating
ic
No distinction shall be
circumstances].
has often
This Court
observed
circum-
mitigating
made between
“closing argument
privi
that
is valuable
stances
and those otherwise raised
listed
unduly
lege
should not be
restricted.”
by the evidence.
Bane,
at 425. We have likewise
57 S.W.3d
may
not
object
recognized
prosecutor
to the in-
The defendant did
remarks,
structions,
engage
derogatory
appeal
nor did the defendant include
jury,
prejudice
motion
a new trial.
misstate
this issue in his
evidence,
arguments
or make
argues
not reason-
The defendant next
ably based on the evidence. State v.
prosecutor
engaged
misconduct
Bates,
(Tenn.1991)
using dollar bills to demonstrate the defen
(referring to defendant
dog”).
“rabid
greed.
denying
dant’s
the motion for
The trial
controlling
court has discretion in
trial,
new
the trial court observed that the
arguments
the course of
and will not be
asked,
prosecutor
“why
had
did this man
reversed absent an abuse of that discre-
this,”
placed money
do
and had then
on a
Bane,
tion.
evidence make based prosecutor’s argu- conclude that the We felony con underlying prior error, facts violent case, present although in the ments being aggra viction used to establish the sentencing proceed- not warrant do a new vating Odom, circumstance Tennessee Code prose- ing. Bigbee Unlike the 13—204(i)(2) Annotated where section not introduce evidence of the cutor did 39— its prior the conviction on face involved underlying prior defendant’s first facts the person. Big violence to See the degree Although the murder convictions. bee, (Tenn.1994); see repeatedly mentioned prosecutor S.W.2d Odom, four the people, also at 585.10 killed 137 S.W.3d defendant now 39-13-204(c). legislature statutory § Ann. The amend- In amended Tenn.Code provisions prosecution to allow the to intro- in this case. See applicable ment is underlying prior Odom, duce the facts violent felo- at 585. ny being penalty. used to seek death 8) statements; jury prior aware of the defendant’s sistent the evidence was degree convictions two counts of first support aggravating sufficient to cir- prosecu- murder and was aware that 9) jury; cumstances found relying tion was prior these convictions arbitrary death sentences were not dis- aggravating to establish an circumstance. 10) case; proportionate imposed in this the reference to the kill- While defendant’s support the evidence was sufficient to ing people four in “cold blood” could be jury’s finding aggravating that evidence of interpreted prior to mean that first outweighed of miti- circumstances degree murder offenses were similar 11) circumstances; gating capital sen- offenses, present that reference alone tencing statutes are not unconstitutional does not amount to misconduct of the de- they on the be basis allow evidence to severity gree Bigbee described process admitted violation of due addition, properly Odom. the trial court confrontation under the United States gave jury, two curative instructions 12) Constitution; trial court did not err presume which we must were followed in admitting crime photographs scene Shaw, jury. See State v. 13) during sentencing; victims the trial (Tenn.2001) (the jury presumed court did not commit reversible error instructions). to follow Although curative failing “catch-all” charge on the prosecutor’s argument prosecuto- statutory provision mitigating as to cir- error, rial misconduct and the defendant 14) cumstances; and the trial court did not objected, and the trial court sustained the denying alleged err in a new trial based on objection gave curative instructions. *35 prosecutorial during misconduct sentenc- Accordingly, we conclude that the trial ing. court did not abuse its discretion and that the prosecutorial misconduct judg- did not affect Appeals’ Court Criminal the outcome of the trial. ment is affirmed. The sentence of death day shall be carried out on the 5th
CONCLUSION October, 2005, unless otherwise ordered reviewing After the record and applica- proper authority.. this Court or other It 1) authority, ble we hold as follows: the defendant is appearing indigent, trial court did in finding not err appeal costs are taxed to the State. trial; 2) defendant was competent to stand the trial court did not err in excluding BIRCH, Jr., J., ADOLPHO A. filed a during competency hearing; separate concurring/dissenting opinion. 3) the trial refusing court did not err in hold a competency hearing new on the BIRCH, JR., J„ ADOLPHO A. basis that a court-appointed expert was concurring dissenting. and 4) biased; the evidence was sufficient to I majori- concur in the conclusion of the 5) support convictions; the defendant’s ty that Reid’s conviction should be af- denying trial court did not err in the de- death, firmed. As to the sentence of how- fendant’s motion to dismiss on the basis ever, respectfully I I dissent. continue aggravating circumstances were my 6) comparative adhere to view indictment; not stated in the the trial currently proportionality protocol review allowing prosecu- court did not err in 7) indictment; majority inadequate is embraced tion to amend the the trial arbitrary court did not commit in shield defendants from the and reversible error limiting prior imposition extrinsic evidence of incon- of the death disproportionate 324 Carter, 895, 114 S.W.3d 910- ing); § State v. Ann. 39-13-
penalty. See Tenn.Code 206(c)(1)(D) (1995 (Tenn.2003) (Birch, J., dissenting); Supp.). 11 247, Reid, 288-89 v. 91 S.W.3d State my expressed displea-
I have repeatedly
(Tenn.2002) (Birch, J., concurring and dis-
protocol since the
sure with the current
Austin,
447,
Bland,
senting);
v.
87 S.W.3d
State
958
time of its
in State v.
adoption
(Tenn.2002)
(Tenn.1997).
(Birch, J., dissenting);
v.
651
See State
467-68
S.W.2d
Thacker,
208, 256,
(Tenn.
2005
Stevens,
817,
164 S.W.3d
WL
852
v.
78 S.W.3d
State
27, 2005)(Birch, J.,
(Tenn., April
984397
2002) (Birch, J., concurring and dissent-
dissenting);
and
State v.
concurring
291,
McKinney, 74 S.W.3d
ing); State v.
(Tenn.2005)
Thomas,
361, 384,
158 S.W.3d
(Tenn.2002) (Birch, J., concurring
320-22
(Birch, J., concurring
dissenting);
Bane,
dissenting);
v.
57 S.W.3d
State
Faulkner,
48,
154
64
State v.
S.W.3d
(Tenn.2001)
J.,
(Birch,
411,
concur-
431-32
(Tenn.2005) (Birch, J., concurring and dis-
Stout,
v.
46
ring
dissenting);
State
Cole,
885,
v.
155 S.W.3d
senting); State
(Tenn.2001)
J.,
(Birch,
689, 720
S.W.3d
(Tenn.2005)
J.,
(Birch,
concurring and
910
State,
dissenting); Terry v.
concurring and
Robinson, 146
dissenting);
v.
S.W.3d
State
(Tenn.2001) (Birch,
147,
J.,
167
46 S.W.3d
(Tenn.2004) (Birch, J.,
469,
concurring
529
Sims,
1,
v.
45 S.W.3d
dissenting); State
Leach,
dissenting);
v.
148
State
(Tenn.2001) (Birch, J., concurring
23-24
(Tenn.2004) (Birch, J.,
S.W.3d, 42,
con-
68
Keen,
v.
31 S.W.3d
dissenting);
State
Davis,
dissenting); State v.
curring and
(Tenn.2000) (Birch, J.,
196,
dissent-
233-34
(Tenn.2004)
J.,
600,
(Birch,
S.W.3d
discussed, I believe
previously
ing). As
dissenting);
v. Ber-
concurring and
State
problems
three basic
(Tenn.2004)
ry,
S.W.3d
that:
analysis are
proportionality
current
(Birch, J.,
dissenting);
concurring and
overbroad,1
(1)
test is
proportionality
Holton,
v.
State
(2)
comparison
pool of cases used for
(Tenn.2004) (Birch, J., concurring and dis-
(3)
is too sub-
Davidson,
inadequate,2 and
review
senting);
discussed, in
(Tenn.2003) (Birch, J.,
previously
I
jective.3
have
dissent-
629-36
*36
J.,
(Birch,
justifies
dissenting).
majority
urged adopting
protocol
in which
1.
I have
factually
by
compared
such cases
stat-
would be
its decision not to include
each case
inappropriate
in which either a life sentence
to review
ing
similar cases
that it would be
imposed
capital punishment to determine
prosecutorial
discretion.
of
the exercise
However,
more consistent with
whether
the case is
July
study
in a
I note that
v.
cases. See State
“life” cases or "death”
Comptroller on the
the State
conducted
J.,
(Birch,
McKinney,
at 321
con-
74 S.W.3d
pen-
consequences
death
of the
costs and the
proto-
curring
dissenting). The current
prosecu-
was that
alty, one of the conclusions
finding proportionality if the case
col allows a
their
are inconsistent in
across the state
tors
existing
penalty
In
death
cases.
is similar to
view,
my
penalty.
In
pursuit of the death
words,
only
disproportionate
if
a case is
other
inconsistency
to arbitrariness
contributes
lacking
plainly
under review "is
the case
penalty.
imposition
See John
of the death
in similar
consistent with those
circumstances
Treasury,
Morgan, Comptroller
Ten-
of
G.
penalty has been
in which the death
cases
Penalty:
and Conse-
Costs
nessee’s Death
Bland,
(em-
imposed.”
aggravated robbery. felony murder merged premedi- convictions were into the Background] [Deleted: Factual Thereafter, tated murder convictions. Analysis appellant sentenced the to death Validity I. of Search Warrants upon aggrava- based the existence of three ting appellant pre- circumstances: the Appellant contends the trial court erred viously been convicted of one or to denying suppress more felo- his motion 759, dissenting).
moves from case to case.” 60 S.W.3d (Tenn.2001) (Birch, J., concurring and 145, discussing particularity to search warrants pursuant seized warrants, the court required for search 146, ar- Specifically, appellant and 189. stated: 145, gues authorizing that warrant LX of his 1997 Ford Escort
search
“red
both the Fourth Amendment to
Under
146,
and Arti-
[,]
Constitution
door ...
and warrant
autho-
United States
four
”
I,
7 of
Tennessee Consti-
cle
section
of
home located at
rizing the search
his
a search warrant must contain a
tution
Place,
Ordway
invalid because
are
of the items to be
particular description
they
particularity the
did not describe with
Henning,
seized. See State v.
ultimately
Appellant
items
seized.
further
(Tenn.1998)
(citing
claims that
the warrants are invalid for
cases).
requirement
This
serves as a
probable
passage
lack of
cause due
limitation,
in-
upon governmental
both
of time and that the
do not estab-
warrants
privacy
prop-
into a citizen’s
and
trusion
activity
lish a
the criminal
nexus between
of
erty rights
upon
the discretion
activity
home
the criminal
and his
conducting the
law enforcement officers
challenges
car.
warrant 189
Appellant
his
satisfy the particularity
search.
Id. To
grounds
on the
that he did not receive an
a warrant “must enable
requirement,
copy
authorizing
warrant
exact
reasonably
the searcher to
ascertain
samples
hair and blood
police
obtain
identify
things
which are authorized
from him and that
lacked
warrant
Henning,
to be seized.”
975 S.W.2d
it
probable cause because
failed
state
(internal quotations
and citations
hair
police
obtained blood and
omitted).
samples
compare
from the victims to
Reid,
327 in the circumstances, will be found character, that the evidence place and a authorizes for which warrant place unnecessary, ordinarily be would 93, Vann, v. 976 S.W.2d search. State impossible. (Tenn.1998); Longstreet, v. 105 Reid, at 273-74. 91 S.W.3d (Tenn.1981). In 97, addi- 619 S.W.2d set forth in Lea Applying principles informa- tion, contain the affidavit must Reid, the court warrants at issue to the magistrate tion which will allow noted that facts are too whether determine [wjarrants 149 authorized 146 and cause at probable stale to establish of the defendant’s residence searches sought. of the warrant time issuance Vann, may prop- identified” as at 105. While the items “which be 976 S.W.2d commission of lapse of time between the or the erty belonging to the victims res- and the issuance of a search a crime taurants, “may be any items the likelihood may warrant affect the death of the victims.” used to cause found, incriminating will be additionally authorized Warrant deter- case-by-case is a probable cause “any all financial records search for Meeks, mination. State indicating” money paid to include those 121, perm. app. (Tenn.Crim.App.), by the defendant on an automobile lease (Tenn.1993). making In this de- denied An around the time of the murders. termination, courts should consider warrant, each affidavit was attached to in- activity under the criminal whether setting forth the nature and circum- an vestigation was isolated event noting several stances of the crimes and of conduct. Courts protracted pattern the res- items that had been taken from the nature of the also should consider taurants, including bags. bank sought, the normal inferences property Ultimately, affirmed Id. at the court hide the a criminal would as to where trial court and this the decisions of the evidence, opportu- perpetrator’s and the Court, that the warrants which determined incriminating evidence. nity dispose requirement particularity met the because 458, 469-70 Dellinger, State v. S.W.3d character Smith, “the warrants described the (Tenn.2002); State v. (Tenn.1993). property particularity with sufficient reasonably as- ‘to enable the searcher to in- criminal under ... conduct [T]he subject not an isolated event. identify’ vestigation certain and the items warrants, the crimes in the As indicated seizure.” Id. apart, one month occurred almost ar response appellant’s crime committed on March the last that the information the affida guments prior than three months less was stale accompanying vits warrants being sought. time the warrants probable no cause to believe and there was any that had sought items The warrants of the crimes would be locat that evidence or the taken from the restaurants been residence, the court ex appellant’s ed at may have used to or that been victims requirement there be a amined the of the victims. The cause the death activity the criminal nexus between circumstances affidavits set out the searched and found that the area be and McDonald’s robber- Captain D’s an affida probable To establish cause ies, only per- the fact that the including from crimes had vit must set forth facts which had survived the son who left for stabbed and may repeatedly be drawn been reasonable conclusion *39 328 Yeargan,
dead. The affidavits farther noted that
novo. State v.
(Tenn.1997).
629
fingerprint
the defendant’s
had been re-
belonging
covered from an item
to one
Supreme
that
Appellant concedes
victims,
that
mur-
Captain
D’s
at
Court held two of the search warrants
extremely bloody,
der scenes were
that
Captain
in
case valid in the
D’s
issue
this
the victims’ blood could be on the defen-
appeal
argues
but
court should
clothing,
dant’s
the defendant
by the
reasoning
not follow the
set forth
in
possession
misinterpreted
could still have
his
or on
it
Court because
Supreme
in
principles
set forth
premises
misapplied
his
instruments of violence
Appellant argues
Lea.
the less exact-
personal
used to
murder the victims
requirement
forth in
ing particularity
set
belonging
Clearly,
items
to the victims.
only
property
to be
applies
Lea
when
provide
explanation
the affidavits
an
Ap-
nature.
illegal
seized is of an illicit or
why the
sought by
items
the warrants
in
pellant
danger
failing
contends that the
of,
fact,
capable
likely
are
are in
holding
precise
to abide
the Lea court’s
in
be hidden
the defendant’s resi-
interpretation of
expansive
is that a more
Where,
here,
....
a perpetrator
dence
“general
the case will result
incapaci-
believes he has eliminated or
by the state and fed-
prohibited
searches”
tated all witnesses so that law enforce-
Appellant
eral constitutions.
maintains
unlikely
ment officials are
to discover his
that,
the warrants at issue do not
because
activity,
criminal
it is neither unreason-
requirements
set forth
comply with
unlikely
perpetrator
able nor
Lea,
constitutionally
are
de-
warrants
keep clothing,
would
or the murder
court, .however, adopts the
fective. This
during
weapons, or items taken
Reid,
reasoning
Supreme
Court in
Smith,
crime at his residence.
See
273-76,
at
and determines that
S.W.3d
Therefore,
at
conclude
S.W.2d
572.
we
warrants 145 and 146 are valid.
that the trial court and Court of Crimi-
that he did not
Appellant contends
affi-
Appeals correctly
nal
found that the
189 at the time
copy
receive a
of warrant
from
davits set
forth sufficient facts
the warrant was executed
violation of
reasonably
magistrate
which the
could
Rule of Criminal Procedure
Tennessee
have concluded that a nexus
be-
existed
with re
dismissing the identical issue
place
tween the crime and the
to be
Reid,
spect
Supreme
warrant
searched and that the facts were suffi-
Court found:
ciently
probable
recent
to establish
undisputed
It is
that the officers exe-
cause.
cuting the warrants were aware of
Reid,
275-76.
S.W.3d
un-
whereabouts.
It is also
defendant’s
Appellant has not shown how the
disputed
copy
that the detectives left a
preponderates against the trial
inside the
of the search warrant
locked
trial
findings
court’s
this case. “[T]he
residence, from which the
defendant’s
suppression
of fact in a
findings
court’s
requires
The rule
property was taken.
upheld
the evidence
hearing
be
unless
will
nothing more....
was no one
[T]here
Odom,
preponderates otherwise.” State
the officers could
present on whom
(Tenn.1996). However,
it
warrant at the time was
serve the
to the facts as
application
therefore,
of the law
executed;
possible
it was not
question
copy
found
the trial court is
with the
for the officers to leave
41(c) does
law,
person being served. Rule
appellate
which the
court reviews de
*40
states, however, that “Paul Dennis
copy
officers to deliver a
of warrant
require
not
injured
or
may have been cut
Reid Jr.
person
to a
who is
the search warrant
occurred, thus
bleeding
where
(d)
point
Instead,
present.
not
subsection
or in
on the victims
leaving his blood either
taking
41 indicates that an officer
Rule
It is also
the crime scenes.
the area [of]
property
“give
under a
shall
warrant
Paul Den-
during
this contact
possible
person from
or from whose
whom
body hairs either
nis Reid Jr. left behind
premises
property
copy
taken a
was
crime
in the area of the
on the victims or
receipt
of the
and a
for the
warrant
Thus,
an
provided
the warrant
scenes.”
copy
leave the
property taken or shall
may
why
sought
the items
explanation for
receipt
place
at a
which the
from
forth suffi-
found on
and set
appellant
be
was taken.”
add-
property
(Emphasis
reasonably
magistrate to
cient facts for a
ed.)
case,
In this
officers left the
existed between the
conclude that a nexus
residence,
warrant at
the defendant’s
appellant’s hair and blood.
crime and
place
property
from
which the
by the
reasoning
on
set forth
Based
taken. This issue is
merit.
without
appellant’s prior appeal
Supreme Court
Reid,
20, 1995),
denied,
perm,
appeal
posi
document the
ies and was shown to
8, 1996).
Jan.
lake,
tion of the bodies
relation
by investigators and
the trail described
“any
Evidence is relevant if it has
lot,
witnesses,
and the cave.
parking
tendency
any
to make the
fact
existence of
the video
trial court determined that
The
consequence
that is of
to the determination
Appel
gruesome.”
not “particularly
of the action
probable
proba
more
or less
the video
argument
lant advances the
than
ble
it would be without the evidence.”
only
graphic
gruesome
because
However,
Tenn. R. Evid. 401.
relevant
victims
the video shows the bodies
“may
probative
evidence
be excluded if its
they
at
as
were found
the crime scene.
substantially
value is
outweighed
The crime scene video most murders
danger
prejudice,
of unfair
confusion of the
necessarily depict
of the
will
the bodies
issues, or misleading
jury.”
Tenn. R.
they
victims as
were found.
If this court
Prejudicial
Evid. 403.
not
evidence is
ex
accept appellant’s argument
Carruthers,
cluded as a matter of law.
videotapes of mur
regard, no crime scene
at
(citing
Gentry,
S.W.3d
State v.
881 ders would ever be admissible.
(Tenn.Crim.App.1993)).
S.W.2d
This Court further concludes
while
court must still determine the relevance of
videotape
other evidence ad-
and the
weigh
probative
the evidence and
its
value
may
mitted
this case
have contained
against any
prejudice.
undue
Id. The
material,
some of the same
it was not error
prejudice”
term “undue
has been defined
videotape.
Bigbee,
to admit the
See
tendency
suggest
undue
deci
“[a]n
(holding
at
it was not
basis, commonly,
an improper
sion on
videotape of the crime
error to admit a
though
necessarily,
an emotional one.”
although
depicted images
it
similar
scene
Banks,
Banks,
Nov. “[bjecause 1998.) ny. Appellant argues (Tenn. probative value Aug. ruling allowed the State trial court’s of the crime scene is not of the video *42 ... the position, an incredible take such This outweighed by prejudicial its effect. rule does ruling.” in The court erred so merit. issue is without rough attorney’s require not the district Jury Rough testimony to turned grand jury Notes of be III. Grand notes counsel, requires opposing over to the rule Appellant contends that the trial testimony for the the disclosure of witness by refusing court erred to order the State of purpose ascertaining consistency of the jury testimony. In a grand to disclose Appellant has testimony. the witness’ motion, pretrial appellant asked the trial by committed the any failed to show error jury of require grand court to disclosure merely asked appellant trial court. The testimony, including by notes taken the testimony that for the notes of the were Attorney pur Assistant General “for the and there by prosecutor, taken the ascertaining the witness’ pose of whether in allegations no actual of inconsistencies testimony the grand jury is consistent with Moreover, testimony. the grand jury testimony given by the witnesses before produce documents it does State cannot trial”, the court at least possess. This issue is without merit. testimony extent was revealed rough testimony by of *43 part trial court of was made (1994). Furthermore, judge a trial 687 has appellate record. “Issues which are not right participate to in voir dire examina by supported argument, citation to author- 24(a). P. tion. Tenn. R.Crim. Tennessee ities, appropriate or references to the rec- 24(a) provides: Rule of Criminal Procedure ord will be treated as waived in this court.” may respective ju “The court put 10(b). Ct.Crim.App. Appellant’s Tenn. R. appropriate questions regarding rors their appellate brief and the record are devoid qualifications jurors to serve in as any appellant of that was preju- ” case.... The trial court found that its by require diced the trial court’s failure to
juror questionnaire topics covered the suf provide appellant with infor- ficiently. Appellant has failed to show regarding past performance mation of that inquiries made the trial court jurors. prospective This issue is without improper inadequate or and has merit. failed to any show abuse of discretion Thus,
the trial court. without this issue is Constitutionality VI. of Tennessee merit. 22-1- Annotated Section Code 102 Information V. on Past Performance Appellant challenges two subsec Prospective Jurors Code Annotated section tions Tennessee Appellant contends that the trial court 22-1-102, deem certain in persons which in denying erred his requiring motion jurors. competent Specifically, to act as produce any State to information it had contends that the statute is un appellant regard past performance per constitutional to the extent it excludes prospective jurors. Appellant argued that convicted of sons who have been certain offenses, he did not have the an persons funds hire inves- infamous unsound mind, tigator to discover this information. The and habitual drunkards. Tenn.Code (4). 22-l-102(a)(l), §Ann. trial court denied the motion and ruled that such information could found in be making argument, appellant *44 Reid, not error. pose penalty death is vagueness.
void for
“In this regard,
this issue is without merit. IX.Separate Juries on Issues XII.Constitutionality of Tennessee Sentencing Guilt Annotated 39-13- Code Sections Appellant trial moved the court to have 204 and 39-13-206 jury guilt one determine his or innocence Appellant contends that Tennessee’s second to determine his sen- penalty death statutes are unconstitution- tence, which the trial court denied. On However, present any al. he fails con- appeal, appellant separate ju- asserts that challenges penalty stitutional to the death necessary right ries are to ensure his ato that have not previously statutes been re-
fair trial under the Tennessee and federal rejected. viewed and argument rejected constitutions. This Appellant upon relies the case of United by our supreme Dellinger, court State v. (D.Vt. Fell, F.Supp.2d States v. (Tenn.2002), 478-79 which 2002), in arguing capital that Tennessee’s appellant acknowledges. Appellant as- scheme, sentencing particularly Tennessee serts preserve this issue order to it for 39-13-204(c), Code Annotated section later review. This issue is without merit. unconstitutional because it allows the penalty imposed death be based on evi X.Constitutionality of Tennessee subject guarantees dence that is not Code Annotated Section 39- reliability required trustworthiness 13-204(h) *45 process the due and confrontation Appellant moved the trial court to de- clauses of the federal constitution. This clare Tennessee Code Annotated section rejected argument Court that in v. State 39-13-204(h) unconstitutional, arguing that Gdongalay Berry, No. M2001-02023- prohibiting the trial court from informing CCA-R3-DD, 1855099, 2003 at *7 WL jury as to the effect of a nonunanimous Nashville, 10, (Tenn.Crim.App. at Apr. in sentencing phase verdict violates his 2003) (holding sentencing that Tennessee’s rights state and federal constitutional to a scheme, including Tennessee Code Anno Appellant acknowledges fair trial. that 39-13-204(c), tated section is constitution argument rejected by this the Tennes- al). however, Appellant argues, Hall, in Supreme see Court State v. 958 Berry finding court erred in Tennessee’s 679, (Tenn.1997), S.W.2d 718 but asserts sentencing Specifi scheme constitutional. the issue in it preserve order to for later cally, contends that the court appellant Accordingly, review. this issue is without by rejecting analysis erred of the Fell merit. adopting reasoning court and of Unit Matthews, F.Supp.2d ed States v. 246 137 XI.Constitutionality Penalty of Death (N.D.N.Y.2002). Appellant maintains Appellant penal- contends that the death Berry ignore a central both Matthews and ty statute is because it unconstitutional Supreme in theme United States Court punishment constitutes cruel and unusual jurisprudence: that because death is a Amendment of the Eighth under the Unit- unique punishment terms of its irrevoca- ed con- scru Appellant bility, requires rigorous States Constitution. it more rejected criminal argument by pulous procedures cedes that this than other
335 reliability. acknowledges Appellant tution. to maximum matters ensure rejected argument coui't supreme Further, that because appellant contends Tran, 481, but asserts 864 S.W.2d Van does not sentencing scheme the Tennessee later it for appeal preserve the issue to Federal provision analogous contain is without Accordingly, this issue review. 408, trial allowing the Rule of Evidence merit. prejudicial if its court to exclude evidence value, outweighs probative effect its In- Dismiss XIV.[Deleted: Failure to any
trial court must
admit
Aggravating Fac-
Because
dictment
“probative”
the issue of
“relevant” or
Indictment]
not Listed in
tors
regardless
the evi
punishment,
of whether
Defendant
to Allow
XV.Failure
than
prejudicial
is reliable or more
dence
Jury
Address
Last
con
probative. Accordingly, appellant
up
Berry
tends that
court erred
trial court
Appellant contends that the
holding
constitutionality
of Tennessee
failing
allow him to address
erred
39-13-204(e)
Annotated
Code
section
in the
during closing arguments
last
Berry
urges
dispense
this court
with the
issue has
phase
the trial. This
penalty
unconstitutional,
rejected by
court.
supreme
find the
our
opinion,
statute
been
Smith,
issue is
S.W.2d at 24. This
857
and reverse this case.
without merit.
penalty
death
re
statutes have
peatedly
e.g.,
been held
See
constitutional.
Testing
Reliability of DNA
XYI.
Keen,
(Tenn.2000),
196,
v.
31
State
S.W.3d
233
the trial
Appellant contends
denied,
907,
t.
121
532 U.S.
S.Ct.
cer
motion for
denying
erred
his
court
1233,
(2001);
XIII.Failure to Dismiss reliability. State timony as to its I, 19 Pursuant Article Section (Tenn.2000). Scott, 746, 756-60 of Tennessee Constitution and on Scott The trial court herein relied trial Appellant contends that the court pretrial hearing to deter that a ruled denying testing erred his motion to dismiss the reliability DNA mine argues indictment based its of Arti- upon necessary. Appellant violation I, that, that a McDan although cle Section 19 of the Tennessee Consti- Scott held iel hearing impact challenges did not have be conducted victim evidence as to testing, DNA impact jury mitochondrial victim instruction State v. Nesbit, (Tenn.1998). case testing involves DNA rather PCR S.W.2d than testing. DNA Appel mitochondrial Specifically, argues victim appellant impact that, lant further “[b]ecause contends testimony prejudicial and irrelevant un- specific scientific reliability type capital sentencing der the structure estab- testing used this case has never been by lished Tennessee Annotated sec- Code established, the trial court erred in fail Nesbit, 39-13-204(g)(l) tion ing to hearing.” order Daniel [sic] S.W.2d should be excluded. Appellant asserts that Tennessee Code
The Tennessee Supreme Court has held
13—204(g)(1)
Annotated section
man-
“the
analysis
PCR
DNA
method of
an
39—
jury
dates that a
“shall” return a verdict of
inherently
trustworthy
reliable meth-
jury
that aggravating
death once
decides
od of
Begley,
identification.” State v.
they outweigh any
circumstances exist
(Tenn.1997).
In Begley,
mitigating
Appellant as-
circumstances.
the court held:
Nesbit,
that,
jury
is not
serts
under
[thereafter,
the PCR method of DNA
impact
the victim
permitted to consider
analysis shall be admissible into evi-
finding
until
that at least
after
dence
expert
without antecedent
testi-
aggravating circumstance exists and
one
mony as to its trustworthiness and relia-
circumstance(s)
aggravating
out-
bility, pursuant
to Tenn.Code Ann.
7—117(b)(1).
weigh any
circumstances be-
mitigating
§
provided
As
by that
24—
statute,
parties
yond
doubt.
are nevertheless
reasonable
allowed
proof
analysis
offer
that DNA
is not
Appellant
argues
also
Nesbit
trustworthy
and reliable. Tenn.Code
The instruc-
illogical.
instruction is
7—117(b)(2).
§Ann.
For example, a
24—
tion reads as follows:
party can
challenge
reliability of a
may
impact
You
consider the victim
evi-
particular
any given
test
case
determining
appropriate-
dence in
showing of sloppy handling
samples,
only if
penalty
you
ness of the death
failure
personnel
to train the
performing
first find
the existence
one or
the testing,
protocol,
failure to follow
aggravating
more
circumstances has
and the
a challenge,
like. Such
howev-
proven beyond
been
a reasonable doubt
er,
gowill
weight,
not the admissi-
by evidence
from the
independent
vic-
bility, of DNA evidence.
evidence,
tim impact
and find that the
(footnote omitted).
Id.
Herein,
at 478
cireumstance(s) found out-
aggravating
PCR
testing
DNA
utilized
the TBI
weigh
or more miti-
finding
of one
and LabCorp expert
witnesses.
accor-
gating
beyond a reason-
circumstances
*47
Begley,
dance with
conclude that
we
able doubt.
PCR DNA evidence was admissible with-
Nesbit,
Appellant aggravating circumstance contends that the trial court an doubt a reasonable beyond erred motions to exist denying his exclude all stances a common involved constituted any mitigating circumstances fenses outweigh that it court found plan. scheme beyond a reasonable doubt. that the insufficient facts to establish de- has been impact evidence Victim County in the Davidson operandi modus by constitutional the United States clared iden probative appellant’s incidents was the Tennessee Su- Supreme Court and County incident. Montgomery tity in the Tennessee, 501 Payne v. preme Court. perpetrator court The trial noted 808, 827, 115 L.Ed.2d U.S. S.Ct. re County incident Montgomery in the (1991); Nesbit, 978 S.W.2d the scene and the victims from moved Furthermore, advanced argument throats with a cutting them their killed testimony impact that victim is appellant County knife, Davidson whereas under irrelevant and should be excluded vic majority shot perpetrator sentencing sys- capital Tennessee’s current Therefore, at the two crime scenes. tims tem, rejected by has also been the Tennes- it not find the court concluded that could Reid, Supreme Court. see See method used in unique that there was (holding any at 282-83 contradiction committing required by the crimes as Nesbit in- between the statute and the (Tenn. Hoyt, inures to of the defen- struction the benefit court also Crim.App.1995). The trial dant; therefore, argument does not although of the witnesses found that some relief). This entitle the defendant to issue three of testify trials of all would merit. is without fenses, neces many of the witnesses were only one The trial sary for of the trials. [Deleted: XVIII. Amendment trials are “capital court then reasoned that Indictment] very complicated. A very lengthy type required in this of case is XIX. Failure to This Case Consolidate absorb, deal great process, and evaluate County with Davidson Cases factual the limited of information. Given 13, 1998, August appellant On cases, among consolidating similarities with filed a motion consolidate this case and, unnecessary would an them create pending County the two cases Davidson on the arguably, unmanageable burden pursuant Tennessee Rules Criminal on the jury.” The memorandum court’s 13(a) 8(b). Procedure The trial court con appropriateness of the factual issue legally found that while consolidation citations to spans pages solidation five under Rules of permissible Tennessee Proce case law and Rules Criminal Procedure it was not Criminal Thus, appellant mischaracterized dure. under the of this appropriate facts case. consolidation the trial court’s decision on specific it no reason by stating “gave Rule Tennessee of Criminal Procedure decision, explaining simply for its 8(b) permissive joinder if provides for of whether to order consolidation decision parts “offenses constitute of a common in the court’s discretion.” plan they scheme or or if are of same trial court is- or similar character.” The joinder pursuant Permissive memorandum, find- sued well-reasoned 8(b) of the Tennessee Rules of Crimi Rule under ing joinder appropriate governed by an abuse of nal Procedure is *48 Rule standard, Tennessee of Criminal Procedure court’s de and a trial discretion 8(b) it did evi- will not be because not have sufficient cision to consolidate offenses an incor- applied unless the court theory that the of- reversed support dence to legal rect standard or reached decision mined that because these witnesses were which against part team, is logic reasoning appellant’s appellant defense injustice required caused an would be party to the to waive the attor- complain- ney/client State, privilege. Appellant ing. Spicer refused to 442- waive his (Tenn.2000). privileges. minister, Rev. Ingle, appellant’s Joe Appellant asserts that prejudiced he was prepared testify that he had visited and by the court’s decision not to consolidate. counseled mentally prison- hundreds of ill He asserts that “if had been able past ers over the twenty-five years, and other, to hear the details of the similar appellant was the ill mentally prison- most murders it might well have afforded the er he had Ingle ever counseled. Rev. expert proof regarding Defendant’s well- spent more time with appellant than all of documented mental illnesses more cre- expert witnesses Appellant combined. dence.” After a review the record on that, although contends Ingle Rev. is not a issue, this Court cannot conclude that psychiatrist trained or psychologist, lay his the trial court abused its discretion de- perceptions appellant mirror those of- nying appellant’s motion to consolidate. Amador, fered Drs. Auble and which is This issue is without merit. “highly significant.” the affidavit' of- Ingle, fered Rev. he states that appel- Competency [Deleted: XX. lant is obsessed with the desire to be Appellant Trial] to Stand normal. When he was able to break Testimony XXI. and XXII. of Rev. Joe through appellant’s normalcy” “mask of Ingle, Mary Hea, Ann and Ron Lax get him to thoughts, reveal his true he Competency Hearing at appellant’s found thinking bizarre and de- At competency hearing, appellant Appellant lusional. Ingle advised Rev. sought testimony to introduce the of Re- that he being up” by “set govern- Hea, Ingle, Mary verend Joe Ann and Ron ment. Appellant further contends that Lax. He asserts that these three Ingle’s testimony witnesses Rev. would provid- have would ed a appellant’s perspective have testified as to in- disinterested on his men- tal health that competency could have Appellant to stand trial. con- rehabilitated the experts. defense tends that the information possessed by absolutely these witnesses is critical to a Ann Mary Hea is a social worker em- fair competency determination of his to ployed by County the Davidson Public De- stand trial. Ingle Rev. not allowed to fender’s Office. Hea would have testified testify appellant because refused to waive many substance of her interviews priest/parishioner privilege. Defense appellant. The trial court held that counsel withdrew witnesses Hea and Lax employed by public because Hea was office, because the court that it per- ruled would defender’s she stood in the same position attorney. Thereafter, mit as an open” “wide de- cross-examination as to fense counsel excused Ms. Hea as a wit- each of these witnesses matters rele- ness. vant to competency, though even defense requested
counsel that the cross-examina- Appellant sought also to call Ron Lax as tion of these witnesses be limited because competency hearing. witness Mr. they each appellant’s worked with “defense investigator Lax is a defense involved in team” appellant’s connection with appellant’s McDonald’s murders case County Davidson cases. The court County. sought deter- Davidson The defense
339
in his
actions and statements
question
upon
appellant’s
Lax based
two interviews
1999 inter-
interviews and the June
1999,
prior
during
and coun-
appellant
with
June
relevant,
they
be
would
views would
limit
that
the court
the
requested
sel
ripe
an
for cross-exami-
certainly be
area
Lax to
State’s cross-examination of
these
Lax
made his deter-
certainly
Mr.
nation.
court denied
interviews.
trial
the
two
competency
to appellant’s
mination as
ruling that
cross-examination
request,
on
relationship
his
involve-
upon
based
ask Lax
would be entitled to
the State
year
over the two
appellant’s case
ment
had conduct-
all of the interviews he
about
appellant, rather
period he worked with
would
appellant,
ed with
and the State
be
1999 inter-
solely on the two June
than
reports
all
Lax’s
able to discover
This
that the tri-
views.
court determines
As
interviews as Jenks material.
these
court did not abuse its discretion with
al
result,
defense
offer Lax as a
did not
ruling.
to this
regard
witness.
Ingle, appel-
As for witnesses Hea and
Appellant acknowledges that Tennessee
criminal defendant has
lant asserts
“wide-open”
to cross-
approach
follows
right
process
a due
to call witnesses on his
argues
examination but
that cross-exami-
Texas,
Washington v.
own behalf.
388
de-
questions
is limited to
that are
nation
14, 23,
1920,
dant’s
to stand trial once the
tabbsh the said
which evidence is
of
It
competency
issue
is raised.
is the
rebut and
pre-
sufficient to
overturn the
that,
position
appellant’s
competency
once
sanity,
sumption of
then it must be made
raised,
is
a criminal
presumed
defendant is
your
to appear to
satisfaction from all
incompetent until the
proves
State
other-
the
that
the
evidence
defendant
is of
State, however,
wise.
asserts that the
capacity
mental
give
sufficient
to
sane
is on
burden
the criminal
to
defendant
his
involving
advice to
counsel
the
his incompetency
establish
to
trial
stand
in
indictment.
charge
the
preponderance
by a
of
the evidence
added).
at
(emphasis
charge
Id.
This
on United
Shepard,
relies
States v.
support appellant’s
does not
contention
(6th Cir.1976),
F.2d
and State v.
issue of competency
once the
is
(Tenn.Crim.
Oody,
raised,
on
the burden is
the
State
App.1991). The trial
in
court
its
asserted
Instead,
prove competency.
Jordan re-
opinion
memorandum
on
motion for
quires
shifting
whereby
burden
new trial that
the law on the
of
burden
must
present
the defendant
first
evidence
is
proof
Appellant
unclear.
asserts
incompetency,
establishing
rebutting and
supreme court
cases of
Jordan
overturning
presumption
competen-
place
Black
the burden of
proof
cy.
If
presumption
competency
is
by “approving” jury
State
instructions that
rebutted,
sufficiently
then the burden
placed the
Appellant
burden on the State.
shifts to the State.
submits that
court
supreme
because the
is
Further,
mere
reference
a trial
highest
state,
court in
court
in
court’s
Black that
statement
the burden
appeals’
criminal
“is of
Oody
decision
no
of proof
prove compe-
was on the State to
consequence.”
tency
relegate that
does not
statement
that,
Court
This
determines
based on
the law in Tennessee. The
holding
Oody,
proof
competency
burden of
at a
Black,
issue,
competency
relevant
hearing rests on the criminal defendant to
was a
determination
the criminal de-
incompetency
establish
trial
stand
competent
fendant
in that case was
preponderance
Appel-
of the evidence.
stand trial under the standards enunciated
rebanee on Black
lant’s
and Jordan is
Duskey, Mackey,
the cases of
and Ben-
misplaced.
Jordan
simply
did not hold
ton, not
the burden at the
who bore
com-
prove
that the burden was on the
Black,
hearing.
petency
815 S.W.2d at
competency by preponderance
the evi-
Moreover,
173-75.
three months after the
Rather,
argued by
appellant.
dence
Black,
supreme
decision
court’s
the Ten-
adopted
shifting
Jordan
of the burden
grant
nessee
Court declined to
Supreme
following jury
it
when
found
permission
appeal Oody
and has not
was “in all
charge
things correct.” Jor-
this issue.
since addressed
dan, 135
at 329.
S.W.
presumes
presumed
law
that all
are of
persons
appellant
compe-
Because
contrary
hearing, appellant
right
sound mind until the
is made to tent at
had the
When, therefore, any
appear.
person
privileges,
prevented
to assert his
which
charged
punisha-
testifying.
with a criminal
issue from
offense
witnesses
imprisonment pleads
death or
This
concludes that
there was no
ble
Court
case,
insanity,
presents
rulings
as in
error in
trial court’s
on this
tending to
establishing
es-
issue.
*51
support
Testimony
appellant’s
record
not
Dr.
does
XXIII.
This issue is
arguments on this issue.
Xavier Amador
without merit.
trial court
Appellant contends that the
Dr. Xavier
forcing
expert
defense
erred
Testimony
[Deleted:
XXIY.
hear-
testify
competency
Amador to
at the
Turner-Graham]
of Dr.
him
time to:
ing
giving
without
sufficient
Testimony
Lane
of Elfreida
XXV.
(1)
tapes Dr. Bernet had
review cassette
during
appel-
his
with
recorded
interview
Lane’s
testimo-
During Elfeida
redirect
hearing
if
prior
competency
attorney
lant
to the
and
her
prosecuting
asked
ny, the
(2)
through
report.
review Dr.
had ever
the drive-thru
Turner-Graham’s
she
been
her
at
with
hearing
window
Baskin-Robbins
proof
competency
at the
replied,
daughter
appellant. Ms. Lane
Ama-
and
order
to Dr.
presented out of
due
Robbins,
through
go
did not
Baskin
“We
scheduling
The defense
dor’s
constraints.
an-
attempted to ask
sir.” Counsel then
presented Dr. Pamela
as its first
Auble
interrupted
Ms.
question,
other
and
Lane
Next,
expert.
presented
the State
said,
my
that said
daughter
“that was
testimony
Bernet, during
of Dr.
which
go through
not
Baskin
that not—-we did
fifteen
tapes
cassette
two horn* and
De-
my knowledge.”
to
Robbins. Not
in-
minute
appellant
interview
hearsay.
objected
fense counsel then
Cynthia
troduced. Dr.
Turner-Graham
in-
that
had not
responded
The State
it
Following
testimony,
testified next.
her
hearsay testimony. The
tended to elicit
court
call
asked defense counsel to
its
objection and in-
court
trial
sustained
Dr.
howev-
flight,
next witness.
Amador’s
disregard
portion
to
that
structed
er,
night,
had
previous
been cancelled the
it for
testimony and
of Ms. Lane’s
consider
yet
and he
not
Dr.
had
arrived. When
Thereafter,
asked
purpose.
no
the State
arrived,
Dr. Tur-
given
Amador
he was
her
Lane if
and a
Ms.
she
member
from
report
tapes
ner-Graham’s
gone through the
family and
appellant
Dr.
for
Bernet’s interview
his review.
Lane
After
drive-thru at Baskin-Robbins.
counsel
that
Defense
asked
Dr.
responded that
could not remember
she
given
Amador be
time to
additional
review
so,
if
doing
possible
counsel asked
it was
tapes
report upon
his arrival. The
that,
they
at
they
Logan’s,
after
dined
trial
request explaining
court denied the
stated
get
ice cream. Ms. Lane
went
thirty
Dr.
min
Amador had
least
doing
not
so.
that she could
remember
report,
utes to review the
he
this ex
point during
At no
tapes during
could
the lunch
review
counsel
a mis
change
request
did defense
Further,
explained
break.
court
court
Appellant
trial.
now asserts that the
tapes
defense counsel heard
could
sponte granted
sua
have
a mistrial.
should
concerning
advise him
the same.
in a criminal
A mistrial should be declared
Dr.
that his tes-
Amador never indicated
neces
only
of a “manifest
trial
the event
timony
compromised by
insufficient
v.
State
such
sity”
requires
action.
report
tapes.
or the
time
review
Hall,
(Tenn.1998)
S.W.2d
that, if
Appellant argues
Dr. Amador had
declaring
is to
purpose a mistrial
“The
given
review Dr.
been
additional time to
pro
judicial
damage
correct
done
interview,
Bernet’s
he would have
taped
has
which
cess when some event
occurred
verdict.” challenge
Dr. Ber-
equipped
impartial
been better
an
precludes
Williams,
(Tenm.Crim.
This court finds that
net’s conclusions.
App.1996). The
whether
provides
pertinent
determination of
Rule of Evidence 615
grant
mistrial rests within the sound
part:
request
party
“At
of a
court
witnesses,
discretion
the trial court. State v.
shall order
including rebuttal
Smith,
(Tenn.1994).
witnesses,
adju-
excluded at trial or other
reviewing
court should
overturn
dicatory hearing
... The court shall order
that decision absent an abuse of
persons
discretion.
all
not to
any
disclose
means
*52
Reid,
Moreover,
S.W.3d at
91
279.
any
testimony
excluded witnesses
live trial
establishing
necessity
burden of
for a
or
a
exhibits created
the courtroom
lies with
party seeking
mistrial
it. witness.” Tenn. R. Evid.
se-
615. The
Williams,
On ar appellant Crim.App.1992). This issue is without gues that the trial court erred. Tennessee merit. outweighed by substantially value is Exclusion of bative
XXVIII.
of unfair
confusion of
danger
prejudice,
TBI Memorandum
issues,
jury.” Tenn.
misleading
TBI
During the
cross-examination
However,
critical im
“[o]f
R. Evid. 403.
Zavero,
attempted
appellant
agent Samera
opening
portance here
the nature
into
a TBI memoran-
to introduce
evidence
merely
They
are intended
statements.
dum,
stated
named
person
which
jury,
gener
in a
judge
the trial
inform
could
excluded as
Jones
not be
James
of the nature of the case
way,
al
appel-
donor
DNA found
possible
outline,
party
each
in
generally, the facts
right shoe.
court excluded
lant’s
The trial
do not
prove.
tends to
Such statements
because
the memorandum as irrelevant
certainly
stipulations
are
amount
no
that James Jones
there was
or for
pleadings
a substitute for the
anything
Appel-
to do
case.
with the
Baptist
Mem’l
the evidence.” Harris
*53
argued that
memorandum was
lant
(Tenn.1978).
Hosp., mentioned
relevant because the State
evidence,
After
of the
we
review
in opening
Jones
statement.
James
that the
court did not err in
conclude
trial
statement,
During
opening
its
the State
excluding the TBI memorandum.
James
jury
told the
that the
had been a hard
case
any
was never
to have
in
Jones
shown
proof
and the
ease
law enforcement
such, any
volvement with the case. As
might
appellant
show that
not the first
was
to him in TBI memorandum is
reference
men, Jones,
in this case.
suspect
Three
to the
of the
irrelevant
determination
facts
Black, all
Shelly, and
of whom had a crack
issue is without
Accordingly,
at issue.
taking guns,
and were
problem
partying,
merit.
crack,
selling
may
them for
have been
suspects.
opening,
first
Later
Jeffrey
Testimony
Potter
XXIX.
expected
the State discussed the
DNA evi-
Appellant contends that the testi
appellant’s
dence found
shoes and com-
Jeffrey
have
mony of
Potter should
been
why
mented “that’s
DNA evidence
[the
of]
ap
with
excluded because his conversation
Shelly
given
Jones and
and Black were
in time
was too far removed
from
pellant
trial court
up.” The
found that the men-
provide
the Baskin-Robbins incident
during opening
tion of James Jones
state-
insight
meaningful
appellant’s
into
motive.
ment was insufficient
the rele-
to establish
testimony
a conversation
The
was about
any
vance of the document without
other
had
wherein the
appellant
Mr. Potter
with
evidence that James
had an involve-
Jones
robbery
told him
would be an
appellant
ment in the case.
make
trial
easy way
money.
court
that,
Appellant
contends
because
jury-out hearing
to determine when
held
injected
of James
the State
the name
comment was made in relation
identity
into the issue
of the
Jones
of the
Baskin-Robbins murders. Potter could
crimes,
of the
the memoran
perpetrator
not recall the date of the conversation but
if
is relevant.
is relevant
it
dum
Evidence
testified that
statement
made
“any tendency
the existence
has
to make
Baskin-Robbins
few months before the
any
consequence
fact that is of
also
murders. He
testified
state
probable
of the
more
determination
action
was made in late summer 1996.
ment
probable
Further,
or less
than it would be without
he could
that the statement
recall
Rele
term
during
the evidence.” Tenn. R. Evid. 401.
made
second
appellant’s
and that
“may
pro-
employment
Shoney’s
ap-
if its
vant evidence
be excluded
pellant
shortly
made the statement
by
before
jury.
decided
Under the circum
he was terminated.
stances,
The court ruled that
the trial court
did
err in ad
the statement was not too remote in
(cit
time mitting
challenged
evidence.” Id.
and allowed him testify
toas
the state-
(Tenn.
ing
v. King,
ment.
1986);
Sexton,
State v.
Potter testified before the ap- pellant made the statement in January This court cannot find that the use of 1997, shortly before he was fired. Defense styrofoam heads was inappropriate questioned counsel him on the discrepancy this case as the appellant urges. trial testimony, his replied he that he court did not ruling err its that the use home, gone it, thought about and tried styrofoam of the heads would assist Dr. get everything right. Harlan in demonstrating the location of the wounds. This issue is without merit.
This court cannot find that the court in allowing erred testify Potter to as to the [Deleted: XXXI. Failure to Allow statement made appellant. This issue Report] Introduction of Police is without merit. Sufficiency [Deleted: XXXII. Styrofoam XXX. Use of Heads evidence] Dr. Harlan as Demonstrative *54 XXXIII. Prosecutorial Misconduct Evidence in Guilt Phase Appellant challenges the use of Appellant pros contends that the by demonstrative evidence the medical ex ecutors committed numerous of acts inappropriate. aminer as During Dr. Har prosecutorial misconduct during their ar lan’s testimony, styrofoam he used heads guments in guilt phase.3 When re demonstrate, with a pen, the head viewing allegations of prosecutorial mis wounds suffered the victims. This conduct, general applied “[t]he test to be approved court the use of type this of is improper whether demonstrative conduct could evidence in State v. Robert Cole, E. have 02C01-9207-CR-00165, prejudice No. affected the verdict to the 1993 539185, State, WL of the defendant.” Harrington *3 (Tenn.Crim.App. at Jackson, 1993). 30, Cole, 338, 758, Dec. 215 Tenn. 385 759 Court (1965); Richardson, concluded that the evidence see also State v. “highly probative as to the issues to be S.W.2d 127 (Tenn.Crim.App.1998). Among things, appellant 3. challenges: other jury’s duty dicated it was the civic to find (1) the State’s reference to the DNA database appellant guilty. Appellant failed to make "big, huge” (2) as misleading jury; as to the objections alleged prose- these instances of implication by appellant the State that Appellant’s cutorial misconduct at trial. fail committed other referring murders object ure to constitutes waiver these issues county” the murders in "this and “our coun- Thornton, appeal. State v. 10 S.W.3d (3) ty;” implication by ap- the State that (Tenn.Crim.App.1999) (citing Tenn. pellant (4) testify; failed to the State’s refer- Green, 36(a)); R.App. P. State v. ence to the donor of blood on the shoes of 1997); Little, (Tenn.Crim.App. victims; (5) appellant belonging to the (holding object S.W.2d at 651 that failure to gloves State’s reference to latex that were prosecutor's alleged during misconduct found at the crime scene and their connection closing argument complaint). later waives (6) appellant; the State’s "bank of Accordingly, these issues are without merit. justice analogy” closing argument that in- Tackett no witnesses.” night,
middle of suggestion made the that he agreed deter- to the court’s factors relevant The appellant. mination are: prose argues Appellant of viewed complained 1. The conduct statement during opening cutor’s comment the facts and circumstances light of Tackett, not appellant, intimated that case; com about robbery statement made the undertaken curative measures 2. The therefore, prosecu mitting robbery; prosecution; by the court and prosecu misconduct. tor committed in mak- prosecutor The intent of 3. Danny Hackett’s regarding tor’s comments improper arguments; ing the improper. testimony suspected improp- of the cumulative effect have Moreover, could not the comments in the any other errors conduct and er prejudice verdict affected the record; and Tackett jury heard appellant, because strength and weakness 5. The relative robbery sugges brought up the testify he the case. merit. This issue is without tion. Nesbit, S.W.2d at 894. visual Writing the word “match” on testimony Danny Tackett’s
Reference to aid statement, prosecu- During opening argument, prosecutor During closing tor commented: his in connection with a visual aid used from testimony hear going You are in the argument as to the fiber co- Danny maybe another Tackett “match” was the word upon case which ... think Mr. Tackett worker We objected, arguing The defense written. you to tell that he worked with going identity, implied “match” the word Shoney’s ... and that Mr. Reid at a wit- testimony expert whereas *55 of them there was talk when the two found on been that the fibers ness had money, by not do- raising worked about fi- “consistent” with clothing were victims’ center or nating money at the Plasma trial car. The appellant’s bers found was talk anything like that. There objection, stating, “The court overruled conducting rob- raising money by about closing argument that the provide rules beries. subject matter limited to the the State is and the argument in the State’s court covered objected, and the Defense counsel Also the law by the defendant. argument The conference. conducted sidebar on the may comment provides Tack- that counsel counsel that court reminded defense inferences that reasonable evidence and the conversation testimony about ett’s Discussion therefrom. trial, finding may be drawn he be admissible at would included in the State’s fibers was then ad- about made. The court previously covered It was also opening argument. limit his remarks prosecutor vised So, the argument. in his defendant believed evidence that he anticipated is fair subject matter that provide not oth- rules forthcoming, faith would be good explained, further trial court game.” that The trial, testified At Tackett erwise. ... if match of the word specific “The use him how he asked about appellant when it, evidence. that’s his take on the uses committing he money, suggested he get could thinks the on what he can comment money and He making a means of robbery as heard the evi- know, jury ... The is you place, “fast food mentioned a 346
dence, State, 344, up out and its them to sort v. 140 Tenn. 345-46 [sic] S.W. (1918). The argues prose- whether his use the word match is simply demonstrating cutor was to the appropriate or not.” jury it that money motivated closing argument is a rob, appellant kidnap, and murder the privilege valuable for both the State victims, pictures being project- whose were the defense and counsel is afforded wide ed, to eliminate the victims as wit- in presenting argument latitude final actions, dramatic, although These nesses. Cribbs, jury. See State improper were “conduct that it af- not so Cone, (Tenn.1998); State v. Harrington, verdict.” fected the (Tenn.1984). However, S.W.2d 759. is without S.W.2d at This issue merit. prosecutor’s argument be when “veers afforded, yond the wide latitude test reference Biblical determining required if reversal is is closing argument, prosecutor ver impropriety whether ‘affected the stated, you try “No matter how hard mur- ” prejudice of the dict defendant.’ necessary der out. If will the stones Cribbs, Appellant at 783. ar cry themselves will out. The shoes them- “match” gues the use word cry they out as did this selves will case. proof stronger characterized the as much out, They show the Blood will will blood. was, actually thereby than it which misled get and it this couldn’t did case. He rid jury. did prosecutor not exceed speck Appellant every of blood.” con- given writing the latitude him the word this was based on argument tends that Moreover, match on the visual aid. passage from the book of Habbukuk in the “match” on visual aid word did Habbukuk 2: Bible. 9-11 reads fol- the prejudice appel affect verdict to lows: jury experts’
lant. The heard the testimo gets 9. to him evil for his Woe who on ny the fibers the victims’ clothes house, high, to set to be his nest on safe experts “consistent.” The were from the reach of harm! thoroughly point. cross-examined your 10. You have devised shame to Additionally, jury was instructed by cutting any peoples; you off house arguments are not to be consid counsel your have forfeited life. presumed evidence. The ered cry out from For stone will *56 Smith, State v. 893
follow instructions. wall, and the beam from the woodwork (Tenn.1994). is 914 This issue S.W.2d respond. merit.
without (Revised 2:9-11 Habbukuk Standard Edi- tion). Appellant contempo- did not make jury’s Appeal passion to objection to com- prosecutor’s raneous the argument, In closing prosecu the Therefore, ments. is this issue waived. Thornton, placed of each victim at pictures (citing tor See 234 S.W.3d Green, 36(a)); P. R.App. them Tenn. projector and left there for seven S.W.2d Little, 188; at 651. at S.W.2d point, prosecutor minutes. At some the projector threw dollar bills on the used to appellant did not make a con- Although Appel display images the of the victims. temporaneous objection the Biblical ref- that, acts, these prose erence, lant asserts mistrial after he moved for a of passion closing argument cutor intended to inflame the of completion the State’s the courtroom. jury, which and after the had left prohibited. is See Watkins religious na- of a reference was totality that the on the argued based Appellant error, found but and constituted argument, specifically ture prosecutor’s of the that the reference, The court noted pic- it harmless. the Biblical including obscurity. for one of relative projector “passage on the is tures of the victims comments, unlikely that Therefore, it minutes, the court finds gloves the latex seven re- argu- actually of the justice analogy, of aware jurors and the bank were sympa- meaning. passion its appealed passage ment of the mainder and/or be jury. A mistrial should thy given of the true the context particularly This is only in the in a criminal trial declared Based on our review of the reference.” necessity” that re- a “manifest record, event of prosecutor’s find that the we Hall, at such action. 976 S.W.2d quires did not affect the verdict reference Biblical declaring a mistrial purpose 147. “The that the appellant and prejudice judicial damage done to the is to correct not abuse its discretion. trial court did occurred some event has process when Therefore, merit. this issue without verdict.” precludes impartial an which Photographs Life of Victims XXXIV.
Williams, 929 at 388. The deter- S.W.2d grant mination of whether mistrial introduc challenges the Appellant of the within the sound discretion rests victims before photographs of the tion Smith, trial court. im during the victim they were murdered not overturn reviewing court should that the testimony. Appellant asserts pact absent an abuse of discretion. decision only to inflame photographs served Reid, case, In at 279. their jurors appeal emotions. manifest judge trial found there was no photographs State counters agree. necessity requiring a mistrial. We impact of the issue probative family members and on the victims’ appeal, appellant correctly notes death
On characteristics which during closing unique those any references to the Bible show Cribbs, into the life of argument prohibited. provide glimpse are See a brief court has court has held: supreme supreme S.W.2d at 783. The victims. The harmless held a Biblical reference be impact victim [generally, (holding prosecutor’s error. id. at 783 See information to show limited to should be Bible, a man quotation to “Whatever pro which unique those characteristics harmless). sows, reaped” as so shall be into the life of the glimpse vide brief Cribbs, acknowledged in his prosecutor killed, con individual who has been him uncomfortable to closing that it made prospective circum temporaneous and references, then but he mention Biblical surrounding the individual’s stances passage. reap you what sow quoted the fi death, circumstances and how those jury that he explained to the Id. He then emotionally, psychologically nancially, offended anyone want to be did not impacted upon members physically *57 reference, very impor it a but was Biblical family. the victim’s immediate Notwithstanding, Id. part tant of our law. case, Nesbit, In this at 887. 978 S.W.2d com prosecutor’s held that the the court pro- introduced to photographs the they did not harmless because ments were glimpse into the fives vide a brief jury. affect the verdict of the victims, According- by Nesbit. as allowed allowing in did not err ly, the court denying appellant’s
In the order photographs. trial, of these trial court found introduction new motion for Photographs defense direct exami- [Deleted: XXXV. Later in counsel’s Allen, nation Ms. counsel asked how Scene] of Victims at Crime of impact- have appellant’s injury brain would Testimony Impact XXXVI. Victim ability to to the rules estab- ed his conform of Tobaris Holmes objected, lished in home. The State Appellant next contends that the such her area of arguing that was outside trial have victim court should excluded the objec- expertise. The court overruled dur impact testimony Tobaris Holmes tion, Next, responded. witness ing phase, Mr. penalty wherein people Allen confirmed with after Ms. that daughter Ryane Holmes that his testified rules, injuries difficulty have with brain Angela.” Angela’s picture “kisses and not Again, so?” defense counsel asked: “How testimony given This in response was objected questioning as Holmes, prosecutor’s question, “Mr. being expertise. Ms. Allen’s area of outside your how has murder Angela’s affected objec- This time court sustained family?” Appellant object did not to Mr. tion. therefore, testimony; issue Holmes’s this It is longstanding principle Thornton, at is waived. See S.W.3d “propriety, manner and scope, that Green, 36(a)); (citing R.App. P. Tenn. examination of is with control of witnesses Little, 188; at at 651. S.W.2d S.W.2d Harris, in court’s the trial discretion.” Further, was we find this statement at 72. Ms. testified that Allen proper testimony Nes impact victim under she, speech language pathologist, was as bit, this Accordingly, 978 S.W.2d at helping more involved treatment
issue is without merit. function, people injuries brain more in neuropsychologist while Testimony XXXVII. of Patricia Allen volved in the evaluation of how brain is penalty Patricia Allen testified at the of the individual. working and behavior phase language as a speech pathologist. the trial court not err Accordingly, did She testified that she people evaluates testifying Ms. Allen from as to precluding they injuries with brain to determine if injury how a with a brain would person injury. have been the brain affected Moreover, difficulty have with rules. explained “language is a She code found, error in any the trial court such thinking.” She reflects how someone is testimony precluding the was harmless. that, in evaluating patient, then testified proof. Appellant did make an offer their writ- “reading she would look at Therefore, he failed to demonstrate how he ing they put together and the words ruling. the trial court’s prejudiced sentences, also look their we would Galmore, 120, 125 See State v. skills; things ability such thinking as their (Tenn.1999) proof (although an offer is remember, attend, problems to solve issue, it unnecessary preserve may Things that.” She to reason. like way prejudice). to demonstrate only be the language explained speech further Furthermore, the other de Ms. Allen and in treat- pathologist was more involved ap as to experts length fense testified at inju- people ment and with brain helping abnormalities pellant’s physical and mental function, neuropsychologist Therefore, while a ries to and the effects the same. objec sustaining involved the evaluation any would be more error State’s This issue is without working and the behav- tion was harmless. how brain *58 merit. ior of the individual. in jury instructions Charge concerning Jury issues
XXXVIII,
XL.
raise
XXXIX and
a waiver
trial constitutes
a motion for new
Mitigating Factors
appeal.
purposes
for
issues
of such
the trial
contends that
Appellant
P.
(3)(e);
R.App.
P.
Tenn.
R.App.
Tenn.
jury
to
charging
in
erred
court
36(a).
First,
respects.
in
factors
three
mitigating
in
fail
erred
Notwithstanding appellant’s
the trial court
contends that
he
in a motion
the issue
jury
object
on the statuto
or raise
refusing
charge
ure to
trial,
trial
contends that
he
forth in Tennessee Code
for new
ry mitigator set
catch-all miti-
charge
court’s failure
18—204(j)(6),which
Annotated section 89—
be
error and should
gator
plain
constitutes
“the
acted under
provides that
defendant
court. See Tenn. R.Crim.
reviewed
this
duress or under the substantial
extreme
52(b);
Ogle,
v.
Finally, that the trial appellant contends applying doubt and also a reasonable charged my have the “catch-all” in- give you court should as I guidelines go An- about mitigator you set forth Tennessee Code that tell how structions circum- 13—204(j)(9).Appellant considering aggravating those notated section 39— they or not out- and whether not, however, stances raise this issue at trial did beyond a reasonable doubt weigh Failure to in his motion for new trial. evidence, you if find such ex- mitigation objection consti- contemporaneous make a ists, during the that has been raised Thornton, of the issue. See tutes a waiver trial. course of the R.App. P. (citing at 234 Tenn. 10 S.W.3d 188; Little, 36(a)); Green, argues this statement Appellant 947 S.W.2d implicitly, Moreover, encouraged, at least failure to the court at 651. *59 jury concentrate the State’s Gatha BLANKENSHIP proof by opposed appel- raised Appellant allege lant. has failed how him. prejudiced statement This issue SYSTEMS, AMERICAN ORDNANCE is without merit. Army LLS, Milan d/b/a Ammunition Plant. [Deleted: XLII. Prosecutorial During Penalty Misconduct Tennessee, Supreme Court Phase] at Jackson. April 2005 Session. Heinous, [Deleted:
XLIII. Atrocious 12, 2005. May Aggravating Factor] and Cruel Sufficiency [Deleted: of Evidence XLIV. Support Jury’s Finding Ag-
gravating Circumstances Out- weighed Mitigating Beyond Factors Doubt]
a Reasonable Proportionality [Deleted: XLV. Review]
CONCLUSION In accordance with Ann. Tenn.Code 39-13-206(c), § we have considered the entire record and conclude that the sen- imposed tence of death has not been arbi- trarily, supports the evidence jury’s finding statutory circum-
stances, supports the evidence jury’s finding aggravating circum- outweigh mitigating
stances circum- doubt, beyond stances a reasonable disproportionate. that the sentence is not We have also reviewed all issues raised no appellant and conclude there is revers- result, judgments of ible error. As a the sentence of death the trial court and are affirmed. imposed notes taken Questionnaire Jury Limited IV. attorney general. assistant district Appellant argues that the trial court alternative, sought the motion for the by denying erred his motion to dissemi- court the notes in-camera to review prospective jurors questionnaire nate a ascertain whether or not the witnesses’ jurors’ gender, birth inquiring about the testimony consistent with the testimo date, and econom- background, educational ny that gave the witnesses before the appellant argues ic Specifically, class. grand jury. granted appel trial court not cover the questionnaire the court’s did jury lant’s motion to the extent grand topics in sufficient detail to evaluate testimony rough was revealed notes tak rely- representation cognizable groups, of by attorney general en the assistant but Missouri, 357, Duren v. ing 489 U.S. upon it grand jury denied as to the disclosure of (1979), 664, L.Ed.2d 579 which 99 S.Ct. testimony. responded it chal- right that a has a holds defendant possess any rough did not notes of the adequate repre- lenge the venire to ensure grand jury testimony. groups. cognizable sentation of appeal, appellant excep- On relies on the por fails to cite to the Appellant secrecy grand jury tion to the rule of containing record appellate tion of the testimony found Tennessee Rule of questionnaire requested he be disseminat 6(k)(2), which allows a Criminal Procedure Further, ap it does not jury. ed to the member of the “required grand to be pear questionnaire that the submitted testimony court to of a disclose jurors by the trial court was made them, pur- before for the witness examined part appellate record. “Issues it is consis- pose ascertaining by argument, whether ci supported are not which authorities, appropriate before refer given tent with that the witness tation to or be treated as court,” ences to the record will argue the trial court questionnaire adequately waived this court.” Tenn. R. Ct.Crim. court’s did not 10(b). address this issue and that voir dire is an App. possibility insufficient tool because of the Moreover, the control of voir dire faulty memory false statement as to proceedings rests within the sound discre past service. court, tion of the trial and this court will Appellant portion fails to cite the exercise of not interfere with this dis appellate containing ques- record appears cretion unless clear abuse on the challenges respect tionnaire he to this Howell, face record. State Further, appear issue. it does not denied, (Tenn.1993), cert. questionnaire jurors by submitted to the 510 U.S. S.Ct. L.Ed.2d
Notes
his
notes
juror questionnaire
developed through
jury
right
service is a
secured to all
that
Appellant
voir dire.
on appeal
contends
and state consti
citizens under the federal
that
ruling
the trial court’s
violated his
McCollum,
Georgia
tutions.
v.
505 U.S.
I,
right
jury
to a
trial
in
found
Article
42, 48-50,
2348,